% ^'V IN THE SUPREME COURT OF OHIO A ^ ^ ^^3i ^,,,Y' ;.1^ i^ ^%/ State of Ohio, On Appeal from the Franklin County Court of Appeals, Plaintiff-Appellee, Tenth Appellate District Court of Appeals V. Case No. 13AP-816 Anthony Moses, Defendant-Appellant. MEMORANDUM IN SUPPORT OF JURISDICTION Ambrose Moses, IfI (0055231) (COUNSEL OF RECORD) 1900 Polaris Parkway, Suite 450 Columbus, Ohio 43240 Tel (614) 418-7898 Fax (614) 418-7298 Email: info MosesLaw.pro COUNSEL FOR APPELLANT ANTHONY MOSES Orly Ahroni, Esq. Columbus City Prosecutor 375 South High Street, 7th Floor Columbus, Ohio 43215 Counsel for Appellee State of Ohio, City of Columbus s/t^5 C jy ti^ ^. 1 Table of Contents Proposition of Law 1: "Structural, fundamental, and reversible error occurs when the accused African American, after making a non-frivolous showing of questionable conduct and motives by the prosecutor, is denied an evidentiary hearing on his motion to dismiss due to selective prosecution. This is particularly true where the prosecutor's questionable conduct includes, but is not limited to, 1) the perceived race-based preference given by the prosecutor to the cross-filed complaint of the white complainant over that of the black complainant, and 2) the prosecutor's refusal to follow his policy and refer the black person's cross- complaint against the white prosecuting witness to an independent special-prosecutor for a probable cause determination." Proposition of Law 2: "Structural, fundamental, and reversible error occurred when the prosecutor, in interviewing ("interrogating") an unrepresented individual, concealed and otherwise failed to disclose to said individual that the decision had been made to prosecute that individual. It is impermissible for the prosecutor, as a lawyer, to interview ("interrogate") an unrepresented individual without informing the individual that charges have been approved against him and that he has the right to remain silent and to not incriminate himself." Substantial Constitutional Question and Question of Public and Great General Interest - Page 3 Statement of the Case and Facts - Page 4 Argument - Page 8 Signature -- Page 18 Certificate of Service - Page 19 Exhibit 1 - Court of Appeals Judgment Entry - April 25, 2014 Exhibit 2 - Court of Appeals Decision - April 24, 2014 2 Constitutional Question and Question of Public and Great General Interest This case presents both a question of public and great general interest and a substantial constitutional question. A. The Ohio Commission on Racial Fairness issued a report finding that there is a factual and statistical basis for the perception of racial discrimination in Ohio's criminal justice system. The failure of the city prosecutor, municipal court judge, and the court of appeals to address the is structural and fundamental error that goes to the integrity of Ohio's criminal justice system when it comes to the handling of cross- filed criminal charges between black and white citizens. Ohio's criminal justice system is biased against people of color, denies them fundamental fairness, and results in the wrongful conviction of innocent individuals as it did in this case. B. The prosecutor concealed the fact that the decision to prosecute Moses had been made. Moses was unrepresented by counsel at the time. The prosecutor, as a lawyer, interviewed (`5nterrogated") an unrepresented individual without informing the individual that charges had been approved against them and that the individual was now talking to the agency that was pursuing criminal charges against said individual. Both A and B above are substantial constitutional questions because they concern, but are not limited to, due process and equal protection. This implicates and denies the accused his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution." Both A and B above are matters of public and great general interest because, as found by the Ohio Commission on Racial Fairness, these issues impact a great many Ohio citizens and residents. The Ohio Supreme Court and the Ohio Bar Association commissioned The Ohio Commission on Racial Fairness. In 1999, after several years reviewing the fairness of Ohio's legal system, the Commission issued The Report of the Ohio Commission on Racial Fairness.' The Ohio Supreme Court, through the Commission's report, gave judges, prosecuting attorneys, defense attorneys, and Ohio citizens important insight and formal acknowledgment of the perceptions of racial bias and discrimination against minorities in Ohio's criminal justice system. It also acknowledged that there is a factual basis and statistical disparity which validate these perceptions. 1 The Report of the Ohio Commission on Racial Fairness, 1999, at p. 36; ht^:,•^^r^vsu^^rs mec^^^^ t,c^hic^.