L IN THE COURT OF COMMON PLEAS,* HAMILTON COUNTY, onig: te BAL Te ay sem PSP STATE OF OHIO Case No. B1400k Plaintiff, —_ Judge Patrick Dinkelacker v. T Hl REPLY TO STATE’S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION FOR LEAVE TO FILE ‘ 1126740996 DELAYED POSTCONVICTION PETITION AND/OR MOTION FOR RELIEF FROM JUDGMENT ‘TRACIE M. HUNTER Defendant. The state of Ohio does not contest Judge Hunter’s central assertion—that Justice DeWine, as Special Disciplinary Counsel Frick found, used the power of his office to secure a public contract for his son with Hamilton County:Prosecuting Attomey Joe Deters but unlike Judge Hunter, who did not secure employment for her brother, never faced prosecution for his actions. Instead, the state makes several arguments in opposition to Judge Hunter’s Motion for Leave to File Delayed Postconviction Petition and/or Motion for Relief from Judgment. None of the state’s arguments have merit, TRACIE HUNTER’S MOTION FOR LEAVE TO FILE DELAYED POSTCONVICTION PETITION IS TIMELY. In its response to Tracie Hunter’s Motion for Leave to File Delayed Postconviction Petition and/or Motion for Relief from Judgment, the state contends that the court should deny the motion as untimely. (State’s Response at pp. 4-6.). Specifically, the state claims that “Hunter is chargeable with awareness of the facts on which she bases this motion no later than mid-August,2017,” and “thus has no excuse for not filing her motion for almost two years thereafter.” (Id. at p.6). The state is wrong, R.C. 2953.23 authorizes delayed postconviction petitions, that is, pet ions filed beyond the three-hundred-sixty-five-day jurisdictional deadline set forth in R.C. 2953.21. To file under R.C. 2953.23, Judge Hunter must show that she “was unavoidably prevented from discovery of the facts upon which [she] must rely to present the claim for relief,” and must demonstrate “by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found [her] guilty of the offense of which [she] was convicted.” R.C. 2953.23(A)(1)(a)(b). Unlike R.C. 2953.21, R.C. 2953.23, does not impose a specific deadline by which to seck relief. Presumably, therefore, petitions for delayed postconviction relief must be filed within atime after discovery of the grounds. See State v. Howard, 2016-Ohio-504, 59 N.E.3d 685, § 50 (10th Dist.) (a trial court may also require a defendant to show he filed his motion for new trial within a reasonable time after discovering the evidence relied upon to support the motion for new trial”). Here, Judge Hunter filed her petition for delayed postconviction relief within a reasonable time after leaming of Justice DeWine’s successful effort to secure a public contract for his son. The two-year delay in filing her motion after the information about DeWine first be ime publicly known was eminently reasonable in light of the six-year statute of limitations for the felony offense of Having Unlawful Interest in a Public Contract, R.C. 2921.42,! which has not yet expired. Had Judge Hunter filed her motion immediately upon learning of the DeWine information, the motion would have been premature, given the need for prosecutors to have sufficient time to consider ' With the exception of certain specified offenses, not including Having Unlawful Interest in a Public Contract, the statute of limitations for felonies in Ohio is six years. R.C. 2901.13(A)). 2charges. Moreover, although the statute of limitations respect to a possible charge against Justice DeWine will not run until 2023, enough time has elapsed since his conduct became publicly known to be reasonably confident that he will face no criminal charges. Accordingly, Hunter's motion is both timely and ripe. THE LAW-OF-THE-CASE DOCTRINE DOES NOT BAR JUDGE HUNTER’S. RULE OF LENITY ARGUMENT Noting that the First District implicitly rejected Judge Hunter’s rule of lenity argument when it overruled her statutory interpretation claim, the state contends that the law-of-the-case doctrine bars this court from considering her rule of lenity argument here. Contrary to the state’s assertion, the law-of-the-case doctrine does not apply where, as here, the ela ased on new information not available to the courts that previously considered the issue. “The law-of-the-case doctrine provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.” State v. Davis, 139 Ohio St.3d 122, 2014-Ohio-1615, 9 N.E.3d 1031, § 27 (internal quotation marks and citations omitted). Specifically, [the doctrine precludes a litigant from attempting to rely on arguments at a retrial which were fully pursued, or available to be pursued, in a first appeal. New arguments are subject to issue preclusion, and are barred.” Id. (internal quotation marks and citations omitted.) However, the doctrine does not apply where new information becomes available subsequent to the trial or appeal. Id. at 937. Here, the state’s failure to prosecute Justice DeWine for conduct that clearly appears to have violated R.C. 2921.42, in