|Special Report: SECRET
COURT ORDERS WRITTEN BY PROSECUTORS COVER-UP ERRORS IN CRIMINAL PROSECUTIONS
In Cincinnati, Ohio, Orders signed by the Judges of the Hamilton County Court of Common Pleas dismissing Motions for New Trial, Petitions for Post-Conviction Relief and Motions to Withdraw Guilty Pleas, filed by prisoners after their convictions, are being secretly prepared by the Hamilton County Prosecutor's Office and secretly placed on the Judge's desks, in the guise of "Proposed Orders," without ever being first filed with the Clerk of the Court, or the prisoner being sent a copy. Whether this gross breach of the rules governing court procedures is practiced by other County Prosecutor Offices in Ohio is unknown at this time.
These "Proposed Orders" contain materially different citations to the records of the trial, materially different case law and materially different legal argument, from the cites to the record, case law and argument that the prosecution presented in the Responses and Replies which were initially filed by them in response to the Motion or Petition. The Prosecution's first response is properly filed with the Clerk of the Court and the prisoner is sent a copy to give him/her an opportunity to Reply to both the facts, (cites to the record), and case law and argument the Prosecutor uses in his/her defense against the prisoner's claims of Constitutional infirmity, as is required by the Rules of Court establishing a fair adversarial process.
These "Proposed Orders" are never sent to the prisoner, and the prisoner is never given an opportunity to correct erroneous facts, distorted facts, or the new case law and new argument presented which is based on, many times, the new "manufactured" facts set forth in these "Proposed Orders" and the "Findings of Fact and Conclusions of Law" issued as "Orders" from the Courts in the case.
Our adversarial process is based on each party to any action being given full access to what the other party is presenting to the Court in support of their position in the cause of action, and the opportunity to present to the Court an Answer, Response or Reply to what the other party has said, and to correct any mistakes of either the facts or law presented by the opposing party. This is why both Civil and Criminal Rules of Procedures contain a specific rule requiring a "Certificate of Service" be attached to any Court filing in a case, and prohibiting the Clerk of the Court from even filing any document submitted without a Certificate of Service. The Clerk of the Court acts as a buffer between the parties and the Judge in this circumstance, and prevents the Judge from even seeing any document which does not contain a Certificate of Service; in fact, actually returning the document to the party who sent it to the Court.
Such a paper is called an "Ex Parte" communication with the Court. Any "Ex Parte" communication has the 'danger of prejudicing the Court against the -opposing party if it contains "material" facts, case law or argument which would tend to swing the Court's opinion about the case in favor of the party who submitted it, without sending a copy to the other party, and without giving the other party a chance to give the Judge the "other side of the story."
An "Ex Parte" communication with a Judge, which contains "materially prejudicial” case law or legal argument, is automatic reversible error on appeal. This is a universal rule in American Courts.
The Hamilton County Ohio Prosecutor's Office has a secret special section of prosecutors who review cases submitted by prisoners, draft these secret "Proposed Orders," and lay them quietly on the Judge's desks for the Judge to sign. Those "Proposed Orders" are the Orders the prisoner then receives when the Court dismisses the case, and are the "Orders" reviewed by the Court of Appeals. Whether or not the "Appeal" section of the Hamilton County Prosecutor's Office also prepares the "Orders" received from the Hamilton County Court of Appeals is unknown at this time.
"Findings of Facts and Conclusions of Law," as opposed to an "Order," are issued in all prisoner Post-Conviction Petitions in Ohio. Supposedly these are a product of the Trial Court Judge reading the transcripts of the trial, and any new evidence submitted by the prisoner., and producing this Order. But in fact, because the Judges have such a tremendous number of cases assigned to them, trials to conduct, hearings to hold, etc., the Judges simply do not have the physical ability to sit and read hundreds of pages of a trial transcript, plus all the motions filed, or to view the physical evidence presented. (See, "All the King's Horses and All the King's Men...," statistically proving U.S. Courts of Appeals Judges must have read 862 pages of Court documents each day to have dismissed the 11,297 Habeas Corpus cases that were dismissed in the year 2000).
