IIN THE COURT OF APPEALS FIRST APPELLATE DISTRICT JUN 15 2015 HAMILTON COUNTY, OHIO. ERR STATE OF OHIO, + Appeal Nos. C1400684 c140704 Plaintiff-Appeltee, 140717, Trial Nos. B1400110 v. B1400199 — ae ne eee Ernie UOUAUNOLY Defendant-Appellant. DI10555038 Brief of Defendant-Appellant Tracie Hunter David A. Singleton (0074556) R. Scott Croswell, IU Ohio Justice & Policy Center Croswell & Adams Co., LPA 215 East 9 Street, Suite 601 x i Cincinnati, Ohio 45202 Masha chau Phone: (513) 421-1108, ext. 17 eee eee Far ciajeer sabe Cincinnati, Ohio 45202 Phone: (513) 241-5670 Fax: (513) 929-3473 Counsel for Appellant Tracie Hunter Merlyn D, Shiverdecker Carr & Shiverdecker 817 Main Street, Suite 2000 Cincinnati, Ohio 45202 Phone: (513) 651-5651 Fax: (513) 345-5565 Special Prosecutors, State of OhioTABLE OF CONTENTS TABLE OF AUTHORITIES ....c0: 00 iti L sv) ‘T OF THE CAS A. Procedural Posture .. B. Statement of the Facts 1, The Evidence Relating to Count Six a. The State's Witnesses b. The Defense's Witnesses The Verdict on Count $i 3. The Defense's Post-Trial Motions a The Defense’s Motion for a New Trial Based on the Trial Court's Failure To Poll the Jury affer the Verdict Was Published .... b. The Defense's Written Motion for Judgment of Acquittal IL. ASSIGNMENTS OF ERROR AND ARGUMENT .. FIRST ASSIGNMENT OF ERROR: The trial court erred in overruling Judge Hunter's motion for judgment of acquittal 7 AS Standard of Review fcrstsectieiaettucraeeeienisuesiatias B. R.C, 2921.42(A)(I) Does Not Apply to Judge Hunter’s Conduet 1. The Clearest Interpretation of R.C. 2921.42() Does Not Prohibit Judge Hunter's Actions ....... 2. The Rule of Lenity Requires That Any Ambiguity in the Meaning of “Secure the Authorization of Any Public Contract” Must Be Strictly Construed Against the State and Resolved in Favor of Judge Hunter 3. Because the State Has Not Identified the Document or Its Contents, the State Cannot Prove that Judge Hunter “Employ[ed] the Authority or Influence of {Her] Office” To Secure Authorization of Any Public Contract .....0.015 4, The Court Cannot Direct a Guilty Verdict for an Attempt To Violate R.C. 2921.42 Because the Jury Was Not Given a Lesser-Included Offense Instruction ee eee nae SECOND ASSIGNMENT OF ERROR: The trial court erred by refusing to poll the jury at defense counsel's request after the court unsealed the verdict and announced it in open court A. Standard of Review ....sasseese evens B. The Trial Judge Should Have Polled the Jury at Defense Counsel's RequestAfter the Court Unsealed the Verdict and Announced the Result in Open Court ....ccaul7 THIRD ASSIGNMENT OF ERROR: The trial court erred in failing to meaningfully cure the prosecution's pervasive misconduct during its rebuttal closing argument A, Standard of Review ... B. The Prosecutor's Inflammatory Language Was Clearly Prejudicial 0.0.00 The Prosecutor Further Prejudiced Defendant by Relying on Unsworn -stimony see = ai D. The Prosecutor's Absent-Witness Burden-Shifting Added to the Prejudice... E, Allowing the Prosecutor to Interject Personal Opinion Was Plain Error ... F. Letting the Prosecutor Denigrate the Defense Was Also Plain Error .. G. ‘The Prosecutor's Unchecked Reliance on Evidence Outside the Record Further Prejudiced the Defense css decane ae eecteereceeeetiaeeST H. The Court’s Failure To Cure the Errors in Such a Close Case Prejudiced Judge Hunter's Substantial Rights and Likely Changed the Result... IIL, CONCLUSION ......... APPENDIX A-1: Trial Court’s Sentencing Entry 7 : oo Vii APPENDIX A-2: Trial Court’s Denial of Defense's Motion for New Trial and Written Motion for Judgment of Acquittal eae APPENDIX B: Chart Detailing 51 Instances of Prosecutorial Misconduct in Rebuttal Closing cece tee olTABLE OF AUTHORITIES RIRST ASSIGNMENT OF ERROR: The tral cour ered in overruling de Hunter's motion for judgment of acquittal Cases City of Warren ex rel. Bluedorn v. Hicks, 124 Oio App.3d 621, 707 N.F.2d 15 (1th Dist. 1997). wld State v. Creasman, 1st Dist. Hamilton No. C-970730, 1999 Ohio App. LEXIS. 1034 (Mar. 19, 1999) 13 Stare v. Deem, 40 Ohio St3d 205, 333 N.E.2d 294 (1988). 