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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

PROSECUTORS (104)

Also see Plea Bargaining; Arguments of Counsel, Improper argument by prosecutors; Equal Protection; Appellate Procedure, Appeals by the prosecution; Discovery, Evidence favorable to the defendant.

 

Powers and duties

Prosecutorial misconduct

 

Chapter 309, Ohio Revised Code -- Prosecuting Attorney.

R.C. 2941.63 -- Counsel to assist prosecutor (special prosecutors).

Powers and duties

State ex rel Cordray v. Rawlins, 123 Ohio St. 3d 229, 2009-Ohio-4986 – The Attorney General has standing to bring a prohibition action compelling a common pleas court judge to vacate entries granting relief to a defendant on a motion for relief from judgment pursuant to Civil Rule 60(B). Trial court refused to instruct on voluntary and involuntary manslaughter. Court of Appeals affirmed. But without opposition from the county prosecutor the trial court subsequently granted 60(B) relief on the same claim, entered conviction on voluntary manslaughter, imposed a ten year sentence, and ordered release from prison. Writ granted. Law of the case doctrine applies. A trial court may not take action affecting the decision of a reviewing court.

State v. Cargile, 121 Ohio St. 3d 1208, 2009-Ohio-477 – Supreme Court Rule of Practice XIV(2)(A)(3) requires that in felony cases the prosecutor serve a copy of the notice of appeal or certified conflict order on the Ohio Public Defender. State P.D.‘s motion to dismiss is denied, but county prosecutor must now make required service and the Public Defender may file an amicus brief. Also see State v. Lester, 121 Ohio St. 3d 1209, 2009-Ohio-478; State v. Rohrbaugh, 121 Ohio St. 3d 1210, 2009-Ohio-479.

State v. Owens, 123 Ohio State 3d 1204, 2009-Ohio-4086 – On motion of the Ohio Public Defender the state‘s notice of appeal is stricken for failure to serve a copy of the notice of appeal on the Ohio Public Defender as required by Supreme Court Practice Rule XIV(2)(A)(3). Below the defendant was represented by counsel and successfully had his sentence vacated because of delay in bringing him to court for sentencing. State v. Owens, 181 Ohio App. 3d 725, 2009-Ohio-1508.

State v. Michel, 181 Ohio App. 3d 124, 2009-Ohio-450 -- Appellate review of selective prosecution claims is de novo, conducted as review of suppression rulings where the fact finding by the trial court is accepted if sufficiently supported by the evidence. To establish selective prosecution the defendant must (1) demonstrate he has been singled out for prosecution, and (2) this was or an invidious or discriminatory purpose. Defendant here failed to meet the first prong. Others had been prosecuted, but the extent of prosecution was limited by resources.

State v. Kuczak (2000), 139 Ohio App. 3d 468 -- In a prosecution for unsafe operation of an aircraft, R.C. 4561.15 makes the state Department of Transportation the exclusive representative of the state. Local prosecutor was without authority to pursue charge.

State v. Young, 154 Ohio App. 3d 609, 2003-Ohio-4501 -- A prosecutor may request a hearing to determine whether there have been community control violations

State v. Mucci, 150 Ohio App. 3d 493, 2002-Ohio-6896 -- A post-indictment nonprosecution agreement requires court approval upon a showing of good cause. The recommendation of the prosecutor alone is not good cause per se. No abuse of discretion found in trial court's refusal to dismiss a sixteen count indictment with prejudice in exchange for the defendant's cooperation.

State v. Schulte, 154 Ohio App. 3d 367, 2003-Ohio-3826 -- Suburb sought to intervene after trial court ordered refund of impound fees following DUI acquittal. Motion properly sustained. City may contract out prosecution of local offenses. Court notes briefs on both sides were prepared by assistant county prosecutors.

State v. Christian, Jefferson App. No. 04 JE 20, 2005-Ohio-905 -- Jury costs may not be assessed against the prosecutor.

