jud mcmillin - motion to dismiss due to misconduct

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The Law Office of JEFFREYD.

SLYMAN Altomry at Law

575 S. Dixie Drive Vandalia, OH 45377

(937) 454·5544 [email protected]

, . . . IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO ... CASE NO. 2005 CR 974

Plaintiff ... Hon. Mary K. Huffman for Hon. Jeffrey E. Froelich

vs. ...

JOHN CHARLES GONZALEZ ... MOTION TO DISMISS

Defendant ...

Now comes the Defendant, John Charles Gonzalez, and moves the Court pursuant to Rule 32 of the Ohio Rules of Criminal Procedure, Rule 16(E)(3) of the Ohio Rules of Criminal Procedure, the Fourteenth Amendment of the United States Constitution, Article I, Section 16 of the Ohio Constitution, Section 2, Article I of the Ohio Constitution and the Doctrine of Outrageous Government Misconduct (United States v. Russell (1973),411 U.S. 423 at 431-32) for a dismissal of the within charge and for reasons set forth more fully herein.

MEMORANDUM

The due process clause prohibits deprivations of life, liberty or property without "fundamental fairness" through governmental conduct that offends the community's sense of justice, decency and fair play. Roberts v. State of Maine (lst Cir. 1995), 48 F. 3d 1287. "The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi (1973), 410 U.S. 284,294. Due process, unlike some legal rules, "js not a technical conception with a fixed content unrelated to time, place and circumstances." Cafeteria Workers v. McElroy (1961),367 U.S. 886, 894 (citations omitted). Rather, "due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer (1972),408 U.S. 471.

The test for detennining whether state action violates procedural due process requires a court to consider three (3) distinct factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the existing procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge (1976),424 U.S. 391.


SLYMAN Attorney at Law


(937) 454-5544 [email protected]

When this aforementioned conduct rises to a level that is so "outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochen v. California (1952)" a court does not abuse its discretionary powers by dismissing an indictment, United States v. Russell (1973),411 U.S. 423,431-32; particularly since the government conduct violates that "fundamental fairness shocking to the universal sense of justice, mandated by the Due Process Clause of the Fifth Amendment." Id.

In the past, while acknowledging that the issue of the dismissal of an indictment is not an easy one, Federal Courts have not retreated from applying harsh sanctions. Federal Courts have a general supervisory power with respect to the administration of justice in federal judicial proceedings. See United States v. Hasting (1983),461 U.S. 499; United States v. Payner (1980), 447 U.S. 727, reh'g. denied, 391 U.S. 784; see generally Beale, Reconsidering Supervisory Powers in Criminal Cases; Constitutional and Statutory Limits on the Authority of the Federal Courts (1984), 84 Colum.L.Rev. 1433.

Courts have dismissed criminal prosecutions because of serious government abuse in the investigation leading to the indictment. See United States v. Kilpatrick (1984 D.Co!.), 594 F. Supp. 1324; United States v. Lawson (1980 D. Md.), 502 F. Supp. 158; United States v. Dahlstrum (1980 C.D. Cal.), 493 F. Supp. 966, appeal dismissed (1981 9th Cir.) cert. denied (1982) 455 U.S. 928. Moreover, courts have dismissed indictments because serious government misconduct following the indictment. See United States v. Pollock (1976 D. Mass.), 417 F. Supp. 1332; United States v. Demarco (1975 C.D. Cal.), 407 F. Supp. 107; United States v. Banks (1974 D.S.D.), 383 F. Supp. 389; United States v. Means (1975 gthCir.), 513 F. 2d 1329; United States v. Martino (1987 3d Cir.), 825 F. 2d 754.

This supervisory power may be invoked in a myriad of situations based on the peculiar circumstances presented. United States v. Adamo (1984 6th Cir.), 742 F. 2d 927,cert. denied sub. nom Freeman v. United States ( ), U.S. _, ,105 S. Ct. 971. Repeated instances of deliberate and flagrant misconduct justify dismissal of the indictment. United States v. Hogan (1983 2nd

Cir.), 712 F. 2d 757. Courts must be sensitive to the need to invoke fairness and assure justice, so that even though a Defendant's rights in an individual case may be vindicated, the integrity of the judicial system is preserved, and to prevent the Court "from becoming accomplices to misconduct" Pay nor 477 U.S. at 744. See also United States v. Valencia (1976 61h Cir.), 541 F. 2d 618; United States v. Birdman (1979 3'd CiT.), 602 F. 2d 547, cert. denied (1986), 444 U.S. 1032.

Support for this power of the Court can also be found in the Ohio Rules of Criminal Procedure. Rule 32(b) provides in pertinent part:

A judgment of conviction shall set forth the plea, the verdict or findings, and the sentence. If the Defendant is found not guilty or for any other reason is entitled to be discharged, the Court shall render judgment accordingly. (emphasis added).