16 State v. Jordan, 34, Dist. Seneca Nos. 13-01-25, 13-01-26, and 13-01-27, 2002-Ohi0-1418 ere ae State v. Jordan, 89 Ohio St. 3d 488, BSN. E2 60. a State v, Straley, 139 Ohio St. 34 339, 11 N.E.3d 1175 ... State v. Thompkins, 78 Ohio St. 34 380, 678 N.E. 2d 541 (1997) ‘State v. Urbin, 100 Ohio St.3d 1207, 2003-Ohio-3549, 797 N.E.2d 985... State v. Urbin, 148 Ohio App.3d 293, 2002-Ohio-3410, 772 N.E.2d 1239 Dist.). State v. Wright, 1st Dist. No. C-080437, 2009-Ohio-5474 ees Walsh v. Bollas, 82 Ohio App.3d 588, 612 N.E.2d 1252 (Ith Dist. 1992) .onrnoennvonnald 15 1, 14-15 10 14 Rules RC. 1.42 R.C. 2901.04(A) RC. 2921.42 passim Other Authorities Black's Law Dictionary (10th ed.2014).... fa dea aatoaen lag Merriam-Webster Ohio Ethics Comm'n Op. No. Sutherland, Statutes and Statutory Construction, (7th ed.2014) SECOND ASSIGNMENT OF ERROR: The trial court erred by refusing to poll the jury at defense counsel’s request after the court unsealed the verdict and announced it in open court... Cases City af Dayton . Allen, 94 Ohio L-Abs, 128,200 N.E.24 386,358 (Montgomery CP. 1959) Miranda v, United States, 255 F.2d 9, 17-18 (Ist Cit. 1958) Rose v. State, 20 Ohio 31, 33-34 (1851) State v. Boger, 202 N.C. 702, 702, 163 S. 20-21 77, 871-78 (1932)... iiiState v. Bradley, 8th Dist. Cuyahoga No. 79354, 2002-Ohio-3895.. ‘ State v. Brown, 110 Ohio App. 57, 61, 168 N-E.2d 419, 422 (9th Dist.1953) .....18, 20-21 State v. Carmack, 61 Ohio App.3d 351, 354, 572 N.E.2d 794 (Ist Dist 198) 18-19 State v. Engle, 13 Ohio 490, 494 (1844). sane 8 State v. Green, 67 Ohio App.3d 72, 77, 585 N.E.2d 990 (8th Dist-1990) 120 State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528 17 State v. Pare, 253 Conn, 611, 755 A.2d 180, 186 (2000) ... 7 State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27 : passim United States v, Taylor, 507 F.2d 166, 167-69 (Sth Cir. 1975) eee 18 United States v, White, 972. F.2d 590, 595 (Sth Cir. 1992) .... 18 Weir v, Luz, 137 N.J.L. 361, 58 A.2d 550 (1948) teen eee eae Statutes Fourteenth Amendment to the U.S. Constitution 20 Ohio Constitution, Article 1, Section 10 ec20 RC. 2945.77 wT Rules Crim.R. 31(D) .. Crim. 33(A\(1) .. Other Authorities Wigmore, Evidence (McNaughton Rev.1961) 18 THIRD ASSIGNMENT OF ERROR: The trial court erred in failing to meaningfully cure the prosecution's pervasive misconduct during its rebuttal closing argument Cases Bates v. Bell, 402 F.3d 635 (6th Cir. 2005) son. Berger v. United States, 295 U.S. 78, 55 $.Ct. 629, 89 L.Ed. 1314 0535. Fryson v. State, 17 Mid. App. 320, 301 A.2d 211 (1973) : Snipes v, United States, 230 F.2d 165 (6th Cir.1956) .... ‘State v, Caldwell, 79 Ohio App. 3d 667, 607 N.E.2d 1096 (4th Dist.1992) . State v. Champion, 109 Ohio St. 281, 142 N.E, 141 (1924) State v. Davis, 60 Ohio App.2d 355, 397 N.E.2d 1215 (Sth Dist. 1978) ie State v. Draughn, 76 Ohio App.3d 664, 602 N.E.2d 790 (1992) sw ‘State v. Freeman, 138 Ohio App.3d 408, 741 N.E.2d 566 (Ist Dist.2000) State v. Hart, 94 Ohio App.3d 665, 641 N.E.2d 755 (Ist Dist.1994) ... State v. Keenan, 66 Ohio St.3d 402, 613 N.E.2d 203 (1993) State v. Lane, 49 Ohio St.2d 77, 358 N-E.2d 1081 (1976) .......... State v. Liberatore, 69 Ohio St. 24 $83, 433 N.E.2d 561 (1982) sn State v. Long, 53 Ohio St.2d 91, 7 0.0.34 178, 372 N.E.2d 804 (1978). State v. Madrigal, 81 Ohio St.3d 378, 721 N.E.24 52, 70 (2000) nu State v. Shutts, 723 S.W.2d 594 (Mo.App.1987) .... ivState v. Smith, 14 Ohio St. 3d 13, 470 N.E.2d 883, 885 (1984) soso ‘State v, Smith, 84 Ohio App.3d 647, 617 N.E.2d 1160, (2d Dist.1992) ‘State v. Smith, 87 Ohio St.3d 424, 721 N.E.2d 93 (2000) State v. Stephens, 24 Ohio St. 2d 76, 263 N.E.2d 773 (1970) State v, Williams, 99 Ohio St. 3d 439, 2003-Ohio-4164, 793 N.E.2d 446 State v, Wise, No, C-780257, 1979 WL 208707 (Ist Dist.1979) ae. State v. Young, No. B-832363, 1986 WL 5503 (Ist Dist.1986) United States v. Blakemore, 489 F.2d 193 (6th Cir. 1973) United States v. Francis, 170 F.3d 546 (6th Cir.1999) United States v. Garcia-Guizar, 160 F.3d 511 (9th Cir.1998) United States v. Maddox, 156 F.3d 1280 (D.C. Cir.1998) United States v. Morris, 68 F.24 396 (Sth Cir.1978) .. United States v. Rudberg, 122 F.3d 1199 (th Cir.1997) United States v. Weatherspoon, 410 F.3d 1142 (9th Cir.2005) « United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 1045, 84 L.Ed. 2d 1 (1985) Rules Crim.R. $2(B) Other Authorities Gershman, Prosecutorial Misconduct (24 ed,2014).. Lawless, Proseeutorial Misconduct (4th ed.2008) . 22, 25, 27,29 24 v1 STATEMENT OF THE CASE A. Procedural Posture The grand jury indicted Judge Tracie M. Hunter on nine counts alleging various offenses.' Trial began on September 8, 2014? and concluded on October 14, 2014. The jury convicted Judge Hunter of Having Unlawful Interest in a Public Contract as charged in Count Six of the indictment.* Judge Hunter filed a motion for a new trial based on the trial judge's failure to poll the jury after the verdict was announced in open court.’ After trial, Judge Hunter also renewed in writing the Rule 29 oral motions for judgment of acquittal she made during trial. In a single order, the trial judge denied both the motion for a new trial and the written Rule 29 motion.” On December 2, he sentenced Judge Hunter to six months in jail. Judge Hunter timely appealed.” B. Statement of the Facts ‘The state sought to paint Judge Hunter as a woman who had “conflict with virtually everyone that she came into contact while serving as a judge,” who deployed “scorched earth” tactics against people with whom she disagreed, and who did not follow the law.'® The defense countered that the charges against Judge Hunter, “a woman of faith” and “an advocate [for] and 'T4.2. 2 Tp, 260 (Vol. 11 of 37, Monday, Sept. 8, 2014) (commencement of voir dir). 2 Tp. dOTI (Vol. 35 of 37, Tuesday, Oct. 14, 2014) (discharge of jury). $ fd. at 4007 (announcement of guilty verdict on Count Si) ST, 275, ‘The defense also filed a motion for a new trial based on juror misconduct, T.d. 287. The tral judge denied that motion, T.d. 293, and the defense appealed. T.d, 295, The trial judge's denial ofthe defense motion for 4 new trial based on juror misconduct will not be raised as an assignment of error in these consolidated appeals, ° 14.277 "7, 288, "Tp, 4248-49 (Vol. 37 of 37, Friday, Dec. 5, 2014). On December 26, 2014, the Ohio Supreme Court stayed Judge Hunter's jail sentence, which she was to begin serving on December 29, 2014, pending appeal. The trial court's sentencing entry is attached as Appendix A-1 ° The Transcript of the Docket and Joumal Entries does not con should be listed as number 298, "7p, 793 (Vol. 13 of 37) (opening statement of special prosecutor). a record number for the notice of appeal. Itprotector of children,"! were “politically motivated, . . . unfair, wrong and unfounded, [and] not supported by the evidence to the level of proof beyond a reasonable doubt.” The trial occurred under the intense glare of the media spotlight—a “circus atmosphere, as one of the special prosecutors called it."" The case was hotly contested, as the trial judge observed." Within this context, State ¥. Tracie Hunter unfolded over five weeks. Although the state charged Judge Hunter with nine criminal offenses, it only obtained a conviction on Count Six: Having Unlawful Interest in a Public Contract. ‘The jury deadlocked on the other eight charges. 1, The Evidence Relating to Count Six a. The State's Witnesses Count Six of the indictment charged Judge Hunter with Having an Unlawful Interest in a Public Contract.'® The state's theory of prosecution for that count was that Judge Hunter used the power of her office to help her brother Stephen Hunter fend off termination from his position as a juvenile correctional officer.'” (Despite the implication of the state’s theory, Stephen was, in fact, successfully terminated.'’) The state alleged that Judge Hunter did so by using her office to obtain certain documents that she then gave to her brother before his hearing, documents it claimed he was not entitled to receive in advance of the hearing.'* The state called three witnesses to testify with respect to Count Six: Dwayne Bowman, Brian Bell and Stephen Hunter." " Tp. 866 (opening of defense counsel). I a $65. ® Tp. 319 (Vol. 11 of 37 (Part 2)) (statement in voir dire by special prosecutor). Tp, 4009 (Vol. 35 of 37, Tuesday, Oct. 14, 2014) (noting “{a} lot of hot tempers and everything else”), 814.2, ‘Tp, 834-42 (Vol. 13 of 37, Wednesday, Sept. 10, 2014) (portion of prosecution opening statement). The transcript of proceedings incorrectly spells Mr. Hunter’s name as “Steven, "7p. 2173 (Vol. 21 of 37, Tuesday, Sept. 23, 2014), 3167 (Vol. 28 of 37, Thursday, Oct. 2, 2014), Tp. 834-42 (Vol. 13 of 37, Wednesday, Sept. 10, 2014) (portion of prosecution opening, statement). '® Earlier in the case, the state called prosecutor James Harper. Among other things, Harper testified that a document entitled “A Guide for Hamilton County Government Employees,” which was admitted as State's exhi 2Bowman, who serves as the superintendent of the Hamilton County Youth Detention Cenicr (“Detention Center”),2" testified that Stephen, while employed at the Detention Center, “struck one of the . . . youths in the intake department.”"' As a result of the recommended terminating Stephen from employment as a juvenile correctional officer. Bowman testified that Stephen’s termination hearing was scheduled for August 1, 2013.) On July 29, 2013, Judge Hunter emailed Bowman requesting copies of documents relating to the youth her brother Stephen had struck. Judge Hunter requested all incident reports involving the particular youth and reports of positive drug tests taken by the youth, including medical reports containing positive drug tests.”