IN THE OHIO SUPREME COURT ORIGINAL RODNEY D. ZEUNE ROSS CORRECTIONAL INSTITUTION P.O. BOX 7010 CHILLICOTHE, OHIO 45601 Relator, vs. JUDGE JOHN BENDER FRANKLIN COUNTY COMMON PLEAS COURT 12-074^ 345 SOUTH HIGH STREET COLUMBUS, OHIO 43215 -AND- A. RUD JENNIFER HUNT ASSISTANT PROSECUTING ATTORNEY APR 272w 3737 SOUTH HIGH STREET, 14TH FLOOR COLUMBUS, OHIO 43215 CLERK OF COURT SUPREMECOURT OF OHIO -AND- RUSSELL MOORE DRUG ENFORCEMENT AGENCY VED 500 SOUTH FRONT STREET, SUITE 750 COLUMBUS, OHIO 43215 APR 2 7 20°Z -AND- CLERK OF COURT SUPREME CUUR1 OF 0H10 JANEY CARROLL DRUG ENFORCEMENT AGENCY 500 SOUTH FRONT STREET, SUITE 750 MANDAMUS TO COMPEL COLUMBUS, OHIO 43215 RESPONDENT(S) TO COMPY -AND- WITH DISCOVERY RULES PURSUANT TO C.R. 16, MATT DAILY DISCLOSE WILLFULLY WITH- MOUNT VERNON POLICE DEPARTMENT HELD EVIDENCE AND CARRY 5 NORTH GAY STREET OUT THEIR CLEAR LEGAL MOUNT VERNON, OHIO 43050 DUTIES. Respondant(s). Here come Relator, Pro Se, bringing a Mandamus to this Honorable Court. The above Respondent(s) failed to comply with discovery rules by willfully withholding evidence, thus, failing to carry out their clear legal duty. Relator's claims of Respondent(s) Brady violations, tamper- ing with evidence, discovery rule violations, using a sham legal process, perjury and obstruction of justice are outlined and supported in the following Memorandum and Affidavit. Respectfully submitted, --TodnV H Z ne Ross Correc ional Institution P.O. Box 7010 Chillicothe, Ohio 35601 2 MEMORANDUM IN SUPPORT In this Memorandum and following Affidavit, Relator outlines his request of this Honorable Court to grant a proceeding in Mandamus against the named Respondent(s). In the attached Affidavit, Relator gives statement of facts showing cause for his Mandamus. Respondent(s) Brady violations, tampering with evidence, discovery rule violations, the use of a sham legal process, perjury and obstruction of justice could not be more clear. The State withheld exculpatory evidence, thus, violating Relators due process rights protected under the Fifth and Four- teenth Amendments to the United States Constitution, and Section 10 and 16, Article I of the Ohio Constitution. Under Brady v. Maryland (19630, 373 U.S. 83, 87, "the suppression by the prosec- ution of evidence favorable to an accused upon request violated due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or the bad faith of the prosecution." The Brady doctrine has subsequently been extended by this Court, and "the individual prosecutor has a duty to learn of any favorable evidence to the other acting on the government's behalf in the case, including the police." Kyles v. Whitley ( 1995), 514 U.S. 419, 437. In addition, this doctrine applies whether there has been a specific request, a >general request, or no request by the defendant for exculpatory evidence. United States v. Bagley ( 1985), 473 U.S. 667, 683. Trial testimony established that police and prosecution purposely and willfully withheld a key photograph, several audio record- ings, a video recording, confidential informant information, and investigation material. The record reflects that witness and police statements were not made available. 4 Misconduct of a prosecution attorney is grounds for a new trial if it materially affects the substantial rights of the accused. C.R. 33(A)(2), R.C. §2945.79(B). A prosecuting attorney may;jly- the suppression of evidence, or similar acts, be guilty of such conduct as to afford grounds for a new trial. U.S. v. Stifel, 594, F. Supp. 1525 (N.D. Ohio 1984). The prosecution, as an agent of the State, has a consitut- ional duty to assure the defendant a fair trial, which entails the obligation: (1) to refrain from knowingly using perjured testimony, (2) to disclose certain evidence favorable to the accused, and (3) to correct testimony known to be false. OJ 3d § 343. As the Affidavit states, the State withheld evidence, allowed perjured testimony, and did not correct testimony known to be false. Furthermore, a prosecutor may be guilty of misconduct warr- antinga new trial by engaging in "trial by ambush" tactics in misleading a defendant into believing that evidence in his or her possession that is, in fact, inculpatory is actually exculpatory, causing the defendant to elicit the evidence to his or her detriment. State v. Wilson, 30 Ohio St. 3d 99 , 507 N.E. 2d 1109 (1987). On the first day of trial, the State elected to apply the complicity theory. However, Relator was indicted as the principle offender. Relator agrees the States election to use the complicity theory was appropriate. Although, for the State to withhold evidence that would have aided in Relators defense, whether it be a.: defense against complicity or an affirmative defense, created a "trial by ambush". As to why