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Rule 16(E)(3) provides in relevant part:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule ... the Court ... may make such other order as it deems just under the circumstances.

Rule 3.01 of the Montgomery County Court of Common Pleas Local Rules quite clearly places an affirmative duty upon the State. It provides in pertinent part:

The purpose of these rules of criminal practice is to provide expeditious administration of criminal justice possible within the requirements of the Ohio Rules of Criminal Procedure; and the provisions of the Ohio Revised Code, the Ohio Constitution and the U.S. Constitution. These rules shall be construed and applied to eliminate delay, unnecessary expense, and all other impediments to ajust determination of criminal cases. Further, the disclosure and discovery requirements placed upon both the prosecution and the defense are to fully implement Rule 16 of the Ohio Rules of Criminal Procedure and the requirements of Brady v. Maryland (1963), 373 U.S. 83.

Thus, in extreme cases, the aforementioned rules authorize a trial court to dismiss an indictment with prejudice. See ~ United States v. Peveto (1989 10th Cir.), 88 IF. 2d 844, cert. denied, 493 U.S. 943; United States v. Welborn (1988 5th Cir.), 849 F. 2d 980; Bank of Nova Scotia v. United States (1988), 487 U.S. 250 (construing Federal R. Crim. Pro 16).

Discriminatory outrageous governmental misconduct often attends in the form of selectively in the enforcement of criminal provisions.

In Yick Wo v. Hopkins (1886), 118 U.S. 356, 374, 6 S. Ct. 1064, 1073, ,30 L.Ed. 220, the United States Supreme Court held:

Though the law itselfbe fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an ***unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.

As noted by one writer, although "[t]raditional suspect, class discrimination cases capture most of the headlines," individuals who are not within any suspect class are often victimized by

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SLYMAN Attomry at Law


(937) 454-5544 slymanatlaw@:lOl.com

discriminatory governmental misconduct. McGuinness, Equal Protection and Non-Suspect Class Victims of Governmental Misconduct: Theory and Proof of Disparate Treatment and Arbitrariness Claims (1966),18 Campbell 1. Rev. 333,335-336. This is particUlarly true, the writer observers at the local level:

Americans from all walks of life need constitutional protection from increasingly arbitrary and oppressive government power, more often at the local level. It appears that the greatest threat to civil liberties arises not from more remote sources of government power in Washington· ... Rather, individuals are pervasively regulated and often harassed by smaller local governments which appear more likely to act arbitrarily or discriminatorily because the government authority tends to be concentrated among fewer power brokers with few if any checks on their authority. Sheriffs, police chiefs, town managers, building inspectors and other local officials are more subject to direct political pressures and therefore appear more prone to eviscerate the Constitution than typically more rational forces within the state and federal governments.

A broad range of cases including government contracts, land use disputes, building permit squabbles, business regulation, education, licensing and permit schemes, law enforcement matters, occupational licensing and regulation, public employment and other disputes necessitate application of equal protection principles. These areas of traditional local government regulation are where meaningful equal protection is sorely needed.

To support the defense of discriminatory selective prosecution, the Ohio Supreme Court, independently interpreting Section 2, Article I of the Ohio Constitution pursuant to Michigan v. Long (1983), 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201, has stated its own two-part test. First, the defendant must show that "while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution." State v. Flynt (1980), ,63 Ohio St. 2d 132, 134, 170.0. 3d 81,407 N.E. 2d 15, 17, quoting United States v. Berrios (1974 C.A.2), 501 F.2d 1207,1211. Second, the defendant must show that the "selection is 'deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. '" Cleveland v. Trzebuckowski (1999),85 Ohio St.3d 524,532,709 N.E. 2d 1148, 1155-1156, citing State v. WoleI)' (1976), 46 Ohio St. 2d 316, 325-326; 75 0.0. 2d 366, 348 N.E. 2d 351, 358, and quoting Oyler v. Boles (1962),368 U.S. 448, 456, 82 S. Ct. 501, 506,7 L.Ed. 2d 446 (emphasis supplied). See also Trzebuckowski at 534, 709 N.E. 2d at 1155. fn. 4; State v. Freeman (1985), 20 Ohio St. 3d 55.

Additionally, the State representatives must learn to recognize that if they deliberately withhold vital exculpatory or discoverable material they risk dismissal of charges. Our "fastidious regard for the honor of the administration of justice" requires nothing less. Communist Party of

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______ J.J..... __________ ______ _



575 S. Dixie Drive Vandalia. OH 45377


the United States v. Subversive Activities Control Board (1956), 351 U.S. 115; Mesarosh v. United States (1956), 352 U.S. 1; United States v. Basurto (1974 9th Cir.), 497 F. 2d 781; United States v. Demarco (1975 D.C. Cal.), 401 F. Supp. 505.