In re Disqualification of Cirigliano, 105 Ohio St. 3d 1223, 2004-Ohio-7352 -- After three years on the case, special prosecutor sought disqualification of the assigned visiting judge. The judge unsuccessfully sought dismissal of motion. When authority to appoint a special prosecutor is in doubt because of transfer of a case to another judge, prompter action is called for.

Garcetti v. Ceballos (2006), 126 S.Ct. 1951 -- No First Amendment violation found in alleged retaliation against an assistant D.A. who within the scope of his employment was critical of allegations in a search warrant affidavit and recommended dismissal of charges. The D.A. was not speaking as a citizen. Even if he were, the question then would be justification for the actions taken against him, looking to the governmental agency's need to provide public services efficiently.

Mootispaw v. Eckstein (1996), 76 Ohio St. 3d 383, 385 -- "A prosecuting attorney will not be compelled to prosecute a complaint except when the failure to prosecute constitutes an abuse of discretion...Consequently, the decision whether to prosecute is discretionary and not normally subject to judicial review." Also see State ex rel. Evans v. Columbus Department of Law (1998), 83 Ohio St. 3d 174.

Oyler v. Bowles (1962), 368 U.S. 448 -- Defendant asserting selective prosecution must show, at least prima facie (1) 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, and (2) that the government's discretionary selection of him has been invidious or in bad faith, based upon such impermissible considerations as race, religion, or the desire to prevent the exercise of his constitutional rights. Also see United States v. Hazel (6th Cir. 1982), 696 F. 2d 473; United States v. Schmucker (6th Cir. 1983); State v. Flynt (1980), 63 Ohio St. 2d 132; Cleveland v. Trzebuckowski (1999), 85 Ohio St. 3d 524 (equal protection violation found in enforcement of pool hall ordinance); State v. Miller (1997), 122 Ohio App. 3d 111, 121-122.

Wayte v. United States (1984), 470 U.S. 598 -- Though the government admittedly selectively enforced the selective service law against certain categories of individuals, no equal protection violation found, absent proof government intended such a result, and no First Amendment violation found where enforcement policy found to be no more of a limitation on speech than necessary to ensure registration.

State v. Wilson (1979), 58 Ohio St. 2d 52, 55 -- "The Equal Protection Clause is not violated when, based upon prosecutorial discretion, a person may be charged under more than one statute and thereby receive different penalties. The use of prosecutorial discretion, in and of itself, does not violate equal protection." (However, see section on Statutory Construction, for cases on when a specific provision carrying a lesser penalty governs over a general provision carrying a greater penalty.)

State v. Barnett (1998), 124 Ohio App. 3d 746 -- Defendant maintained plea bargain in Warren County bound the Montgomery County Prosecutor, barring prosecution on additional charges. (1) State v. Urvan (1982), 4 Ohio App. 3d 151, is limited to situations where different counties attempt to prosecute allied offenses of similar import. (2) Though county prosecutors all represent the State of Ohio, they do so only within their own locale, and do not act under supervision of a broader authority such as the state Attorney General of the federal Department of Justice. Whatever the Warren County Prosecutor may have agreed to was done without apparent authority to bind the Montgomery County Prosecutor.

State ex rel. Johnson v. Talikka (1994), 71 Ohio St. 3d 109 -- Quo warranto does not lie to challenge the appointment of a special prosecutor. The proper remedy is a motion to dismiss and an appeal if the motion is overruled.

M.J. DiCorpo, Inc. v. Sweeney (1994), 69 Ohio St. 3d 497 -- Syllabus: "An affidavit, statement or other information provided to a prosecuting attorney, reporting the actual or possible commission of a crime, is part of a judicial proceeding. The informant is entitled to an absolute privilege against civil liability for statements made which bear some reasonable relation to the activity reported."

State ex rel. Botkins v. Laws (1994), 69 Ohio St. 3d 383 -- Writ of mandamus issued to compel county to pay expenses of village solicitor who prosecuted cases in the countywide municipal court. However, writ does not apply to future expenses and the county is not obligated to pay entire amount billed if it is not "reasonable."

