«header» HAMILTON COUNTY, OHIO

State of Ohio : CASE NO.: «casenumber» PLAINTIFF : JUDGE: «judge» -vs- : «defendant» : DEFENDANT’S MOTION TO DISMISS DEFENDANT DUE TO CONSTITUTIONAL : INFIRMITIES EVIDENT IN THE SELECTION OF THE GRAND JURORS AND/OR THE APPOINTMENT OF THE GRAND JUROR FOREPERSON

Defendant, through counsel, respectfully requests that this Court dismiss the indictment on

the grounds that it was handed down by a Grand Jury convened in violation of Defendant’s

constitutional rights. If this Court is not willing to dismiss the indictment based on this Motion

alone, then Defendant, through counsel, requests in the alternative that this Court schedule an

evidentiary hearing on this Motion at which time Defendant could and would adduce evidence in

support of the arguments advanced herein.

MEMORANDUM IN SUPPORT

Defendant, through counsel, asserts that race is improperly considered as a factor in the

drawing, selection and empanelment of grand jury venirepersons, grand jury forepersons.

Like other capital and non-capital cases, the grand jurors who returned the indictment

against Defendant were drawn from this County’s voter registration lists. Grand jury forepersons

are selected by a County Common Pleas Court Judge. A clear pattern of racial bias emerges from

a review of the grand jury process in this County. For example, there have been [INSERT

FACTS] grand jury panels which have returned capital indictments from [INSERT span of years

since current capital scheme adopted in 1981]. Of those grand jury panels, on only [INSERT

NUMBER] panels the forepersons were African-American and the foreperson was white (or other) on the remaining [INSERT NUMBER]. A comparison of these figures to the

African-American population in this County during those years (about [INSERT

PERCENTAGE] ) demonstrates such a significant disparity that it amounts to the systematic

under-representation of grand juries and grand jury forepersons. Any system which discriminates,

either de facto or de jure, cannot withstand constitutional scrutiny. [OPD has statistics for

Hamilton County - call for information.]

Any person “held to answer for a capital, or otherwise infamous, crime” possesses the right

to indictment by a grand jury. Ohio Const. art. I, § 10. The right to challenge the array or the

qualifications of jurors is primarily a statutory right. However, the right to challenge the grand

jury array or individual jurors is also grounded in the due process and equal protection clauses of

the Fifth and Fourteenth Amendments. While it is true that the United States Constitution does not

require grand jury indictment in criminal prosecutions, it is axiomatic that once a state decides to

use a grand jury system, the federal constitutional principles of due process and equal protection

apply to the selection and empanelment process. See Carter v. Jury Commission of Greene

County, 396 U.S. 320, 330 (1970); Jefferson v. Morgan, 962 F.2d 1185, 1188 (6th Cir. 1992); and

Aldridge v. Marshall, 765 F.2d 63, 68 (6th Cir. 1985).

In Costello v. United States, 350 U.S. 359 (1956), the Court stated that due process requires

that an indictment be “returned by a legally constituted and unbiased jury . . . ” Id. at 363 (citing

Pierre v. Louisiana, 306 U.S. 354 (1939)). See also Bank of Nova Scotia v. United States, 487

U.S. 250, 256-57 (1988). Likewise, the Court has construed the Sixth Amendment right to a trial

by jury as including the right to a grand jury drawn from a fair cross-section of the community.

Duren v. Missouri, 439 U.S. 357 (1979; Campbell v. Louisiana, 523 U.S. 392 (1998). The Court

has also recognized a similar right under the equal protection clause of the Fourteenth

2 Amendment. Castaneda v. Partida, 430 U.S. 482, 492-93 (1977); Duren, at 368, n. 26; Alexander

v. Louisiana, 405 U.S. 625, 626, n. 3 (1972) (constitutional principles governing systematic

exclusion of grand jurors are essentially the same as those applied to petit jurors); Campbell v.

Louisiana, 523 U.S. 392 (same). Systematic exclusion of African-Americans from the grand jury

violates the indicted individual’s rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth

Amendments. Amadeo v. Zant, 486 U.S. 214 (1988); Vasquez v. Hillery, 474 U.S. 254 (1986);

Campbell v. Louisiana, 523 U.S. 392.

