Hurst Motion to Restrain

«HEADER» HAMILTON COUNTY, OHIO

State of Ohio : CASE NO.: «casenumber» PLAINTIFF : JUDGE: «judge» -vs- : «defendant» : DEFENDANT’S MOTION TO DEFENDANT RESTRAIN CERTAIN PARTIES : FROM DISCUSSING THE CASE WITH ACCUSED

Comes now the Defendant, «defendant», by and through counsel, and respectfully moves

this Court to issue an order restraining the agents for the State of Ohio, including but not limited to

employees, prosecutors, Law Enforcement Officers (as defined by R.C. 2901.01(K)), any social

workers and psychiatric personnel, corrections officers, Police and Sheriff's Department

employees, and all inmates and county jail personnel from initiating or engaging in conversations

with the accused relating in any way to the pending charges without the presence of «pronoun»

counsel. This would include not only the facts relating to the underlying offenses, but also to any

ongoing investigation by either party, any court proceedings, and any other information about the

case without the advice, consent and presence of defense counsel. The reasons for this request are

set out in the accompanying memorandum.

Respectfully Submitted,

______«attorney», # «osc_number» Attorney for Defendant Hamilton County Public Defender «address1» «city», «state» «zip» «phone» MEMORANDUM IN SUPPORT

[FACTS]. The seriousness of these charges requires the utmost care to assure that the

Accused receives the fullest guarantee of every fundamental right. Jail personnel, officers, and inmates may attempt to obtain information from Defendant in the hopes of assisting the State in its case.

Defendant hereby gives notice to the Court that «he_she» wishes to exert «pronoun» constitutional rights to remain silent, to due process of law, to effective assistance of counsel, to a fair trial, and to freedom from 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. «Lastname» further states that «he_she» does not wish to be questioned, interviewed, or otherwise interrogated or engaged in conversations concerning this or any other crimes by any city, county, state, or federal authorities or law enforcement personnel.

Defendant will suffer irreparable injury for which «he_she» has no present adequate remedy at law if the requested order is not made. Because of the serious consequences of any attempt to interfere with the Accused’s constitutional right to due process through the exercise of the right to silence and the advice of counsel, the preservation of these fundamental rights overrides any slight inconvenience in enforcing such an order.

In exercising «pronoun» right to silence and the right to counsel, the Accused must deal with the realities of incarceration with its lack of privacy and its curiosity seekers. Officers, employees, and inmates wander freely throughout the jail facility and the courthouse performing their individual jobs. Because of the notoriety of this type of case, and of this case in particular, the curiosity toward an accused charged as the Defendant is charged, and the temptation to discuss

2 the details of the case, the various personnel could knowingly or even unwittingly entice the

Defendant into a discussion of the case.

In addition to Defendant’s precarious position being surrounded by inmates, officers and other jail personnel, «he_she» continues to be isolated from family, friends, and familiar surroundings. In this stressful situation, «he_she» would naturally seek the companionship of those who appear interested and concerned in «pronoun» welfare, regardless of their sincerity. No matter how benevolent these persons might appear to the Accused, the jail and court personnel are still employees of the State who might use their access to otherwise inaccessible areas to knowingly or unknowingly entice Defendant into a discussion of the case.

The New York Court of Appeals has recognized the need for judicial action in such instances, and has acted to prohibit the police from questioning a suspect absent an affirmative waiver in the presence of his attorney. People v. Hobson, 348 N.E.2d 894, 898-899, 39 N.Y.2d

479, 384 N.Y.S.2d 419 (N.Y. 1976). The Hobson court recognized that once an accused is represented by counsel, as the Accused herein is, then any waiver of the right to counsel obtained without the presence or assistance of counsel is insufficient to meet the requisite degree of voluntariness. A right too easily waived is no right at all. Id. at 897. Defendant sits in constant jeopardy of misconstruing the intentions of those who might discuss the case with «him_her» and to involuntarily waiving «pronoun» fundamental rights. Once «he_she» speaks to anyone about the case, «he_she» loses control over the passage of that conversation to other State authorities.

“The danger [here] is not only the risk of unwise waivers... but the more significant risk of inaccurate, sometimes false, and inevitably an incomplete description of the events described.” Id. at 899.

3 The State may not use a private citizen inmate as an agent to obtain information from the accused. Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985); United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980); Massiah v. United States, 377

U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). Any inmate acting on his or her own or under

State direction based on the hope or promise that information obtained from the accused can be traded for favorable treatment in his or her own case or while incarcerated acts as an agent for the

State. This type of action must be prohibited in order to protect Defendant’s right to silence and to effective assistance of counsel.

Such an order as requested herein is consistent with Ohio case law. In State v. Gooden, 16

Ohio App. 3d 153, 474 N.E.2d 1237 (1983), while affirming the accused’s conviction on other grounds, the court recognized that admission of inculpating statements made by the accused to prison officials while in custody and without Miranda warnings was error. Additionally, the Ohio

Supreme Court, in State v. Jenkins, 15 Ohio St. 3d 164, 473 N.E.2d 264 (1984), recognized that inculpating statements made by the accused at the hospital emergency room were admissible because the accused had voluntarily, knowingly and intelligently waived his Miranda right to remain silent. Id., 15 Ohio St. 3d at 229-233, 473 N.E.2d at 318-322. The conclusion to be drawn is that any statements made by the accused, while in custody, are inadmissible unless the accused is explicitly advised of «pronoun» Miranda rights and «he_she» knowingly, intelligently, and voluntarily chooses to waive these rights.

Wherefore, Defendant respectfully moves this Court to issue an order restraining the agents for the State of Ohio from initiating or engaging in conversations with the accused relating in any way to the pending charges without the presence of «pronoun» counsel.

Respectfully Submitted,

4 ______«attorney», # «osc_number» Attorney for Defendant Hamilton County Public Defender «address1» «city», «state» «zip» «phone»

CERTIFICATE OF SERVICE

I hereby certify that a copy of this document was served upon the Hamilton County Prosecutor/City of Cincinnati Prosecutor on ______by:

 Ordinary Mail  Fax  Hand Delivery  Dedicated Drop Box

______Attorney for Defendant