County Prosecutor Bill Mason has two private e-mail accounts with which he sometimes conducts business, which should make their contents public records. But he's figured out how to keep some of them secret.
Mason told The Plain Dealer before the election that he was not opposed to "open discovery," or full disclosure of evidence against the accused. But now that he's won and county judges are forcing his hand, he's working on a plan to keep court records secret.
Mason is streamlining the indictment process by creating a computer system that cuts down on time. But he seems intent on giving his office total control over the software.
Mason is treating journalists, defendants and citizens not just as adversaries but enemies. And at the moment, he's winning.
In October, Scene published a lengthy examination of some lesser-known aspects of Mason's record, such as his draconian stand on discovery, well-documented racial disparity in the handling of drug cases, stacking his staff with political operatives and his apparent disinterest in investigating friends and allies. Mason refused to be interviewed for the article, then retaliated for it in petty ways, like removing Scene from the e-mail list for court updates, and delaying, and sometimes stonewalling, public records requests.
In an effort to learn more about how this elected official runs his taxpayer-funded office, we requested e-mails sent to and from his county e-mail account. Courts have long established that work-related e-mails are public record and should be turned over upon request to journalists or citizens. First, we were told by spokesman Ryan Miday that Mason doesn't use e-mail. So we requested the e-mails of his assistant, Angela Williamson, who has worked closely with Mason since his days in Parma. Typically, requests like these are forwarded to an office's IT department. Some tech-savvy staffer copies the e-mails and turns them over to the relevant law department for review (so that non-public info, like Social Security numbers and passwords, can be redacted). When Scene requested e-mails from the accounts of the Cleveland Mayor's Chief of Staff Ken Silliman earlier this year, Silliman had no advance warning and little say as to what should be left out of the request.
That's not how it works in Mason's office.
In this request and others, employees were personally asked to hand over the e-mails. No effort was made to verify that these employees provided everything responsive to our request. Imagine if an IRS audit consisted only of asking the suspected tax cheat to turn over the records that he felt would be helpful with the investigation.
Still, from the e-mails we were given, we quickly discovered that many sent to Williamson originated from a private AOL account bearing Mason's name. There's no way to tell whether Mason uses this account to conduct public business. Former Ohio Attorney General Marc Dann was adamant that work-related e-mails were public records, regardless of who had set up the account or through what service. (Ironically, this policy led to the revelation that he was having an affair with his scheduler, resulting in his political demise.)
"[That] e-mail is an old account that was set up for the public," responded Miday. "Realizing we no longer need it, we are phasing it out." However, that account was still active two weeks ago and was Mason's point of contact with the Ohio Prosecutors Association.
On a permit related to the new mansion his brother just built for him in Seven Hills, Mason lists another AOL account as a preferred point of contact.
Miday says there are no records available from that account. And if there were, he apparently wouldn't release them anyway. He cites a part of Ohio's Revised Code that limits available records to those that "document the organization, functions, policies, decisions, procedures, operations, or other activities of the office," making Mason's county office far more secretive than the state attorney general's office, which has routinely fulfilled similar requests.
Miday also has repeatedly cited a new court opinion that Mason's office believes further limits access to public records.
In June 2007, a Columbus lawyer named Jeffrey Glasgow requested e-mails from two state representatives "including but not limited to" a certain piece of legislation. On September 25 of this year, the Republican-dominated Ohio Supreme Court ruled in favor of the representatives, stating "his request was overbroad and therefore not enforceable."
But the meaning of that ruling is disputed. "I don't think Glasgow changes anything," says attorney David Marburger, who represents The Plain Dealer in such matters and is writing a book about how to successfully request public records. Marburger says that all Glasgow changes is the way requests are worded: "You can't use 'including but not limited to' anymore. You just have to be a little more specific."
Still, Miday has cited the Glasgow opinion in his responses to Scene's requests for copies of e-mails from Mason's private accounts within a short timeframe and specific material related to no-bid contracts awarded to Mason's long-time political allies.
One such ally is Tom Coury, owner of Pointe Blank Solutions, the computer software firm that is constructing a new digital criminal case management system to reduce the time between arrest and arraignment. An employee of Coury's company registered the web domain for Mason's online campaign site. Coury is also the cousin of Mason's former first-assistant prosecutor, Bob Coury.
This new system, known as Justice Matters, is touted as a way to move criminals through the courts faster and reduce the size of the jail population. Or, viewed more suspiciously, it delivers all records to the prosecutor's office into a software system that Mason's friend built from scratch. Police reports, witness statements, evidence lists, everything that can make or break a case, would be stored digitally in a program designed for the prosecutor. There appears to be little independent oversight in the development of this software. Coury has not yet provided passwords to some court officials who have requested access.
Several criminals were granted new trials recently, after lawyers discovered that former star assistant prosecutor Carmen Marino had withheld evidence in trials dating back decades. Marino allowed one witness to lie under oath to get the conviction he needed. Mason used to hand out the Carmen Marino Award to his best prosecutors, until columnist Regina Brett made it public in The Plain Dealer.
During Mason's recent re-election campaign, discovery - the process that grants defense attorneys access to all police reports and witness statements before trial - became an issue. Cuyahoga County's policy on discovery is one of the most restrictive in the state. At the time, Mason indicated that he was willing to take some steps toward a more open discovery system. Now safely re-elected, he's aggressively fighting an effort to grant open discovery here.
On November 12, when local judges agreed to adopt open discovery in their courtrooms, Mason had a meltdown. He doesn't want to give defense attorneys copies of police reports - he wants them to come to his offices and read the reports on his computers. It's a fight that is likely to end up in the Ohio Supreme Court. And it's a fight Mason was preparing for even as he claimed to want open discovery.
In an e-mail dated October 7, from Delaware County Prosecutor David Yost to one of Mason's AOL accounts, Yost asks, "Is our hold in the Legislature sufficient to block a modification? Do we have the political strength to block any changes?" Yost goes on to list the things that he believes are most important to maintain in the discovery process: Prosecutor's discretion as to what is available to defense attorneys is listed first, above the oft-cited concern for the safety of witnesses and victims. If Mason responded to this e-mail, those records were not released by his office.
Mason and his fellow prosecutors have long argued that if Ohio courts allow open discovery, witnesses and victims would be placed in danger and could be killed by the defendant. Most defense attorneys have said this is nothing more than a scare tactic.
"That's a load of b.s.," says Marburger. "Every trial is a game of surprise. And they don't want us to know what they have to surprise us with in court. There are remedies to protect witnesses with open discovery so I don't buy that argument. Open discovery is needed because everybody lies. Let's start with that. Lying is so common in court, it's laughable." While The Plain Dealer - Brett in particular - has taken Mason to task for this weak argument, the paper has also given him a pass on his political might and bowed to his bullish demands in recent weeks.
Plain Dealer reporter Joe Wagner has recently written multiple articles revealing the patronage that exists inside the offices of elected officials, including the Cuyahoga county auditor and recorder. Wagner also interviewed local political figures about Mason's employees - showing them photographs and asking about their personal and political connections - but that article was never published. Surely there's no shortage of patronage there; Scene discovered that 49 employees also serve as Democratic precinct committee members.
After reporter Bob Paynter wrote a two-part expose on the racial disparity of drug cases handled by Mason's office, The Plain Dealer gave Mason space in its forum pages to refute the paper's own reporting. "Bob Paynter got it wrong - very wrong," wrote Mason. Sources within The Plain Dealer have said that Mason also met with several top executives. Shortly thereafter, Paynter took a buyout offer, and sources say that he did so because his editors didn't stand up for his work. Editor Susan Goldberg did not respond to a request for comment.