Knowing the Judges have literally more work than they have hours to do it in, the Hamilton County Prosecutor's Office has taken advantage of human nature and given these Judges an easy way out. They prepare these "Proposed Orders," lay them on the Judge's desk, and all the Judge has to do is sign and file them with the Clerk of the Court to dismiss a case from their Court Docket. All too many times this is exactly what the Judge does, trusting the Prosecutor's Office to have complied with their duty to "seek justice" in every case. Unfortunately the Prosecutor has a vested interest in having these cases dismissed, especially where Prosecutorial Misconduct is one of the issues raised, and has been known to distort the facts of the trial record.
An example of this happened to me. The Hamilton County Prosecutor, in my New Trial Motion, secretly submitted a "Proposed Order" to my new Trial Court Judge, after they had filed a public response on December 18,2003, to which I replied on January 9,2004. Judge Charles J. Kubicki is a new judge, and unlike many of the older judges in Cincinnati, Judge Kubicki has a strict personal policy of reading every trial transcript in every case before him. Judge Kubicki rejected the “Proposed Order” submitted by the Hamilton County Prosecutor in my New Trial Motion. This “Proposed Order” was then “tweaked” in the prosecution’s computer and publicly filed nine (9) months after the close of all briefing in my New Trial Motion, as an "Amended Response," purportedly "amending" the Response they had filed before. This "Amended Response" was filed on September 17, 2004.
This "Amended Response" states that the girl I was charged with raping
had "went to the hospital for a rape exam after Love's last assault," and
cites to pages 419-420 of the trial transcript. This was stated by the
prosecution to give the judge the impression there was in fact a medical
exam and physical evidence to support the charges against me. It was stated
to give the impression there was "overwhelming evidence" of guilt in my
case, so any "complaint" by me would be deemed merely a "technical" error
which would not have changed the outcome of my trial--a required finding
before my New Trial Motion could be granted. Yet no such evidence was ever
presented at my trial. In fact, the opposite is true. The girl did not
go to the hospital and no "rape exam" was ever preformed. There is no physical
or medical evidence to show the girl was ever raped by anyone. Judge Kubicki,
having actually taken the time to read the trial transcripts, unlike many
other judges, knew this and rejected the prosecution's "Proposed Order."
Not only did this "Amended Response" contain errors of fact prejudicial to my New Trial Motion, it contained new case law, new legal arguments and new defenses that had not been raised in their first Response. They claimed they should be allowed to file this "Amended Response" nine (9) months late because they had been unable to find my trial transcripts when they had filed their initial response in December 2003. My attorney, Bill Gallagher of Cincinnati, filed a Motion to Strike their "Amended Response," and informed the Court that he had personally supplied the prosecutor with a complete copy of the transcripts of my trial on January 9th, 2004 when we had filed our Reply to the prosecution's Response of December 18, 2003. By Rule, the prosecution had 14 days after our Reply of January 9th, 2004, to file any Traverse to the facts we had presented to the Court, and failed to do so.
When the Prosecutor's Office had "tweaked" their "Proposed Order," and changed it into the "Amended Response," they had failed to do several things which gave away the original purpose of the document. The "Heading" on the "Amended Response" was that of an "Order" coming from the Judge, not that of a party filing an "Amended Response." Further, the text of their "Amended Response" was rife with the phrase, "this Court," as is used in Orders issued by the Court, not in motions filed by the prosecutor. It's original nature was obvious to anyone with experience in litigation, and the difference between "motions," "responses" and Court "Orders," in text, tone and nuance.
Upon receiving it I called my attorney and placed before him my concerns that we had been subjected to a materially prejudicial Ex Parte communication by the prosecution attempting to get my New Trial Motion-dismissed. I told my attorney that I had seen a similar situation last year in Federal Courts which had resulted in a Federal prisoner's Post-Conviction being reversed on appeal when it was discovered the united States Assistant District Attorney had actually written the "Findings of Fact and Conclusions of Law," the Federal District Judge had signed and issued in the case, and that this Order had been submitted Ex Parte to the Federal Judge, secretly, and without the Federal prison ever having seen a copy of it, or being allowed to file any Response or Answer to it. The United States Court of Appeals held the "Proposed Order," because it, "contained materially different facts, case law and argument," was an Ex Parte communication with the Court and was per se reversible error warranting not only the reversal of the case, but the removal of the Judge from the case for actions that gave the appearance of partiality and favor towards the Government.