> Bowman testified that Judge Hunter's 18 request “concerned” him because of the apparent a “conflict of interes Nevertheless, Bowman testified that he delivered the documents to Judge Hunter on July 30, 2013.27 Bowman told the jury that a Detention Center employee facing termination would receive a discovery packet, which included the incident report, the youth's report, other witness statements, and “the policies relating to the infraction itself.”* According to Bowman, the employee would not receive drug-test results or medical reports for the assaulted youth,” nor 28, at wal, prohibits @ public official from using his position to interfere with the terminating of a family member from employment. T.p. 1127-29 (Vol. 15 of 37, Friday, Sept. 12, 2014) (estimony of James Harper). As will be discussed later in tis brief, R.C. 2921 42(A)(1), the statute upon which Count Six is based, does not specifically gota public cia fom the condut hese cnimed Judge Hunter commited under Count Six 2p. 2131 (Vol. 21 of 37, Twedday, Sept. 23,2014 estoy of Dwayne Bowen) ® fd. at 2136. % Jd. As defense witness Attomey Trotter, who represented Stephen Hunter, made clear, the August | hearing was gctually an appeal, fat 3167. yd at 2142-43. id at 2143-44 ® fd at 2150. dat 2153. The prosecution also sought ro draw an inference, through Bowman's testimony, that an email Judge Hunter sent about a meeting to discuss employee safety, T-p. 2137-39, manifested a desire to interfere with Stephen's termination process, T-p. 2141-42. On cross-examination, however, Bowman admitted thatthe email indicated the meeting had been set in motion before the incident leading to Stephen’s termination. T.p. 2179-80. % id. at 2145. ® dat 2147-48.would he receive incident reports involving the youth and other juvenile correctional officers.” Brian Bell, the assistant superintendent at the Detention Center,” clarified for the jury that employees facing termination receive the discovery packet on the day of the hearing.” He also explained that termination hearings are routinely rescheduled to allow the employee or his counsel to prepare based on the discovery provided.” Bell attended Stephen Hunter’s termination hearing. Though Bell expected that the hearing would be continued after Mr. Hunter's lawyer received the discovery packet, the hearing went forward as planned.”> Bell described the hearing as “quite lengthy” and stated that it lasted “six to seven hours.”* Bell acknowledged on cross-examination that he did not know what documents Mr. Hunter’s lawyer had before the hearing.” Stephen Hunter told the jury that the night before his hearing, he met Janaya Trotter, his lawyer, at a gas station to pay her retainer.* Stephen also testified that he had documents with him, which he had obtained from Judge Hunter.” Stephen stated that he gave those documents to Trotter.” Stephen never told the jury what documents his sister had given him, and the special prosecutors never asked him to describe the documents.“ b. The Defense's Witnesses Attomey Trotter testified for the defense. Trotter, who knew Stephen from high 2 fd an 2148, 214d. at 2332 (testimony of Brian Bell). Id, at 2339, 3 id 36 2340, % fda 2341 id 1d 2 td a 2350-51 3 T.p, 2529 (Vol. 22 of 37, Wednesday, Sept. 24, 2014) (testimony of Stephen Hunter). » Id. at 2330. a "See id. at 2326-31school,” agreed to represent him when he contacted her for help with his termination hearing.? Trotter testified that Judge Hunter did not contact her about representing Stephen and did not help with the representation. ‘Trotter met with Stephen the night before the hearing so that he could pay her. During the meeting, Stephen gave Trotter some documents, three of which she took,"® and at least one which she declined."” Trotter told the jury that the documents she obtained from Stephen were ones that he received on the day he leamed of his termination.* Trotter declined at least one document because she “didn’t want to be really involved in anything unethical . . . and was going to look at the [discovery] documents the next morning.” Trotter never testified at trial that she believed Judge Hunter had given Stephen the document(s) Trotter refused to take, and the prosecution never asked Trotter whether she so believed.