contrast to Judge Hunter's alleged actions, is new information that was not available at the time of her First District Appeal, which validates her statutory interpretation argument. In short, if Justice DeWine did not violate the statute by using his public 3office to request and actually secure a public contract for his son, neither did Judge Hunter, who did not secure a public contract. Thus, because the facts of Justice DeWine’s situation, including the state’s decision not to charge him, is new information that could have changed the First District’s statutory interpretation analysis, the law-of-the-case doctrine does not apply here. THE STATE HAS PROSECUTED TRACIE HUNTER IN BAD FAITH. The state claims that Judge Hunter cannot establish that she was selectively prosecuted. (State’s Response at p.9). Once again, the state is wrong. Though the burden of demonstrating selective prosecution is a heavy one, State v. Freeman, 20 Ohio St.3d 55, 58, 485 N.E.2d 1043 (1985), Judge Hunter can satisfy her burden if granted a hearing In order to meet her burden, Judge Hunter must show that her prosecution resulted from actual discrimination due to invidious motives or bad faith, Here there is ample evidence of invidious motives and/or bad faith, As will be discussed in more detail below, the state prosecuted Judge Hunter not because she had violated the law but because she had angered the Hamilton County Prosecuting Attomey’s Office by filing bar complaints against three of its lawyers, including Prosecuting Attorney Joe Deters, who then requested the court to appoint Special Prosecutors Croswell and Shiverdecker.? The special prosecutors then convened a grand jury, charging her with bogus crimes that lacked either a factual or legal basis or both, and then used the criminal case to ruin her good name and remove her from the bench. If what the state did to Judge Hunter does not count as selective prosecution, then no case ever will A. The Criminal Charges against Judge Hunter Were Retaliation for Bar Complaints She Filed Against Joe Deters and Two Other Hamilton County Prosecutors. ? Joe Deters, who initiated the criminal process against Judge Hunter, handpicked special prosecutors Shiverdecker and Croswell, who had close ties with Deters and had represented him in his personal capacity. Deters’ involvement in selecting the special prosecutors buttresses Judge Hunter’s claim of bad faith prosecution.‘Two lawyers from Deters’ office, Christian Schaefer and James Harper, represented Judge Hunter in actions the Cincinnati Enquirer and WCPO filed against her seeking to publish the names of certain juvenile respondents appearing before her in a high profile case. (Tr. Vol. 14, Sep. 11, 2014, at 1016-17, Doc. 13-14). Consistent with the Code of Professional Responsibility provisions prohibiting lawyers from undertaking representation where a conflict of interest exists, Judge Hunter told them that they could not represent her because of a conflict of interest stemming from the 2010 litigation involving the Hamilton County Board of Elections refusal to count certain ballots in her favor, litigation which was still ongoing at the time Schaefer and Harper, who led the division of the prosecutor's office that defended the Board of Elections in the election litigation, represented her. (Id. at 1023). With respect to the Cincinnati Enquirer and WCPO litigation, Harper and Schafer refused to stop representing Judge Hunter, claiming that their office had a statutory duty to represent her in her official capacity. (Jd. at 1023). Eventually, Judge Hunter filed grievances in the Ohio Supreme Court against Deters, Harper, and Schaefer “making allegations of wrongdoing in [Deters office’s] representation of her,” when they failed to answer eleven writs filed against her. (id. at 1081). Harper and Schaefer then removed themselves from Judge Hunter's case. ‘The grievances Judge Hunter filed struck a nerve, at least as far as Harper was concerned. Asked how he felt about having Judge Hunter file a grievance against him, Harper answered: “Well, it is a direct challenge upon your reputation, It is probably the worst thing other than disbarment that can happen to an attorney.” (Id, at 1085). Later Harper added, “A reputation is an important thing developed over many years, not to be played with.” (Tr. Vol. 15, Sep. 12, 2014, at 1240, Doc. 13-15). Asked later whether there should be consequences for the person. who “play[s] with” a lawyer’s representation by filing an ethics complaint, Harper responded, “Theresure should be.” (/d.). As it would tum out, Judge Hunter soon thereafter faced criminal charges for exercising her First Amendment right to report Joe Deters and other prosecutors for what she believed was their misconduct. B. The State Brought C: the Bench. inal Charges Against Judge Hunter to Remove Her from Comments from Hamilton County Prosecuting Attomey Joe Deters make clear that the reason for prosecuting Judge Hunter was. not to hold her accountable for any criminal wrongdoing—because in fact she committed no crimes—but to remove her from the bench, apparently, as discussed above, in retaliation for the exercise of her First Amendment rights. In a July 23, 2019 audio interview with the Cincinnati Enquirer, Deters recalled: “I know for a fact Croswell and Shiverdecker before indictment said that ‘if she just steps down we won't indict her. If she just walks away. She can keep her law license. She can do all that stuff.’ Then once she was indicted, before trial, they said the same thing, ‘We will dismiss everything if you just step down.” And she wouldn't do it." Sharon Coolidge, Deters on Judge Tracie Hunter's behavior: She's been a ‘Dumpster fire from the start’, Cincinnati Enquirer (July 23, 2019), available at hups://www-cincinnati.com/story/news/politics/2019/07/23/deters-hunters-behavior-dumpster- fire-start/1809949001/ (accessed Sep. 8, 2019). Seeking to remove a judge in retaliation for her filing a bar complaint is precisely the type of bad faith motivation that would support a selective prosecution claim. See State v. Flynt, 63 Ohio St.2d 132, 134, 407 N.B.2d 15 (1980) (describing “invidious” or “bad faith” prosecutions as “based upon such impermissible considerations as race, religion, or the desire to prevent [the] exercise of constitutional rights”) (internal quotation mark and citation omitted). C. The Baselessness of the Charges Underscores the State’s Bad Faith in Prosecuting Judge Hunter.All of the charges the special prosecutors brought against Judge Hunter were entirely baseless that they should have all resulted in acquittals (and would have but for the repeated attacks on Judge Hunter's character which are the subject of her petition for habeas relief). The sham charges support Judge Hunter’s contention that the state sought to use the criminal process for the bad faith reason of removing her from the bench at any cost. Counts One and Three of the original indictment charged Judge Hunter with Tampering with Evidence, and Counts Two and Four charged her with Forgery. With respect to these four counts, the state’s theory, as it would later tell the jury in opening statement, was that Judge Hunter committed these offenses when she backdated entries to deprive the prosecutor's office of its opportunity to appeal rulings in two cases. (Tr. Vol. 13, Sep. 10, 2014, at 820-830) According to the special prosecutor, Judge Hunter did not want those rulings appealed because the prosecutors “had been appealing her regularly and the Court of Appeals had been overturning her appeals,” and “she was upset with the Court of Appeals because the Court of Appeals had found her in contempt.” (Id. at 824). Thus, according to the special prosecutor, Judge Hunter in one of the cases journalized an entry on August 22 but made it appear on the journal “as if it was signed on July 23 and slipped in... chronological order between a lot of other cases showing, or appearing to show, it had been there since July 23.” (Id. at 822-23). In the other case, the special prosecutor told the jury in opening that Hunter signed and journalized an entry dated ‘August 12 that was actually created on August 19. (Jd. at 828). But there were so many problems with the prosecution’s theory, as would become evident later in the trial, that the jury could not reach a decision and the prosecutors eventually dismissed the charges. First, what the prosecution did not tell the jury in opening was that the practice of juvenile court, before Judge Hunter took the bench, was to match the date of an entry to the earlierdate of the particular hearing at issue. Lisa Miller, who worked as Judge Hunter's case manager (Tr. Vol. 24, Sep. 26, 2014, at 2485), and was responsi le for creating Judge Hunter's ent es, and who was trained to do entries by Juvenile Court supervisor Connie Murdock, (id. at 2507), told the jury that she “understood it to be” the norm to put the hearing date on an entry created after the hearing. (Jd. at 2506). To emphasize the point, defense counsel then showed Miller dozens of entries in Judge Hunter's cases which Miller, her supervisor and another case manager had date- matched to reflect the earlier hearing date. (Id. at 2513-2585; +. Vol. 25, Sep. 29, 2014, at 2644- 2664; 2667-2691; 2693-2707). Second, the special prosecutors brought the tampering and forgery counts knowing full well that Judge Hunter had not actually backdated any documents herself. Specifically, Don Flischel, who works for the company that provides and maintains the case management software used by the Hamilton County Juvenile Court, testified that Lisa Miller, not Judge Hunter, actually created the entries that the State claimed were illegally backdated. (Tr. Vo. 20, Sep. 22, 2014, at 2019). Worse, the assistant Hamilton County prosecutor who asked Flischel to create an affidavit regarding the dates the two entries were actually created, did not ask Flicsche! to include