My attorney was quiet for a moment in thought. He then stated that he believed I was correct, and that the "Proposed Orders," and "Proposed Findings of Fact and Conclusions of Law," which he had personally seen submitted to Judges in Cincinnati, Ohio, are in fact "Ex Parte" communications. He stated that no one he knew had ever thought of them in that light, or given them much thought at all, because this had been the practice of the Hamilton County Prosecutor's Office for years in Cincinnati. No one had ever thought to challenge the practice.
There is another aspect of this unconstitutional practice that should be explored before I end this article.
The Republican Party has controlled the Hamilton County Prosecutor's Office since 1938. The Hamilton County elected Prosecutor is the Chairman of the Hamilton County Republican Party. The vast majority of Judges of the Hamilton County Court of Common Pleas are Republican. They must go to the prosecutor for campaign funds when they run for re-election, and depend on him to support their petitions for campaign funds. I suggest these Judges are not inclined to scrutinize the "Proposed Orders," or "Proposed Findings of Facts and Conclusions of Law," that are quietly laid on their desks, too closely. (Note the most recent prosecutor has been forced to resign as Chairman of the Republican Party after being exposed for an extramarital affair with another prosecutor in a rather messy and public scandal. But prior to this Hamilton County Prosecutors have traditionally been the Chairman of the Republican Party in Cincinnati. It is a real "good old boys" club in the extreme).
In light of this, the temptation for these Judges to take the easy way out and trust the prosecutor's "Proposed Orders" and interpretation of the facts appearing on the record of the trial, without double-checking or reading the transcripts themselves, must be almost irresistible when faced daily with a crowded Court Docket and more work than can be done in the hours available.
How widespread this practice of allowing the prosecutors to write and submit secret orders for the Judges to simply sign and file is not known by the author. I do know it has happened at the Federal level, as reported last year, and now at the County level of out Judicial System, as reported above.
While, ideally, prosecutors are charged by oath to seek justice, and
to that extent are even considered to be attorneys for the defendant, the
recent publicity surrounding prisoners now exonerated by new DNA evidence
shows prosecutors are sometimes motivated by less honorable ideals. It
has become common to see a prosecutor on 48 Hours, primetime or 60 Minutes,
stone-faced while arguing a position of maintaining the prisoner's guilt
that seems more wishful thinking and fantasy than the logical position
for them to take, considering the new evidence that millions of viewers
have just seen presented on that program. That is on national television.
I ask you to consider that if prosecutors are willing to go on national
television and appear to be a fool in front of millions of viewers, how
more extreme are they willing to be in cases that will never receive any
news coverage, and which are hidden in the thousands of cases on a court
docket handled each year and unreported to the public? To have that willingness
After 14 years in prison I was taken back to Court in November for an Evidentiary Hearing on my Motion for New Trial filed based on Newly Discovered Evidence proving I am innocent. Contrary to popular belief, the removal of a prisoner from prison, and the holding of an evidentiary hearing on a Motion for New Trial in a case as old as mine, is an extremely rare occurrence. After the hearing the Judge ordered me returned to prison, stating he would write his Opinion and Ruling on my New Trial Motion "sometime after Thanksgiving." As of January 2nd, 2005, I am still awaiting that decision.
I know that by writing this article I am inviting retaliation from the Hamilton County Prosecutor's Office. But I have known the above for several months and cannot remain silent any longer about this perfidious and totally unfair and unconstitutional practice of allowing the Prosecutor's Office to continue to submit Ex Parte Proposed Orders to the Judges of the Hamilton County Court of Common Please in order for them to cover-up prosecutorial misconduct and wrongful convictions. Too many people's lives are being ruined by it, and the wrong-doing of the Government is being hidden from both the prisoners of Ohio and the public. I cannot, in good conscious, remain silent any longer.
What is most disturbing to me is that this practice of the Prosecutor in Hamilton County submitting secret government briefs in the form of these "Proposed Orders" may well have been occurring for the past 20 years without exposure or correction, indicating a collusion with the Judges to which these Orders were submitted for so long. In light of this, every criminal conviction in Cincinnati, Ohio for the past 20 years may well be subject to reopening and reversal. Except for those men already executed by Ohio.
I have told you what I know to be true. It is now up to you to do something about it. Other than write this article, I can do nothing about it.
Until next time, this is Jim Love reporting From The Front Line.
James F. Love #329-475
James Love. All Rights Reserved.
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