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

Plaintiff ... Hon. Mary K. Huffman for

Hon. Jeffrey E. Froelich
vs. ...

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.


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 Law Office of the particular situation demands." Morrissey v. Brewer (1972),408 U.S. 471.
SLYMAN The test for detennining whether state action violates procedural due process requires a court
Altomry at Law to consider three (3) distinct factors: (1) the private interest that will be affected by the official
575 S. Dixie Drive action; (2) the risk of an erroneous deprivation of such interest through the existing procedures
Vandalia, OH 45377 used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the
(937) 454·5544 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.
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.
The Law Office of
JEFFREYD. Support for this power of the Court can also be found in the Ohio Rules of Criminal
SLYMAN Procedure. Rule 32(b) provides in pertinent part:
Attorney at Law
A judgment of conviction shall set forth the plea, the verdict
575 S. Dixie Drive
Vandalia, OH 45377
or findings, and the sentence. If the Defendant is found not
(937) 454-5544 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

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,
The Law Office of yet, if it is applied and administered by public authority with an
JEFFREYD. ***unequal hand, so as practically to make unjust and illegal
SLYMAN discriminations between persons in similar circumstances, material to
Attorney at Law their rights, the denial of equal justice is still within the prohibition of
the constitution.
575 S. Dixie Drive
Vandalia, OH 45377
(937) 454-5544 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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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
The Law Office of (1999),85 Ohio St.3d 524,532,709 N.E. 2d 1148, 1155-1156, citing State v. WoleI)' (1976), 46
JEFFREYD. Ohio St. 2d 316, 325-326; 75 0.0. 2d 366, 348 N.E. 2d 351, 358, and quoting Oyler v. Boles
SLYMAN (1962),368 U.S. 448, 456, 82 S. Ct. 501, 506,7 L.Ed. 2d 446 (emphasis supplied). See also
Attomry at Law Trzebuckowski at 534, 709 N.E. 2d at 1155. fn. 4; State v. Freeman (1985), 20 Ohio St. 3d 55.
575 S. Dixie Drive
Vandalia, OH 45377
Additionally, the State representatives must learn to recognize that if they deliberately
(937) 454-5544 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....._ _ _ _ _ _ __ __ _ _ __ __ _
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 9 th 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.

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. 2 nd 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
The Law Office of suppression by the government, 'if there is a reasonable probability that, had the evidence been
JEFFREYD. disclosed to the defense, the result of the proceeding would have been different.. ' at 1565. In
SLYMAN Bagley, the Court actually disavowed any differences between eXCUlpatory evidence and
Attorney at Law impeachment evidence.
575 S. Dixie Drive
Vandalia. OH 45377 In defining "reasonable probability" the Kyles Court explained that the question is not
(937) 454-5544 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

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
The Law Office of intercourse with her, sent text messages to her ofa highly provocative nature (see Exhibit "F", a
JEFFREYD. sealed document, a copy of which is attached hereto and made a part hereof), sent nude
SLYMAN photographs of himself to the alleged victim (see Exhibits "G" and "H", a sealed document, a
Attonfty Ilt Law 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,
575 S. Dixie Drive
Vandalia, OH 45377 only to have his attempts thwarted by the in camera interview of Judge Froelich.
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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,

Attorney for Defendant


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

The Law Office of

Arromry at Law

575 S. Dixie Drive

Vandalia, OH 45377
(937) 454·5544

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