*° When asked on cross-examination whether she believed she would have to report to the Ohio Supreme Court the person who gave Stephen the document, Trotter answered: “I don’t remember if it was going to trigger an ethical obligation to the Supreme Court or if it was just something that I felt like I should not do because I had already made arrangements to get what I needed [for the hearing].”*' Trotter never Tp, 3156 (Vol, 28 of 37, Thursday, Oct. 2, 2014) (testimony of lanaya Trotter). a id. at 3155-56, fd, 3161. "Fat 3162, 3171 "Jd. at 3171. In response to prosecution’s first question on the topic, Trotter stated that she “rejected the document.” id. (emphasis added). In response to later questions about “dacumenis” she adopted (oF did not correct) the plural form. See, e.g., id, at 3174~77. It is thus unclear from the testimony whether Trotter refused one or more than one document from Stephen Hunter. 8 fat 3162-63, 3173. 2 id a3i71 © See id at 3151-3193 (no mention by Trotter of who she believed had given Stephen the document she refused to take; no request by prosecution for Trotter to identify that person). Trotter di testify that at some point “Stephen started reaching out toa juvenile who he knew” to obtain documents, but that she was “not sure what documents he obtained.” T.p. at 3186. She also testified that she believed the television station WCPO to have “received documents tha [she] was not able to receive in representing [Stephen]” prior tothe day of the hearing, T.p. 3189, Sd at 3174.identified the document she refused to take, and the prosecution never asked her to do so.” In sum, no witness identified the document(s) that Judge Hunter gave Stephen, which he offered Trotter. While Bowman says he gave Judge Hunter drug-test results and other documents Stephen was not entitled to receive,” there was no testimony that Judge Hunter gave those to Stephen, And while Trotter declined some document(s) from Stephen, she never identified the document(s) she declined, and made clear that she may have declined them because she “had already made arrangements 0 get what [she] needed prior to that." 2. The Verdict on Count Six The jury deliberated from the afternoon of Wednesday, October 8, 2015,% through the afternoon of Friday, October 10. On October 10 at 3:58 p.m., the jury entered the courtroom and informed the court that it had reached a verdict on Count Six of the indictment.” Without announcing what the verdict was, the court purported to poll the jury by asking each juror if the ‘ue verdict.”"* After all jurors answered “yes,” the trial judge said: “We verdict was his or her “ are not indicating what the verdict is, but this verdict will be entered. And I’m going to hand this verdict to the court reporter . . . and I'm going to ask him if he would seal the verdict." After acknowledging that the jury was “having difficulty in reaching verdicts on the remaining counts," the trial judge gave the jurors an anti-deadlock charge,®! and instructed the jurors to 2 See id. at 3151-3193 (no identification of document Trotter refused; no questions about identity of the document) 2 Tp. 2153 (Vol. 21 of 37, Tuesday, Sept. 23, 2014) (testimony of Dwayne Bowman). S Tp. 3174 (Vol. 28 of 37, Thursday, Oct. 2, 2014) (testimony of Janaya Troter). 8 Tp, 3974-75 (Vol. 32 of 37, Wednesday, Oct. 8, 2014) (commencement of deliberations) © T.p. 3982-3988 (Vol. 33 of 37, Thursday, Oct. 9, 2014) (jury deliberates without decision); Tp. 3993 (Vol. 33 of 37, Friday, Oct. 10, 2014) (jury informs court that it has reached a verdict on Count Six). Tp, 3993, fd Presumably reading from standard instruction, the court asked he jury about “the verdict us read" though the verdict had not, in fact, been rea. 2 Fd, at 3994-95. © 1d at 3995, © Fd. ac 3993-97resume their deliberations when court reconvened after the holiday weekend. The jury deliberated for a few hours on October 14 before indicating that it could not reach a verdict on the remaining eight counts." After confirming that additional deliberation would be fruitless,” the court unsealed the verdict on Count Six and announced publicly that the jury had found Judge Hunter guilty of Having Unlawful Interest in a Public Contract.