CUYAHOGA COUNTY COURT OF COMMON PLEAS
STATE OF OHIO
·MOTION TO DISMISS INDICTMENT
DUE TO VIOLATION OF CRIMINAL RULE 5
·MOTION TO UNSEAL GRAND JURY TRANSCRIPT
·MOTION TO DISMISS INDICTMENT DUE TO PROSECUTORIAL MISCONDUCT IN GRAND JURY PROCEEDINGS
Defendant has been charged with multiple counts of raping XXXXXXXXXXXXXXXXXXX in Cuyahoga County and is facing the possibility of life in prison. The allegations are false, as admitted by XXXXXXXXXXXXXX (attached Transcript of XXXXXXXXXXX dated XXXXXXXX, 2021, marked as Exhibit A and incorporated herein), an admission made in the presence – possibly on a recorded line – of the initial investigating agency in this matter, the XXXXXXXXX Police Department, whose report, upon information and belief, was relied upon exclusively by the State in its presentation to the Grand Jury.
MOTION TO DISMISS INDICTMENT DUE TO VIOLATION OF CRIM. R. 5
Defendant was arrested upon Cleveland Police sua sponte warrant on XXXXXXXX, 2021, taken into custody by the Cleveland Police, booked and placed in Cuyahoga County jail, brought from the jail in handcuffs and arraigned in handcuffs in Cleveland Municipal Court on XXXXXXXX, 2021. At arraignment Defendant appeared with counsel and did not waive his right to a Preliminary Hearing. Ohio Criminal Rule 5(A)(4) states that a defendant has a right to a preliminary hearing if not making an initial appearance by indictment. Ohio Criminal Rule 5(B)(1) states that such hearing must be held within 10 days if defendant is in custody, within 15 days if not in custody. Defendant was remanded to custody after setting bail; no hearing date was set.
The State subsequently indicted Defendant on XXXXXX, 2021, 14 days after the initial appearance. 14 days is out of the 10-day timeframe rule. That Defendant was able to make bond at some point within the 14 days does not change the fact that Defendant was in custody when he requested his Preliminary Hearing. Defendant needed by rule to have a Preliminary Hearing by XXXXXX, 2021. Defendant did not have a Preliminary Hearing.
Further, the language of Ohio Criminal Rule 5(B)(1) cannot be read, as prosecutors love to do, to vitiate the plain meaning of Ohio Criminal Rule 5(A)(4). There is nothing in Rule 5 to suggest that one section supersedes the other as to preliminary hearings. 5(A)(4) confers upon a defendant the right to a preliminary hearing if the initial appearance is not by indictment, exactly as the Defendant appeared. 5(B)(1) states that the “Preliminary Hearing shall not be held if the defendant is indicted.” It doesn’t say “the State can void defendant’s right to a Preliminary Hearing if the State can hurry up and indict the defendant before the clock runs out.”
When one rule confers a right, another cannot simply take it away. Plain meaning statutory construction of these two sections of Rule 5 clearly indicates that a Preliminary Hearing will not be held if a defendant appears initially by indictment, not that a subsequent indictment extinguishes a right already conferred when a defendant appeared initially not by indictment. Preliminary Hearings and Grand Jury proceedings are uniquely different processes. If a defendant surrenders his freedom by appearing via only a police arrest warrant, then a defendant is granted a substantive right to a Preliminary Hearing as an initial civil rights safeguard. A county prosecutor does not get to elect to waive that right for a defendant by running to a grand jury before a hearing can be held.
This ploy is a blatant denial by the State of a defendant’s access to the wealth of information that a defendant can glean from a Preliminary Hearing and use at trial, a ploy which also permits the State to dodge the probability in marginal cases that a court will find no probable cause and dismiss the charges. This long-standing State power play is tolerated by the defense bar as falling within the mysterious ambit of prosecutorial discretion. However, it is not within the power of the executive branch of the government – prosecutors – to interpret what the legislature has written. Cancelling substantive rights because of procedural ploy is a ludicrous interpretation of language designed to protect, not shred, a defendant’s presumption of innocence. It is time that courts – this court – take away this power.