Beginning with Strauder v. West Virginia, 100 U.S. 303 (1879), the United States Supreme

Court has consistently prohibited racial discrimination in the criminal justice system. In Strauder, the Court held that a state denies an African-American defendant equal protection of law when it puts him on trial before a jury from which African-Americans have been excluded because of their race. Id. at 310. Strauder recognized that the primary purpose of the Fourteenth Amendment is to

remedy the evil of racial discrimination. “[I]ts design was to protect an emancipated race, and to

strike down all possible legal discriminations against those who belong to it.” Id. The Fourteenth

Amendment stands for the principle that the law shall be the same for all people, and that all

persons, regardless of their respective races, shall stand equal before the law. Id. at 307. The principle announced in Strauder has never been questioned in any subsequent decision of the

United States Courts. Batson v. Kentucky, 476 U.S. 79 (1986).

In cases following Strauder, the United States Supreme Court has repeatedly struck down

state procedures that were racially discriminatory. See Neal v. Delaware, 103 U.S. 370 (1880),

and Hollins v. Oklahoma, 295 U.S. 394 (1935). In Smith v. Texas, 311 U.S. 128 (1940), the

Supreme Court held that racial discrimination that results in the “exclusion from jury service of

otherwise qualified groups” violates not only the Constitution, “but is at war with our basic

3 concepts of a democratic society and a representative government.” Id. at 130. See also Shelley v.

Kramer, 334 U.S. 1 (1948) (judicial enforcement by state courts of restrictive covenants which discriminate against African-American purchasers of real estate is a denial of equal protection);

Cassell v. Texas, 339 U.S. 282 (1950) (equal protection clause prohibits racial discrimination in

the selection of the grand jury; a criminal conviction must be reversed where it is based upon an indictment returned by a grand jury from which black persons have been excluded by racial discrimination); Avery v. Georgia, 345 U.S. 559 (1953) (procedure employed in choosing

prospective petit jurors violated equal protection and provided easy opportunity for those to

discriminate who are of a mind to discriminate). The method used to select a grand jury foreperson

must also be made in a racially neutral manner consistent with the Sixth and Fourteenth

Amendments. Rose v. Mitchell, 443 U.S. 545 (1979); State v. Cofield, 379 S.E.2d 834 (N.C.

1989); Campbell v. Louisiana, 523 U.S. 392.

Racism in the imposition of the death penalty is the ultimate example of arbitrary,

disproportionate, and cruel and unusual punishment. It is the antithesis of any evolving standard of

decency. Race disparity eviscerates equal justice, equal protection and due process of law, and it

can never be condoned.

The damage caused by the consideration of race in the selection of the grand jury venires is

not limited to the defendant. The jury system, the law as an institution, the community at large and

the democratic ideals reflected in the process of our courts, suffer irreparable damage. Ballard v.

United States, 329 U.S. 187, 195 (1946). The right to have a jury consider one’s case guarantees the

suspect a review by an impartial jury. The failure to offer the accused a fair tribunal violates even

the minimal standards of due process. In re Oliver, 333 U.S. 257 (1948).

4 The policies adopted and procedures employed in the drawing, selection and empanelment

of grand jurors and grand jury forepersons in this County evidence systematic exclusion of

African-Americans. The errors in seating the Grand Jury and in selecting the Foreperson of the

Grand Jury that returned the capital indictment against Defendant violated Defendant’s constitutional rights to due process, equal protection, and a fair cross-section of the community, and

his right to be free from arbitrary, cruel and unusual punishment. U.S. Const. amends. V, VI, VIII,

IX and XIV; Ohio Const. art. I, §§ 1, 2, 5, 9, 10, 16 and 20.

Therefore, this Court should dismiss the indictment and discharge Defendant. In the

alternative, if this Court is not inclined to grant the instant Motion based on the matters set forth

herein, then Defendant requests that an evidentiary hearing be scheduled at which evidence can be adduced in support of this motion.

Respectfully Submitted,

______«attorney», # «osc_number» Attorney for Defendant «address1» «address2» «city», «state» «zip» «phone»

CERTIFICATE OF SERVICE

I hereby certify that a copy of this document was delivered to the office of the Prosecutor on November 5, 2010.

______Attorney for Defendant

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