°* ‘Subsequently, the defense counsel engaged in the following exchange with the court: MR. BENNETT: I would like to poll the jury. THE COURT: The jury has already been polled, They were previously polled and that's it. They were polled. They were polled. MR. BENNETT: | thought until the verdict was published. THE COURT: They were polled and they were asked whether Count 6 was their true verdict and they indieated yes and so it’s over. I indicated that." ‘The trial judge then discharged the jury.” 3. The Defense’s Post-Trial Motions a. The Defense's Motion for New Trial Based on the Trial Court's Failure To Poll the Jury after the Verdiet Was Published Following the verdict, the defense moved for a new trial based on the trial courts failure to conduct the poll the defense requested aficr the clerk read the verdict in open court.* The defense cited State v. Williams,” an Ohio Supreme Court case, for the proposition that a verdict is final only when “(1) the deliberations are over, (2) the result is announced in open court, and © 1d, a 3999, Tp. 4008. & ie, at 4006, 5 Fd at 4007, © td a 4011. 1d Td, 275, 99 Ohio St.34 493, 2003-Ohio-4396, 794 N.E.2¢ 27, cited at T.d. 275 at 5. 7iissent is registered.”” The defense attached to its motion the (3) the jury is polled and no affidavits of two jurors who indicated that, had the court polled them afier unsealing the verdict and announcing it on October 14, they would have indicated that “guilty” was not their true verdict.” Later, the defense filed an affidavit from a third juror who stated she would have repudiated the verdict had the court polled her when the verdict was unsealed and published.” At the hearing on the new trial motion, defense counsel began by discussing the finality of verdicts as set forth by the Ohio Supreme Court in Williams: And the law in Ohio is crystal clear, Your Honor. A juror can change theit mind up until the time the verdiet is final. So the basic question as a matter of law in the State of Ohio [is---]when is a verdict final? A verdict is final when three things happen: A verdict is final when, first of all, the jury declares that they are done deliberating, number 1. Number 2, it's critical with respect fo this case, The second thing that must happen is there must be an announcement of what the verdict is. Not [that] there is a verdict or not that a verdict as (sic) been reached ot not {that} a verdict has been determined, but there has to be an announcement of what the verdict is. And if verdict is reached it must be announced, guilty or not guilty,” During its brief argument, the state belittled defense counsel and Judge Hunter and further personalized the litigation, contending: “It sounds to me from [defense counsel's} argument that he and the defendant are the only two people in this courtroom that know anything. He has accused you of screwing this case up.” The special prosecutor then discussed case law that sanctioned the sealing of partial verdicts.” But at no time during argument did the special prosecutor address the defense’s core argument: that State v. Williams controls when a > wilams 0 4 7 -T.d_ 275 (attaching Affidavits of Rakesha Holmes and William Smith. ® Tg. 285 (Affidavit of Kimberly Whitehead). ™ Tp. 4020 (Vol. 36 of 37, Thursday, Nov. 13, 2014). 7 Id at 4087, 7 Id. at 4058.verdict becomes final under Ohio law, and that finality requires publication of the verdict.” Instead, the prosecutor disparaged the defense as making a “frivolous, baseless argument.” sued a written After taking the arguments of both counsel under advisement,” the court decision denying the defense motion for a new trial based on the court's failure to poll the jury after the clerk published the verdict.” In his two-paragraph ruling, the trial judge wrote: “1. Once a Jury has retumed a verdict and that Jury has been polled, a juror may not later rescind the verdict. 2. To rule otherwise would cause chaos by jeopardizing the integrity of jury deliberations and the finality of jury verdicts." Nowhere in his ruling did the trial judge address defense counsel’s argument that, under Ohio law, a verdict is not final until the parties have had the opportunity to poll the jury and each juror assents to the verdict affer the verdict is read in open court. Nowhere in his ruling did the trial judge discuss Williams. b. The Defense's Written Motion for Judgment of Acquittal After the prosecution rested its case, and again at the conclusion of all of the evidence, the defense moved orally for judgment of acquittal under Ohio Criminal Rule 29! The defense also filed a written post-trial motion for judgment of acquittal. With respect to Count Six, the defense argued in its written motion that “interfering with a termination proceeding”—which is what the state contended Judge Hunter had done to violate R.C. 2921.42(A) as charged in Count ‘Six “as a matter of law, does not constitute ‘securing a public contract.’""