Why? Because there is a specific reason the language of Rule 5 is written the way it is: probable cause. If a defendant appears initially not by indictment but only upon arrest, there has been no finding by a fact finder of probable cause. The Criminal Rules then give a Preliminary Hearing right to the defendant for a judge to determine probable cause. However, if a defendant appears by indictment, then probable cause has already been determined by a grand jury. The rules do not intend to give the State the option of choosing which forum a defendant must subject themself to nor cancel out a right that a defendant has already elected. In this case Defendant specifically elected his right to a Preliminary Hearing with its confrontational safeguards and disclosure advantages. He did not waive that right because the prosecutor says so.
The resulting real-world illogic that the traditional but erroneous interpretation of Rule 5 begets happened in this case: Defendant was arrested, processed into jail by the Sheriff, including consenting to HIV and DNA tests, arraigned in Cleveland Municipal Court on one count of Sexual Imposition, granted a bond with 10% surety, never given a Preliminary Hearing date, and remanded to jail. Meanwhile defense counsel prepared diligently for the Preliminary Hearing, including anticipating who the State witnesses would be and developing lines of questioning, interviewing defense witnesses to establish the improbability of the allegations and learn the timeframe of events and where all the parties and family members actually were during the alleged rapes. Counsel had what he thought was only a few days for this preparation. However, the Hearing never materialized on any docket, and Defendant was indicted by the Grand Jury. Defendant then had to reappear in Common Pleas Court to plead to new charges, argue for another bond - which even though granted in the same amount had to be rewritten with the bonding agency at an additional cost of over $ to Defendant – be processed again by the Sheriff including being ordered to submit to a second round of HIV and DNA tests – which Defendant refused to do because he didn’t understand why, which caused the Defendant to be held for some 8 unnecessary hours in a jail cell and necessitated defense counsel going to the jail after hours to politely argue with the Sheriff Deputies on duty that an HIV and DNA test were already given and that Defendant wasn’t complying because he was correct – and then finally released.
It should be noted here that Defendant is XXXXXXX, does not work and has no means of support including any governmental assistance. If his family had not stepped forward to pay the unnecessarily redundant cost of the bond rewrite, necessitated only because the court jurisdiction changed from Municipal to Common Pleas, then he would still be in jail. Yet another presumed innocent and untried inmate clogging our jails simply because the prosecutor decided that denying a Preliminary Hearing was in the State’s best strategic interest. If the State’s best strategic interest is the governing test for untried incarceration God help us all.
Criminal Rule 5 is not intended to strip rights, cause redundancies or create bureaucratic gauntlets. Therefore, both because Defendant’s indictment was out of time per the traditional erroneous interpretation of Rule 5, and because the actual construction of Rule 5 does not support the State’s denial of Defendant’s right to a Preliminary Hearing, this indictment should be dismissed as invalid.
MOTION TO UNSEAL GRAND JURY TRANSCRIPT &
MOTION TO DISMISS INDICTMENT DUE TO PROSECUTORIAL MISCONDUCT IN GRAND JURY PROCEEDINGS
Defendant moves this court to unseal the transcript of the State’s Grand Jury proceedings against him which took place on or about XXXXX, 2021. Defendant states that the transcript is necessary to reveal misconduct by State agent Cuyahoga County Prosecutor Michael C. O’Malley (“O’Malley”) in his presentment of evidence to the Grand Jury of Defendant’s alleged crimes, namely: 1) the State failed to inform the grand jury of the existence of substantial evidence not only negating Defendant’s guilt but making it physically impossible for the allegations to have occurred, 2) the State failed to inform the grand jury that XXXXXXXX had recanted, 3) the State made extensive improper use of hearsay testimony while avoiding available witnesses with direct exonerating evidence, 4) the State knew or should have known with minimal diligence that XXXXXXXXX has relocated out of the United States and that Defendant will not have an opportunity to confront her thus rendering these charges nolle prosequi, 5) the State ignored alarming inconsistencies and fabrications in XXXXXXXXXX statement, including a claim that Defendant texted her as prelude to a rape when in fact she did not have a cell phone at the time, 6) the State failed miserably in its investigation of this matter including ignoring the fact that no police or XXXXXX department in three different jurisdictions, including Cleveland/Cuyahoga County, attempted to corroborate XXXXXXX allegation, 7) the Cleveland police did not review the Statement nor interview XXXXXXX or XXXXXXX as part of its investigation, instead relying upon XXXXXXXXXX written report, and 8) O’Malley’s office is not in possession of the XXXXXXX Statement even as of the date of the filing of this Motion and did not present XXXXXXXX to the Grand Jury.