Moreover, as Chief Judge Nichol stated in United States v. Banks (1974 D.S.D.), 383 F. Supp.389,392:

It is this court's feeling that when the prosecutor acts in bad faith in complying with the orders and inquires of the court the administration of justice is tainted and the court should, or at least has a right to, fonnulate a remedy through use of its supervisory powers ...

The remedy should be directly related to the seriousness of the misconduct, i.e., serious misconduct warrants a more drastic remedy that does minor misconduct. .. I feel that the interests of justice are best served by dismissal.

The sanction of dismissal can be no less where the well-settled affirmative duty of the State to disclose evidence favorable to a Defendant, has been violated. Kyles v. Whitley (J995), 514 U.S. 419, 131 1. Ed. 2nd 490. McMullen v. Maxwell (1965), 3 Ohio St. 2d 160.

The Kyles Court ruled that:

"Brady held 'that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' 373. U.S., at 87 ... "

Under the mandates of Kyle and Brady the duty upon the prosecutor is an affirmative duty to disclose all evidence that is favorable to a defendant. This obligation is further supported in United States v. Augurs (1976), 427 U.S. 97.

In United States v. Bagley (1985), 473 U.S. 667, cited in Kyles, supra, the Court held that regardless of the request, favorable evidence is material, and constitutional error results from its suppression by the government, 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different .. ' at 1565. In Bagley, the Court actually disavowed any differences between eXCUlpatory evidence and impeachment evidence.

In defining "reasonable probability" the Kyles Court explained that the question is not whether the defendant would more likely than not have received a fair trial, understood as a trial resulting in a verdict worthy of confidence. Rather "[a] 'reasonable probability' of a different

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SLYMAN Attonfty Ilt Law



result at trial is accordingly shown merely "when the Government's evidentiary suppression undermines confidence in the outcome of the trial. " (citations omitted) at 1566.

Thus Bagley materiality is clearly not a sufficiency of the evidence test. Rather,

[ a] defendant need not demonstrate that after discounting inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undetermined confidence in the verdict. Id.

The significance of this ruling is that "[0 ]nce that Court applying Brady has found constitutional error there is no need for further hannless-error review." Id.

In this regard the prosecution is responsible for evidence withheld by the police. "[N]o one doubts that police investigators sometimes fail to inform a prosecutor of all they know. But neither is there any doubt that 'procedures and regulations can be established to carry [the prosecutor's] burden and to insure communication of all relevant information on each case to every lawyer who deals with it. .. " Id. at 1568. Finally, in considering whether the withheld evidence is material, the evidence is to be considered collectively, not item by item. Id. at 1567.

In the instant case, despite repeated requests that the charges be dismissed; despite repeated representations by the alleged victim that two of the indicted offenses did not occur as alleged in the indictment; despite the fact that former assistant prosecutor Judson McMillin was asked to withdraw from the case, which he ignored prompting him to be subpoenaed as a witness, Judson McMillin consummated a sexual relationship with the alleged victim. Moreover, he unduly, inappropriately and unprofessionally attempted to influence a critical witness. See Exhibit "A", an affidavit of Crystal Stapleton, a copy of which is attached hereto and made a part hereof.

Judson McMillin, during the pendency of the criminal charges against the Defendant, and during the period of his assignment to this case as prosecutor, slept with the alleged victim, had intercourse with her, sent text messages to her ofa highly provocative nature (see Exhibit "F", a sealed document, a copy of which is attached hereto and made a part hereof), sent nude photographs of himself to the alleged victim (see Exhibits "G" and "H", a sealed document, a copy of which is attached hereto and made a part hereof) (all of which are referenced in the Motion to File Certain Documents Under Seal), and sought to revoke the bond of the Defendant, only to have his attempts thwarted by the in camera interview of Judge Froelich.

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SLYMAN Arromry at Law


(937) 454·5544 [email protected]

It is respectfully submitted that any other prosecuting attorney, not otherwise romantically involved with the alleged victim, nor attempting to influence her testimony with inappropriate representations or intimations of post-conviction "happily-ever-after" lives, see Exhibit "A", would have either dismissed the within felony charges or accepted the Defendant's plea offer.

Naturally, none of the activity of Judson McMillin was disclosed by the State pursuant to Criminal Rule 16, including, but not limited to, Crystal Stapleton's statements which were inconsistent with the facts detailed in the State's Bill of Particulars or the amended indictment.

The Defendant respectfully requests an oral hearing outside the presence of the jury on this motion pursuant to Jackson v. Denno (1964),378 U.S. 368.

Respectfully submitted,

Jeffr~ Attorney for Defendant

CERTIFICATE OF SERVICE

I hereby certify that a copy ofthe foregoing Renewed Motion to Compel was served on John M. Scott, Jr., Prosecutor'~Q:Uice, 301 West Third St., Box 972, Dayton, Ohio, 45422, by ordinary U.S. mail service this ~Iday of November, 2005.

JEFF· . SL AN (#0010098) Attorney 'or Defendant

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