* The defense argued jon of a contract for the purchase or that “public contract” is defined as the purchase or acqu % jd. at 4087-62. "Id a 4062. * fd. a 4072. Td, 288 © Jd. The trial judge’s denial ofthe defense's motion for new trial is attached at Appendix A-2. "Tp, 2417-49, 2466-70 (Vol. 23 of 37, Thursday, Sept. 25, 2014); T-p. 3472-15 (Vol. 30 of 37, Monday, Oct. 6, 2014) Pid ailacquisition of property or services” under R.C. 2921.42(1)(1)(a)." Thus, the defense contended, “[t]here is absolutely no way any trier of fact could conclude that any evidence presented at the trial of case could be construed as sufficient to constitute Judge Hunter purchasing or acquiring property or services for her brother or anyone else.”*° The defense also argued that even if the statute prohibited interference with a termination hearing, there was insufficient evidence that Judge Hunter had done so."* Specifically, the defense contended that because no witness ever identified the document Judge Hunter gave her brother, it was impossible for the jury “to conclude that she improperly used her authority as a judge or the influence of her office to acquire it, a required element of the offense.”"” The trial judge, however, denied Judge Hunter's written motion for judgment of acquittal in a one sentence ruling: “There is sufficient evidence to sustain a conviction on [Count Six].”** Ih ASSIGNMENTS OF ERROR AND ARGUMENT FIRST ASSIGNMENT OF ERROR The trial court ered in overruling Judge Hunter’s motion for judgment of acquittal. Issue Presented for Review R.C. 2921.42(A)(1) does not apply to the conduct the state alleged Judge Hunter committed as charged in Count Six of the indictment: interfering with her brother’s termination hearing, A. Standard of Review Whether a trial court should have granted a Rule 29 motion for judgment of acquittal is a id. at I-12. id at 12. "Id. at 10. "id atl © 7T.4, 288, The trial judge's denial of the defense’s written motion for judgment of acquittal is attached at Appendix A-2. 10question of law reviewed de novo on appeal.*” For an appellate court to reverse a conviction based on insufficient evidence, it must conclude, “after viewing the evidence in the light most favorable to the state, that no rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt."*” Additionally, the interpretation of a statute is a matter of law, and as such is reviewed de novo.”' “Words and phrases shall be read in context and construed according to the rules of grammar and common usage,” and “sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.”** B. R.C. 2921.42(A)(1) Does Not Apply To Judge Hunter's Conduct. At the close of the state’s case, defense counsel argued, with respect to Count Six, that the state had to prove “either Judge Hunter was trying to buy or acquire employment for [her brother] or that she tried to get a contract for the purchase or the acquisition of employment for [himn],”™ and that “[e]ven if she did interfere with an investigation, it does not constitute securing an employment contract” within the meaning of the statute.* The defense’s interpretation of the statute is correct. Thus, the trial judge erred in overruling Judge Hunter's motion for acquittal 1, The Clearest Interpretation of R.C. 2921.42(A) Does Not Prohibit Judge Hunter’s Actions. The state charged Judge Hunter with Having Unlawful Interest in a Public Contract in violation of R.C. 2921.42(A)(1). That section reads as follows: (A) No public official shall knowingly do any of the follow © stare x. Thompkins, 78 Ohio St.3d 380, 386-87, 678 N.E. 24 541(1997) State v, Wright, Ist Dist, Hamilton No. C-080437, 2009-Ohio-5474, 26 (citing State v. Jenks, 61 Ohio St3d 259, $74.N.6.24 492 (1991), paragraph two ofthe syllabus). State v. Straey, 139 Ohio St. 3d 339, 2014-Ohio-2139, 11 N.E34 1175, $9. id ® RC. 2901.04(A). pp. 2432-33 9% fd at 2433. u(1) Authorize, or employ the authority or influence of the public official's office to secure authorization of any public contract in which the public official, a member of the public official's family, or any of the public official’s business associates has an interest; (D As used in this section: (1) “Public contract” means any of the following: (a) The purchase or acquisition, or a contract for the purchase or acquisition, of property or services by or for the use of the state, any of its political subdivisions, or any agency or instrumentality of either, including the employment of an individual by the state, any of its