From these known transgressions further impropriety is easily derived. What “evidence” did the State present to the Grand Jury? What inquiries did the Grand Jury make, if any, as to the validity of the allegations and evidence? What did O’Malley actually say to convince the Grand Jury that crimes occurred?
The Ohio Supreme Court has held that a trial court must perform the following analysis upon a Motion to Unseal a grand jury transcript:
Crim.R. 6(E) . . . require[s] the trial court, upon proper motion, to consider the basis of the particularized need advanced by the defendant. This may be accomplished by an in camera inspection of the grand jury minutes by the trial court assisted by counsel. Next, we conclude that there is soundness in the procedure to be followed by the trial court as set forth in Dennis, supra, to the effect that once the particularized need for the grand jury material is shown, the necessity of preserving grand jury secrecy is lessened, largely because the witness, in testifying at trial, has given up any anonymity he might have had and has made public the events which are the subject of the grand jury testimony being sought. Under such circumstances, when there is a balancing of the often minimal need to preserve secrecy against the need for the defendant to review certain portions of the grand jury testimony, we conclude that all relevant portions of the transcript should be produced, with the trial court deleting extraneous matters, and issuing protective orders where necessary. State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982, 20 O.O.3d 157 (Ohio 1981).
Defendant has a particularized need, described in more detail below, to expose the gross malfeasance by O’Malley which underlies his indictment, malfeasance but for which Defendant would not be facing life in prison. Further, given that O’Malley presented no witnesses to the Grand Jury other than a police officer there is no need to preserve the secrecy of the grand jury as to the anonymity of the victim or any witness.
The Defendant’s burden to demonstrate a particularized need for disclosure which outweighs the need for secrecy is a threshold requirement. In re January 27, 2017 Order Releasing Grand Jury Materials, 2018-Ohio-988, 108 N.E.3d 1170, ¶ 7 (2d Dist.). Once the burden of particularized need has been established, the Ohio Supreme Court has recognized five reasons for overriding the burden and preserving the secrecy of grand jury proceedings: (1) to prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; [and] (5) to protect [an] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt. In re Petition for Disclosure of Evidence Presented to Franklin Cty. Grand Juries in 1970, 63 Ohio St.2d 212, 219, 407 N.E.2d 513 (1980), quoting U.S. v. Rose, 215 F.2d 617, 628-629 (2d Cir.1954).
The secrecy of grand jury proceedings is not, however, absolute. In re Grand Jury Investigation, 61 Ohio Misc.2d 583, 588, 580 N.E.2d 868 (C.P.1991). The Ohio Supreme Court has held that inspection of grand jury transcripts may be permitted where there exists a particularized need for disclosure that outweighs the need for secrecy. State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982 (1981), paragraph two of the syllabus; In re Petition for Disclosure of Evidence Presented to Franklin Cty. Grand Juries in 1970 at 218, 407 N.E.2d 513.
The particularized need standard is a highly flexible one that recognizes that the requirements of secrecy are greater in some situations than in others. United States v. Sells Eng., Inc., 463 U.S. 418, 445, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983). To that end, once the particularized need for the grand jury material is shown, the necessity of preserving grand jury secrecy is lessened. Greer at 150, 420 N.E.2d 982. Additionally, as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification. Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 223, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979).
In considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries. In re Petition for Disclosure of Evidence Presented to Franklin Cty. Grand Juries in 1970 at 217, 407 N.E.2d 513, quoting Douglas Oil at 222-223, 99 S.Ct. 1667. Persons called upon to testify will consider the likelihood that their testimony may one day be disclosed to outside parties. Id. Accordingly, the interests in grand jury secrecy, although reduced, are not eliminated merely because the grand jury has ended its activities. Id.
Whether there exists a particularized need for disclosure of grand jury transcripts is a question of fact to be determined by the trial judge. State v. Perkins, 191 Ohio App.3d 263, 2010-Ohio-5161, 945 N.E.2d 1083, ¶ 45 (2d Dist.), citing Greerat paragraphs one and two of the syllabus. Particularized need may exist where considering all of the surrounding circumstances, it is probable that the failure to disclose the testimony will deprive the petitioner of a fair adjudication of a pending action. Wiggins v. Kumpf, 2d Dist. Montgomery No. 26263, 2015-Ohio-201, 2015 WL 302839, ¶ 8. A general request for grand jury transcripts does not demonstrate a particularized need. State v. Richardson, 2014-Ohio-3541, 17 N.E.3d 644, ¶ 17 (3d Dist.). Nor does mere speculation about the content of grand jury proceedings. Tourlakis v. Beverage Distributors, Inc., 8th Dist. Cuyahoga No. 81222, 2002-Ohio-7252, 2002 WL 31875970, ¶ 34, citing State v. Mack, 73 Ohio St.3d 502, 508, 653 N.E.2d 329 (1995). See also Wiggins at ¶ 10, quoting State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 44 (“A ‘speculative claim that the grand jury testimony might have contained material evidence or might have aided * * * cross-examination does not establish a particularized need.’”).
Courts have also found no particularized need for grand-jury testimony where defendants claimed that inspection of the transcripts was needed to show that indictments were issued based on inadequate or incompetent evidence. See State v. Davis, 38 Ohio St.3d 361, 365, 528 N.E.2d 925 (1988); State v. Brown, 38 Ohio St.3d 305, 308, 528 N.E.2d 523 (1988) (finding no particularized need where defendant sought to inspect grand-jury testimony to show that indictment was not properly issued). But courts have recognized the existence of particularized need where the transcripts are sought to impeach a witness, refresh his recollection, or test his credibility. Stakich v. Russo, 8th Dist. Cuyahoga No. CA 99488, 2014-Ohio-2526, 2014 WL 2611217, ¶ 31.
Absent a showing of particularized need, the trial court is not obligated to examine the grand-jury transcript. Richardson at ¶ 18, citing State v. Horger, 170 Ohio App.3d 383, 2007-Ohio-665, 867 N.E.2d 466, ¶ 11 (5th Dist.). See also State v. Brown, 6th Dist. Lucas No. L-82-297, 1983 WL 6945, *5 (Sept. 16, 1983) (“[T]he trial court did not abuse its discretion in not conducting an in camera inspection of the grand jury testimony, since the defense failed to demonstrate the requisite particularized need.”). Moreover, there is no requirement that defense counsel examine the grand jury transcript until a particularized need has been established. State v. Herrera, 6th Dist. Ottawa No. OT-05-039, 2006-Ohio-3053, 2006 WL 1661794, ¶ 30.
Moreover, Ohio courts have held that a particularized need cannot be established for the pretrial release of grand jury testimony of a witness based upon anticipated inconsistencies with trial testimony that has not yet taken place. State v. Godfrey, 181 Ohio App.3d 75, 2009-Ohio-547, 907 N.E.2d 1230, ¶ 16 (3d Dist.).
In summary, particularized need does not exist when a movant is simply attempting to assert inadequate evidence to indict or to advance any number of defense trial strategies, such as testing inconsistent statements of a Grand Jury witness who becomes a trial witness. A particularized need only exists when it is probable that the failure to disclose the Grand Jury proceedings will deprive the petitioner of a fair adjudication of a pending action.