State, ex rel. Murr, v. Meyer (1987), 34 Ohio St. 3d 46 -- Mandamus does not lie to compel prosecutor to prosecute witness for falsification on complaint filed by person witness testified against.

State ex rel. Swigart v. Barber (1997), 118 Ohio App. 3d 238 -- Prosecutor brought mandamus seeking opportunity to listen to tape of plea hearing in preparation for hearing on a postconviction petition. Court reporter refused, offering to sell a transcript. Writ granted.

State, ex rel Parker, v. Court of Common Pleas of Cuyahoga County (1980), 61 Ohio St. 2d 351 -- Prohibition does not lie against a prosecuting attorney to compel compliance with an agreement not to prosecute if defendant passed a polygraph exam, since prosecutor does not seek to exercise judicial or quasi-judicial power. (Question whether mandamus would have been more appropriate.)

Hunter v. Middletown (1986), 31 Ohio App. 3d 109 -- Headnote: "Prosecutors are considered 'quasi-judicial' officers entitled to absolute immunity where their activities are intimately associated with the judicial phase of the criminal process, and a prosecutor does not lose this immunity by conditioning an offer of dismissal of a criminal charge upon the execution of a release by the accused." Also see Anderson v. Creighton (1987), 483 U.S. 635.

Richard v. Rice (1993), 91 Ohio App. 3d 199 -- A prosecutor is entitled to absolute prosecutorial immunity against a suit claiming malicious prosecution based on the use of perjured testimony. See Imbler v. Tachtman (1974), 424 U.S. 409.

In re Disqualification of Nugent (State v. Jurek) (1987), 74 Ohio St. 3d 1212 -- Prior employment of a judge in the prosecutor's office was not a basis for disqualification where such employment was more than three years in the past, there was no evidence of a disqualifying relationship between the judge and the trial prosecutors, and there was no suggestion that the judge had had significant contact with the defendant or exposure to matters at issue in the proceedings.

State v. Green (1998), 81 Ohio St. 3d 100, 104 "(A) statement of facts by a prosecutor does not constitute evidence."

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Prosecutorial misconduct

Connor v. Thompson (2011), 131 S.Ct. 1350 – A 1983 action premised on a failure to train must be based on widespread and persistent practices. Action here involving a single Brady violation is not sustainable. Lab report was withheld. Plaintiff came within a month of execution. Suit followed acquittal at retrial.

State v. Hicks, 194 Ohio App. 3d 743, 2011-Ohio-3578 – During cross examination of the defense expert on eyewitness identification testimony the prosecutor asked if the witness would be surprised to learn defense counsel had been standing with a bunch of witnesses outside the courtroom telling them what to say. The court overruled defense counsel’s objection and at the bench threatened her with contempt if she didn’t calm down. Reversed. There was no evidence of improper coaching, nor had the prosecutor indicated such a concern previously. Evidence of guilt was not overwhelming. In fact there was substantial alibi testimony.

State v. Allen, 190 Ohio App. 3d 240, 2010-Ohio-3999 – Court refuses to reverse based on prosecutorial misconduct. Before arrest detectives tried to get the defendant to become a snitch. Asking if he called back deemed not to be an attempt to make silence and inaction an admission of guilt. Compare , State v. Leach, 102 Ohio St. 3d 135, 2004-Ohio-2147: While prosecutor improperly vouched for her witness, failure to object forces plain error review. Also counsel objected only once, though there was repeated denigration of her efforts.

State v. Beebe, 172 Ohio App. 3d 512, 2007-Ohio-3746 -- Prosecutor's references to Fifth Amendment exercise and non-exercise amounted to misconduct. Reversed notwithstanding judicial intervention.

State v. Person, 167 Ohio App. 3d 419, 2006-Ohio-2889 -- Reversible prosecutorial misconduct found in use of defendant's postarrest silence and improper hearsay testimony concerning identification of the defendant by a confidential informant who did not testify.