defense counsel, Robert Krapenc, atdXncrt-^ [- ",_; 5 these tactics is stated in the following Affidavit. Relator has made several attempts to obtain the withheld evidence. On July 5, 2011, Relator filed a Post Conviction Petit- ion requesting the evidence. The trial court had an obligation to demand prosecution to turn over the withheld evidence as soon as he learned of the discovery violation. At the very least, the trial court should have held the requested evidentiary hear- ing or demanded the evidence to be turn over to Relator. Relator has also made additional Motions demanding the evidence. Law enforcement, the trial court and the prosecution are still refus- ing to disclose the withheld evidence. Wherefore, Relator request that this Honorable Court to move for a Proceeding In Mandamus against Respondent(s). Respectfully submitted, ney Tx:''Zeunh, 625-137 Ross Correctional Institution P.O. Box 7010 Chillicothe, Ohio 45601 CERTIFICATE OF SERVICE Relator hereby certifies that he sent a copy of this Mandamus to Respondent(s), to the address listed in this com- plaint, on this day of March, 2012. Respectfully submitted, 6 IN THE OHIO SUPREME COURT 2012 RODNEY D. ZEUNE Relator, vs. JUDGE JOHN BENDER JENNIFER, HUNT RUSSELL MOORE JANEY CARROLL MATT DAILY Respondent(s). AFFIDAVIT OF RODNEY D. ZEUNE ROSS COUNTY ) STATE OF OHIO) I, Rodney D. Zeune, being first duly sworn according to law, state the following: 1. I was indicted for drug trafficking in August 2009. I retained Robert Krapence as my counsel. 2. On September 29, 2009, Mr. Krapenc filed a request for dis- covery pursuant to C.R. 16 of the Ohio Rules of Criminal Pro- cedures. 3. On August 3, 2010, I went to trial in Case No. 09CR4919. During trial, it was discovered that police and prosecution purposely and willfully withheld at least one photograph, several audio recordings, a video recording, witness statements, invest- igation reports and surveillanceland police reports. 4. Mr. Krapenc did not request the above evidence, a continuance to obtain discovery or a mistrial. 5. All along, an entrapment defense was present. The recorded conversations would establish that I was enticed by $4,500 that was owed to me by Mr. Musleh for an equipment purchase. Mr. Musleh showed up at the Westerville Police Department with this same $4,500, thus, demonstrating his attejtpt to use a form of entrapment by enticing me with money. 6. When the prosecution let the photograph slip into testimony, she request a minute to regroup. Ms. Hunt then asked to approach the bench, and after a lengthy discussion, the proceedingswere moved to Judge Bendere's chambers. After a three hour interrup- tion, Mr. Krapenc returned enraged. Mr. Krapenc claimed: (1) the judge was mad at him for his defense, ( 2) the judge was going to tailor the jury instructions specifically for my case, of which he did not agree with the judges decision, however, Mr. Krapenc said he was not going to argue or disagree with 7 Judge Bender because he was the judge's campaign manager. Mr. Krapence stated, "he did not want to rock the boat", (3) told me to take a plea and Mr. Krapenc became enraged when I did not surrender to a plea, (4) forget about the evidence and just take the "damn plea", (5) stop asking questions, and (6) if I asked for a mistrial the judge would not grant it because Judge Bender, due to their relationship, would not make a decis- ion that would reflect poorly on him. I informed Mr. Krapenc that I was going to request a mistrial and the calimed the judge would penalize me. Mr. Krapenc stated, "the judge will not seij; me down the river." I did inform the Judge I was misled to trial. 7. Trial transcripts also revealed that Mr. Krapenc and Ms. Hunt were long time friends and Mr. Krapenc was camping partners with Ms. Hunt's husband. So rather than Mr. Krapenc's friend being confronted with discovery rule violations, a mistrial or sanctions, there was no request for a mistrial. A "trial by ambush" was present. 8. The drug dealer, Rayshawn Alexander was not arrested. There is strong evidence that Mr. Alexander was an actual confidential informant; an informant that was not authorized to make the March 5, 2009 sale. In other words, Mr. Alexander was selling drugs behind police's back, thus, conducting an "illegal sale". Police cannot have one of their agents sell to another of their agents in order to entrap a third party in the middle. Not to mention, that street drugs were in the mist of a "controlled buy". 9. Mr. Musleh and police testified that neither of them knew the drug dealer, Mr. Alexander, prior to the March 5, 2009, drug transaction. However, according to testimony, the police had a a photograph of Mr. Alexander immediately after the drug transaction that was shown to Mr.