in the affidavit the identity of the person who created the entries. (Jd. at 2021, 2023). The attempt by the Hamilton County Prosecutor's Office and the special prosecutors to accuse Judge Hunter of illegally backdating entries which in fact she did not create exposes their bad faith in prosecuting Judge Hunter. Third, as a matter of law, neither Judge Hunter nor any other Juvenile Court judge could have deprived the state of the right to appeal by date-matching the entry to the earlier hearing date. Margie Slagle, an appellate attorney with the Hamilton County Public Defender’s Office (Tr. Vol. 26, Sep. 20, 2014, at 2918), explained to the jury that because juvenile cases are civil, not criminalmaiters, the clerk of courts has to journalize the entry and then serve it on the parties before the time for appeal starts to run, (/d. at 2930-2933). In support of her opinion, Slagle referenced Civil Rule 58, which is entitled “Entry of Judgment.” (Jd. at 2937). Slagle testified: ‘Well, what it says under [RuleS8](A) is that a judgment is effective only when entered by the clerk upon the journal. And then it also says it is subject to Rule 54(B). So then have you [sic] to look at Rule 54(B) and that says: when the court, signs a judgment, the Court shall endorse thereon a direction to the clerk to serve upon all parties notice of the judgment and its date of entry upon the journal. Within three days of entering the judgment upon the journal, the clerk shall serve the parties in a manner prescribed by Civil Rule (5)(B) and note the service in the appearance docket. * * * (Tr. Vol. 26, Sep. 30, 2014, at 2937-2938), Slagle also discussed Ohio Supreme Court cases that made clear that an entry in Juvenile Court did not become a final appealable order until the clerk journalizes it and serves the entry upon the parties. (/d. at 2941-43, 2947-48). See In re Anderson, 92 Ohio St.3d 63, 67 (2001) (holding that juvenile court proceeding was a civil action, and as such the thirty-day time limit for filing the notice of appeal does not begin to run until the later of: (1) entry of the judgment or order appealed if the notice mandated by rule is served within three days of the entry of the judgment, or (2) service of the notice of judgment and its date of entry if service is not made on the party within the three-day period), Furthermore, the prosecution was not harmed in any manner since it filed its appeals on time in both cases. Given the Ohio Supreme Court’s holding in Anderson, it was legally impossible for Judge Hunter to interfere with the prosecutors’ right to appeal. And in light of Lisa Miller's testimony that it was common practice in Juvenile Court to conform the entry date to the hearing date, no reasonable jury could have convicted Judge Hunter on those counts, If anything, the fact that the jury deadlocked on these four baseless counts indicates that the special prosecutor's inflammatoryattacks on Judge Hunter’s character worked and persuaded at least some of the jury to vote to convict, when they should have voted to acquit. Judge Hunter also faced charges involving her use of her Juvenile Court credit card to pay certain Ohio Supreme Court filing fees when she was forced to defend herself in eleven writ cases, after the Hamilton County Prosecuting Attomey’s Office failed to answer the writs, which resulted in default judgments against Judge Hunter. In its opening, the prosecution told the jury that Hunter sought to appeal eleven writs issued against her by the First District Court of Appeals requiring her to issue rulings in those eleven cases. (Tr. Vol. 13 at 854-55). According to the prosecution, Judge Hunter’s use of her county-issued credit card was not merely a violation of the rules but broke the law because “[s]he took $1100 from the county to pay her filing fees, which is theft. No different than if she had taken $1100 from the county to buy a pair of shoes, to buy a dog or cat.” (Id. at 856). In support of its theory, the prosecution elicited testimony that Hunter could use her county-issued credit card only for travel expenses. (Tr. Vol. 20 at 1968). However, the jury also heard evidence that the credit card agreement Judge Hunter signed with Fifth Third Bank authorized her to use the card “only for business purposes of the Borrower and within the employment or agency relationship between the Cardholder and the Borrower.” (Id. at 1978). The three credit card counts were especially baseless in light of the evidence that Judge Hunter's credit card agreement with the bank permitted her to use the card for business purposes generally, not travel expenses exclusively. Accordingly, the jury should have acquitted Judge Hunter of these charges.- Thus, as with the so-called backdating charges, the fact that the jury deadlocked on the credit card counts and the prosecutors’ dismissal of the charges, indicates, if anything, the damage the special prosecutor inflicted during the rebuttal closing by assassinating Judge Hunter’s character. 