In this case Defendant is not claiming that XXXXXXX of XXXXXXXX is insufficient evidence, or that a witness who testified at the Grand Jury might testify differently at trial. Defendant is stating that 1) the XXXXXXXXX is a lie, a lie which is being knowingly perpetuated by the State of Ohio, 2) that there was absolutely no corroborating investigation and/or evidence presented to the Grand Jury by the State, 3) that XXXXXXXXX is unavailable now and in the foreseeable future for impeachment, or even a Court ordered ORC 2945.371 deposition, 4) that he stands squarely in the class of people the Ohio Supreme Court carved out in its 5th reason to, ironically, preserve secrecy – “to protect [an] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt”, see infra In re Petition for Disclosure – and, 5) perhaps most compelling and vital to a decision on this Motion, Defendant’s need is not inchoate: he has essentially no defense to these charges other than negating what the State claims. There is no physical evidence against the Defendant to test; no contemporaneous, simultaneous or remotely timely disclosure by XXXXXXX to anyone of rape for credibility challenge; no complaining witness to impeach; an unequivocal but ignored recantation by XXXXXXX which the XXXXXXX Police detective heard; and the existence of countless influential, extraneous, and nefarious motives behind XXXXXXXX inconsistent claims (see XXXXXXXX Transcript). Under these circumstances there is not even a scintilla of a chance that Defendant will be afforded a fair adjudication of these charges unless he is in possession of everything the State has done to take away his freedom, including what O’Malley and the Cleveland Police said, and didn’t say, to convince a Grand Jury that XXXXXXXXXXXX allegations have even the slightest degree of credibility, and probability.
All of the above facts, assumptions, analysis, and argument demonstrate that Defendant has a particular need to know what the Grand Jury presumably knew, which meets the legal standard necessary for this court to permit an in camera review with assistance of counsel (see infra) of the Grand Jury transcript.
In Desmond v. State, 2020 Ohio 181, 141 N.E.3d 1052 (7th District Ct. of App.) the trial court conducted a hearing on Desmond’s petition to unseal grand-jury transcripts. At the beginning of that hearing, the court stated that “at least in form particularized need exists in this case.” It reiterated this later on in the hearing, stating that it had made a finding of particularized need “subject to a verification in the in-camera inspection.” But after reviewing the transcripts—without making those transcripts available to counsel—it announced that it had “determined that there is insufficient evidence of a particularized need in any of [the] transcripts to warrant first participation in the evaluation by counsel on either side * * * [a]nd second, to warrant production of * * * those transcripts to either side.” Its judgment entry concludes that “the particularized need asserted by petitioner for access to the enumerated grand jury transcripts is not sufficient to overcome the principles of secrecy accorded grand jury proceedings under Ohio law.”
The 7th District Appellate Court continued:
The procedure used by the trial court was this: after the parties briefed and argued their respective positions, the judge reviewed the transcripts in chambers in the presence of counsel and explained why he did not believe Desmond was entitled to each of the transcripts. Desmond argues that the trial court erred by not allowing counsel access to the transcripts so that they could meaningfully participate in the in-camera review and by failing to properly weigh Desmond's need for the transcripts against the interests in maintaining the secrecy of the grand jury proceedings at issue. He insists that the justification for maintaining the secrecy of the proceedings is severely diminished here because potential witnesses were disclosed by the state and the cases have long been resolved.
Desmond is correct that counsel may be permitted to assist the trial court while it conducts an in camera review, but there is no such requirement unless and until a particularized need has been established. Herrera at ¶ 30; see also Greer at paragraph four of the syllabus ("[W]hen defense counsel asserts and establishes to the satisfaction of the trial court a particularized need for [the] grand jury testimony, the trial court, along with defense counsel and counsel for the state, shall examine the grand jury transcript in camera * * *." (Emphasis added.)
Desmond is also correct that the necessity of preserving grand-jury secrecy is lessened as the justifications for secrecy cease to apply, but again, this is true only after a particularized need for the transcripts has been demonstrated. Greer at 150, 420 N.E.2d 982 ("[O]nce the particularized need for the grand jury material is shown, the necessity of preserving grand jury secrecy is lessened."). Where a petitioner has not demonstrated a particularized need for the transcripts, a trial court does not err by failing to expressly consider the five factors for preserving secrecy. Wurth, 125 Ohio App.3d at 500, 708 N.E.2d 1057. "The petitioner's burden to demonstrate a particularized need for disclosure [that] outweighs the need for secrecy is * * * a threshold requirement." (Internal quotations and citations omitted.) In re January 27, 2017 Order Releasing Grand Jury Materials, 2018-Ohio-988, 108 N.E.3d 1170, ¶ 7 (2d Dist.).