^ov!t'^iiic ati^^ ^fa ir ness_ftlinu su&. Statement of the Case and Facts Appellant, Anthony Moses, appeals from a judgment entry of the Franklin County Court of Appeals affirming a judgment entry of the Franklin County Municipal Court entering judgment finding him guilty of assault and disorderly conduct. Moses asks that this Court reverse the court of appeals' judgment entry and issue a just and appropriate order which will reverse the Franklin County Municipal Court's Judgment finding him guilty and remand this case to the trial court with an order to conduct an evidentiary hearing on the motion do dismiss due to selective prosecution and, if necessary, to conduct a new trial. STATEMENT OF THE FACTS On or about August 18-19, 2012, Anthony Moses was working as an entertainment DJ at The Ugly Tuna Saloona, which was a bar near The Ohio State University's main campus in Columbus, Ohio. On or about August 18-19, 2012, Nicholas D. Klacik ("Klacik") was a 21-year-old, Caucasian bar patron at The Ugly Tuna Saloona who, according to police records, was intoxicated after having consumed a few beers at his apartment with his roommates and then consuming more beer at The Ugly Tuna Saloona shortly after arriving. At approximately 2:01 am, Moses was playing the last song of the night. Moses was onstage, behind his DJ table, which is a 5 foot table with all of his equipment on it. At approximately 2:03 am, during Moses' performance, Nicholas D. Klacik, while holding a bottle of beer in his left hand, stepped around the end of Moses' DJ table, 4 stage left, and approached him both verbally and physically in an aggressive and threatening manner. Klacik, beer in hand, came up behind the table and leaned over Moses' dance partner's shoulder and said to Moses, "This is some pussy music... turn that shit off!" During the incident, Klacik said this phrase a few times as he leaned into, pressed and pushed Moses with his body. While it is common and expected that patrons will make personal song requests, Klacik was intoxicated, aggressive, disrupting the show, out of control, and did not even request a song. Rather, Klacik was a heckler who had gotten onto the stage and was disrupting the show. As an entertainer, Moses knows and expects that heckling can occur. The problem here was that Klacik had made it onto the stage and behind the DJ table. And, security had already left the stage to help patrons exit the bar. This left Moses onstage and unprotected from the scenario of an intoxicated, heckler getting onstage and behind the DJ table. Klacik's verbal hostility and his physical aggression towards Moses were threatening and made Moses fearful that Klacik was going to do harm to Moses and Moses' equipment. Moses used his left arm to shield his equipment and to create a buffer to keep Klacik off of him. Moses stated to Klacik'"chill out bro, we all having a good time". Klacik then stated something to the effect of "that is bullshit..." as he continued to lean into and push Moses with his body. As an entertainment professional, Moses sometimes uses humor and peer pressure from the crowd to respond to hecklers, calm patrons and diffuse conflict 5 situations. Moses attempted to continue closing out his show. With Klacik continuing to push and press against him, Moses spoke into his microphone and said to the crowd, "This gentleman thinks this is some pussy music and I should turn it off, (the crowd booed) maybe that's because he ain't gettin' no pussy" (the crowd laughed and applauded). Kiacik`s physical aggression escalated as he pressed and pushed his body against Moses and kept reaching and attempting to take the microphone out of Moses' right hand. Moses was cornered behind his DJ table, because Klacik was blocking the only way in and out from behind the DJ table. (This is akin to a customer coming around and cornering a McDonald's employee behind the counter.) Moses, speaking over the microphone, stated to Klacik, "You got the count of three to back up off me". Klacik then leaned in further on Moses. Moses counted to 3. At the count of 3, Klacik lunged and was within inches of Moses' face. Klacik was leaning on, pushing up against Moses, and attempting to forcefully take the microphone from Moses' hand. Klacik's continued leaning, pushing, touching, and attempts to forcefully take the microphone from Moses' hand was unwelcomed, offensive, and threatening. Moses was forced to defend himself and his equipment from harm due to Klacik's continued aggressive conduct and refusal to leave the restricted area by using his left arm to push Klacik off of and away from his (Moses') body. 6 Moses was able to push Klacik back around to the front of the DJ table while Moses remained behind the DJ table. This created space between them and the DJ table again provided a buffer between Moses and Klacik. Klacik then threw down his beer bottle, clenched his fists, and charged back around the DJ table towards Moses and raised his clenched fist to strike Moses.