10The remaining charge for which the jury failed to convict was one count of Having Unlawful Interest in a Public Contract. This count alleged that Judge Hunter used her position to obtain overtime for her brother Steven Hunter, who was employed by the court as a correctional officer. In its opening, the prosecution told the jury: “Judge Hunter asked her bailiff, Avery Corbin, to call the jail and have the jail arrange for her brother to come work in her courtroom. It resulted in him being paid six and a half hours of overtime” (Tr. Vol. 13 at 845), a charge the special prosecutor conceded was “frankly, in and of itself, not significant.” (Jd). However, Judge Hunter's bailiff Avery Corbin testified that he was the one who arranged for Judge Hunter's brother to work a security detail outside her courtroom. (Fr. Vol. 29, Oct. 3, 2014, at 3326-29). Corbin explained that he had not spoken with Judge Hunter before calling to atrange for her brother to work security because “she hadn’t arrived yet.” (Id. at 3327). Corbin’s unopposed testimony established Judge Hunter’s innocence on this count and that the charge should have never been brought, and was properly later dismissed. As with the other hung counts, this charge should have resulted in acquittal but did not because the special prosecutor repeatedly demeaned Judge Hunter’s character during the rebuttal closing. In sum, the baselessness of the charges supports the inference that the special prosecutors brought them against Judge Hunter in retaliation for her filing bar complaints against Joe Deters and two of his prosecutors. The state’s throw-it-against-the-wall-and-let’s-see-what-sticks approach to their prosecution of Judge Hunter reveals their true invidious and improper motive to use the criminal process to settle a score. Finally, the fact that the special prosecutors, after the First District affirmed Judge Hunter's conviction on the lone count, chose to dismiss the hung counts on the day retrial was scheduled to begin makes clear that the sole goal of the prosecution vas to remove Judge Hunter from the bench rather than do justice.IV. JUDGE HUNTER MAY SEEK 60(B) RELIEF FOR THE ASPECT OF HER CLAIM THAT DOES NOT ALLEGE A CONSTITUTIONAL VIOLATION. The state correctly observes that | ants “cannot use Civil Rule 60(B) to circumvent the time limitations of R.C. § 2953.21 or the applicable exceptions in R.C. § 2953.23.” (State’s Response at p. 12). What the state ignores, however, is that this prohibition only applies where the convicted person seeks 60(B) relief on constitutional grounds, which should have been raised in postconviction. See State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, § 12 (holding that Schlee could not use Civ.R. 60(B) in his particular case because he was really seeking post-conviction relief available under Crim.R. 35 the “60(B) motion filed by Schlee was filed subsequent to his direct appeal, claimed a denial of constitutional rights, and sought reversal of the judgment rendered against him”) (emphasis added). Here, Judge Hunter has alleged in the alternative constitutional and non-constitutional bases for relief, the former in her motion for leave to file delayed postconviction petition, and the latter in her 60(B) motion. Her 60(B) motion does not claim a denial of constitutional rights but instead seeks relief on the basis that her convietion is unfair in light of the state’s decision not to prosecute Justice DeWine for far more troubling conduct that more clearly falls with R.C. 2921.42’s prohibition that anything Judge Hunter was alleged to have done. Thus, her 60(B) claim, which does not allege a constitutional deprivation, should be allowed to proceed irrespective of the court’s ruling on the constitutional claims she seeks to raise through a delayed postconviction petition, CONCLUSION For the reasons set forth in Tracie Hunter's Motion for Leave to File Delayed Postconviction Petition and/or Motion for Relief from Judgment and in this reply, the court should 12grant a hearing on both motions. Additionally, Judge Hunter requests oral argument on her motion, Respectfully submitted, Singleton (0074556) Jennifer L. Branch (0038893) Attorney or Tracie M. Hunter Co-counsel for Tracie M. Hunter Ohio Justice & Policy Center Gerhardstein & Branch Co. LPA 215 E. Street, Suite 601 441 Vine Street, Suite 3400 Cincinnati, Ohio 45202 Cincinnati, Ohio 45202 (513) 621-9100 (513) 421-1108 (ext. 17) 6513) 345.3545 (Fax) Ce jbranch@gbfirm.com dsingleton@ohiojpe.org CERTIFICATE OF SERVICE hereby certify that a true and accurate copy of the foregoing motion and memorandum, was served by U.S. First Class mail upon Special Prosecutor R. Scott Croswell, IIl, Croswell & Adams Co. LPA, 1208 Sycamore Street, Olde Sycamore Square, Cincinnati, Ohio, 45202, and Special Prosecutor Merlyn D. Shiverdecker, Carr & Shiverdecker, 817 Main Street, Suite 200, Cincinnati, Ohio 45202, on this 24" day of September, 2019.