State v. Williams, 99 Ohio St. 3d 493, 2003-Ohio-4396, ¶ 141-154 -- Extensive prosecutorial misconduct in argument at penalty phase of a capital trial leads to reversal. Prosecutor focused on victim impact and the death of the fetus the homicide victim was carrying. Plain error reversal. Counsel found ineffective for failure to object.

State v. Smith, Clark App. No. 2003-CA-23, 2004-Ohio-665, ¶43-48 -- Officer testified that the defendant began but did not complete a polygraph after making an incriminating statement. During this testimony the officer's prior written statement concerning these events was introduced. Reversed as plain error prosecutorial misconduct: "a prosecutor should be aware of the requirements for the proper admission of evidence concerning a polygraph examination."

State v. Daniels, Cuyahoga App. No. 81367, 2003-Ohio-1344 -- Defense called a police officer as a character witness. Prosecutor, with aid from the bench, adduced testimony that the defendant's brother was in jail on homicide charges. Testimony was irrelevant. Introducing it was prosecutorial misconduct. Reversed as the court is unable to conclude beyond a reasonable doubt that the jury would have otherwise found the defendant guilty.

State v. Williams (1999), 104 Ohio Misc. 2d 27 -- Prosecutor threatened to have defendant indicted if he didn't plead guilty to misdemeanor. Defense counsel passed on client's refusal. Prosecutor obtained an indictment. Defense counsel filed a complaint charging prosecutor with coercion in violation of R.C. 2905.12(A)(4). Complaint dismissed. Prosecutor had immunity pursuant to Division (B) of the coercion statute.

State v. Thompson, 161 Ohio App. 3d 334, 2005-Ohio-2508, ¶27-41 -- It was misconduct for one prosecutor to tell defense counsel he was "full of shit" and the other to point his finger at counsel during a bench conference and say "let's have it out right now." No reversal though.

Smith v. Phillips (1982), 455 U.S. 209, 219 -- "...(T)he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor."

State v. Staten (1984), 14 Ohio App. 3d 78 -- Headnote 2: "The actions of the prosecuting attorney in failing to disclose what he knew to be the truth about the testimony of his witness which was both incorrect and misleading, and then rely on this mistaken impression in his opening and closing remarks to the jury in order to draw a favorable inference, constituted prosecutorial misconduct." Also see United States v. Johnson (8th Cir. 1981), 649 F. 2d 617, 618.

Office of Disciplinary Counsel v. Greene (1995), 74 Ohio St. 3d 13 -- Syllabus: "When a lawyer intentionally misrepresents a crucial fact to a court in order to effect a desired result to benefit a party, the lawyer will be suspended from the practice of law in Ohio for an appropriate period of time." Assistant prosecutor misrepresented reason for dismissing traffic ticket issued the wife of a Highway Patrol officer.

State v. Gardner (1998), 127 Ohio App. 3d 538 -- At 541: "Courts have been quick to label prosecutorial behavior misconduct but left affirming the conviction on the basis evidence of guilt is overwhelming...The incongruity of this rationale is that the better the state's case, the more leeway is given the prosecutor to overstep. At 546: "Lawyers who know how to think but have not yet learned respect or how to behave toward the court, their opponent, or the witnesses are a menace and a liability, not an asset, to the administration of justice."

State v. Hunt (1994), 97 Ohio App. 3d 372 -- A cross-examiner may ask a question if they have a good faith belief that a factual predicate for the question exists. A cross-examiner may not, however, make what amount to testimonial assertions under the pretext that he or she is merely asking a question. At p. 377, after listing other cases involving the same prosecutor and claims of misconduct: "A certain pattern of conduct seems to have emerged concerning this assistant prosecuting attorney. Zealous prosecution of criminal cases is expected and admired; however, continually crossing the line corrupts our system of justice and will not be tolerated. We refer the prosecutor to DR7-103 and EC 7-13."