In Desmond advances essentially three reasons in support of his position that particularized need exists. He claims the transcripts will allow him (1) to substantiate his claims of misconduct, (2) to impeach or discredit Gains, and (3) to expose to the public misconduct occurring within the Mahoning County prosecutor's office. We are not persuaded that any of these reasons establish a particularized need.
First, Desmond argues that the grand-jury transcripts would substantiate the misconduct that he reported, thereby supporting his contention that Gains’ motive for terminating his employment was retaliatory. Specifically, he claims that the transcripts will "bolster" his retaliation claims because they will "help" prove a motive to retaliate. He explains that "if the transcripts showed a pattern of indicting individuals based on insufficient evidence and/or for improper motives, that would strengthen Desmond's claim that the reason for his termination was to cover up such misconduct * * *," and "if the transcripts substantiate his reported concerns," this will undermine the truth of Gains’ affidavit in which he averred that he investigated Desmond's concerns and found them to be baseless. (Emphasis added.) Desmond insists that his ability to prove motive and to impeach Gains’ credibility will be "hampered" if he is not allowed access to the grand jury transcripts.
Desmond's contentions that the transcripts would "help," "strengthen," and "bolster" his claims "if" they show what he thinks they will show, and that the absence of the transcripts will "hamper" his ability to prove motive and attack Gains’ credibility fall short of showing that it is probable that the failure to disclose the testimony will deprive him of a fair adjudication of his claims. At most, Desmond has shown that the transcripts would assist in supporting his claims.
Moreover, Desmond already possesses public case filings that would serve the same purpose as the grand-jury transcripts. For instance, Desmond attached as an exhibit to his petition the state's motions to dismiss the indictments in Hill and Lucky. Those motions concede the deficiencies in the state's cases, openly acknowledging that charges had been brought to apply pressure on the defendants to cooperate with the state. Desmond also attached a transcript from a hearing on the defendant's motion to dismiss in Woods, in which Cantalamessa asserts her position in support of the indictment—the same position that Desmond argues constituted misconduct. It is difficult to understand why Desmond needs the grand jury transcripts given that he is already in possession of documents that are part of the public record from which he can argue the same point.
Finally, that the public may be interested in the content of the grand-jury transcripts alone is not sufficient justification for releasing them. Particularized need that outweighs the need for secrecy must still be demonstrated. In re Rice, 2018-Ohio-1087, 109 N.E.3d 608, ¶ 20 (8th Dist.). Again, we find no particularized need here.
Having concluded that no particular need exists here, it was unnecessary for the trial court to engage in the in-camera review of the grand-jury transcripts. Nevertheless, we find no abuse of discretion in its ultimate decision denying Desmond's petition to unseal the transcripts. We find Desmond's first assignment of error not well-taken.
Desmond is quoted at length to demonstrate for the court not only the established analytical route for this Motion, but to further distinguish Defendant’s claim from Desmond’s claim to establishing particularized need. The 7th Appellate Court in Desmond stated that “bolstering a claim” is insufficient to meet the particularized need burden; that the availability of the material Desmond sought was “otherwise publicly available”; and that the “public’s interest in the grand jury materials” sought was insufficient. Defendant is not invoking any of Desmond’s insufficient claims in his assertion of particularized need, nor any of the other claims deemed by appellate courts as insufficient.
What Defendant is claiming is that his life is in the balance and prays that this court intervene to preserve his presumption of innocence, a presumption that O’Malley gutted in the Grand Jury.
/s JAMES SIDNEY JONES (64099)
JAMES SIDNEY JONES, LPA
5455 N. MARGINAL ROAD, SUITE 215
CLEVELAND, OHIO 44114