State v. Daugherty (1987), 41 Ohio App. 3d 91 -- Prosecutor implied defendant's employment records would contradict her testimony, but failed to introduce those records and was later found to have been dishonest or mistaken as to what records showed. Headnotes 2-4: "(2) It is professional misconduct where the information is put before the jury in such a form that it appears that the lawyer is putting his own personal credibility into the balance for the jury to consider. (3) Where a trial lawyer, under the pretext of putting a question to an adverse witness upon cross-examination, actually asserts to a jury the truth of unproved information substantially harmful to his adversary, the denial by the witness requires the lawyer to produce proper proof thereof. His failure to do so entitles his adversary to a mistrial. (4) The constitutional right to a fair trial in criminal cases makes the above rules applicable to lawyers engaged in public prosecution." Misconduct found to be of such magnitude as to require discharge of the defendant.

State v. Halley (1994), 93 Ohio App. 3d 71 -- "Ordinarily, accusations of reminders of perjury by a prosecutor are improper. Such statements function as backhanded impeachment as well as attempted witness intimidation and express the prosecutor's personal belief or opinion as to the credibility of the witness, which is improper."

State v. Smidi (1993), 88 Ohio App. 3d 177 -- Mistrial should have been declared where prosecutorial misconduct included (1) use of questions to put before the jury matters which were not in evidence, (2) misstatement of facts, and (3) improper argument, including specter of trade war with Japan, reference to defendant as an habitual car thief who had "gotten away with it" in the past, holding the defendant responsible for rising insurance rates, and promising jurors they would not be prosecuted if their car contained stolen parts as the prosecutor only went after "crooks."

State v. Schiewe (1996), 110 Ohio App. 3d 170 -- Elected county prosecutor was held in direct, criminal contempt by trial judge who believed he was presenting repetitive, cumulative testimony. Reversed. Upon review, appellate court may not assume in the absence of a record that the action of the lower court was correct. Here there was no contempt as the prosecutor's actions were not disrespectful, and he was placed in the untenable position of not offering what he thought was necessary evidence if he was to comply with the court's wishes. Opinion cites numerous cases where actions of defense counsel were similarly judged.

In re Contempt of Lusnia (1997), 121 Ohio App. 3d 184 -- Prosecutors were found in contempt by juvenile court judge after they borrowed a tape of a prior hearing in a closed case, had it transcribed, then used the transcript to support a motion to have the Supreme Court disqualify the judge from presiding in a pending bindover case. Reversed.

State v. Murnahan (1996), 117 Ohio App. 3d 71 -- Prosecutor breached agreement to stand silent at sentencing by asking for the maximum. Though this conduct was reprehensible, record indicates sentencing decision was based on the judge's own assessment. See dissent.

Sidney v. Walters (1997), 118 Ohio App. 3d 825 -- Defendant claimed prosecutorial misconduct. Prosecutor did not file a brief. Court applies App. R. 18(C), accepting defendant's arguments and reversing. Concurring judge says claims had merit.

Maple Heights v. Redi Car Wash (1988), 51 Ohio App. 3d 60 -- Prosecutor was properly disqualified from further participation in case when feud had developed with defendant resulting in libel action against defendant and complaint to disciplinary counsel against prosecutor.

State v. Hiatt (1997), 120 Ohio App. 3d 247, 258-259 -- After indictment was returned, prosecutor filed voluntary recusal because he had represented the defendant's wife in a domestic relations action. Circumstances concluded not to demonstrate prejudice.

State v. Walden (1984), 19 Ohio App. 3d 141 -- Headnote 4: "If the prosecution, prior to or during trial, knows of the existence of exculpatory evidence and fails to provide it to defense counsel despite a request for production of all exculpatory evidence, this prosecutorial misconduct amounts to a denial of due process sufficient to support an R.C. 2953.21 petition for relief after judgment."

United States v. Smith (C.A.D.C. 1973), 478 F.2d 976 -- It was improper for the prosecutor to advise a defense witness that he should confer with independent counsel before testifying to determine whether to exercise his Fifth Amendment privilege, as if he testified as indicated by others, he might be prosecuted for carrying a concealed weapon, obstructing justice and as an accessory. If advice as to the privilege was required, it should have come from the bench. Compare State v. Schaub (1976), 46 Ohio St. 2d 25.

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