political subdivisions, or any agency or instrumentality of either;** The phrase “secure authorization” has no “technical or particular meaning” in Ohio law.” [S]ecure authorization,” accordingly, “[must] be read in context and construed according to the tules of grammar and common usage." “Secure,” as a transitive verb, has the following relevant definitions: (1)(@): to relieve from exposure to danger : act to make safe against adverse contingencies (b): to put beyond hazard of losing or of not receiving : guarantee G)G@): to get secure usually lasting possession or control of (b): Bring about, effect Authorization is “official permission to do something.”" Meanwhile, “acquire”—used in the definition of “public contract,” discussed above—is defined as: “1: To gain % RC 2921.4A}(1) 7 See RC.1.42. id Merriam-Webster, secute, http:/vww.merriam-webster.com/dictionary/secure (accessed June 14, 2015). "© Black's Lene Dictionary, authorization (10th Ed.2014), 12possession or control of; to get or obtain.” A basic canon of statutory construction is that “each part or section [of a statute] should be construed in connection with every other part or section to produce a harmonious whole.”!" Because the General Assembly has defined “public contract” as a purchase or acquisition, the only meaning of “secure” that makes sense with the phrase “authorization of any public contract” is “to get.” The state's position that the statute prohibits holding onto what was already gained is inconsistent with the concept of acquiring—getting or obta ing—something. Under the state’s construction, “secure authorization of any public contract” means: “to keep from losing the permission to acquire an individual's employment by the State.” This definition is illogical: it ies one can lose something one has not previously gained. A more sensible construction would define “secure authorization of any public contract” as: “to obtain permission to acquire an individual’s employment by the State”—that is, “to get permission for the state to hire someone.” The idea that securing a public contract requires an “acquisition” is supported by Ohio case law; indeed, counsel has not found a single case where a public official was convicted under R.C, 2921.42(A)(1) for using his influence to prevent the termination of an employment contract.! Based on the State’s argument in the trial court, Judge Hunter expects the State will seek to undercut her more sensible reading of the statute with Ohio Ethics Commission advisory opinions. Though the Commission has indicated that “the prohibition against a public official authorizing, or securing authorization of, a public contract . . . extends beyond the initial award "1d, acquire. '9° 94 Sutherland, Statutes and Statutory Construction, Section 46.5 (7th F 4.2014). © See, eg, Walsh v, Bollas, 82 Ohio App.34 S88, 612 N.E.2d 1252 (11th Dist. 1992) (hiring a family member Violated the statue in a civil ease); State v. Creasman, Ist Dist. Hamilton No. C-970730, 1999 WL 147809, *2 (Mar. 19, 1999) (directly authorizing a purchase from his wife's company); State v. Urbin, |48 Ohio App 3d 293, 2002-Ohio-3410, 772 N.E.2d 1239, 4 3 (Sth Dist). WHT pat 2459-60,of the public contract and prohibits a public official from participating in any matter or decision that would affect the continuation, implementation, or terms and conditions of the public 10s contract,”"°5 no ethics opinion presents facts similar to this case. Moreover, while courts have used ethics opinions as advisory resources, those opinions do not carry the force of law.'% Thus, construing words according to their ordinary meaning and in context with the statute’s definition of public contract, R.C. 2921.42 requires the state to prove the following elements: that (1) a public official; (2) knowingly authorized or employed the authority of her office; (3) to secure authorization for a public contract (i.e., in this context, acquisition of employment with the State); (4) in which a member of the official's family has an interest, Here, the state failed to prove that Judge Hunter “secured the authorization of any public contract,” as defined by the statute. At the e Judge Hunter took the bench, her brother Stephen was already employed as a juvenile correctional officer.'” Thus, there is no way Judge Hunter could have used the influence of her public office to secure authorization (that is, acquire employment) for her brother because she had yet to assume public office when he began work as a juvenile correctional officer. Because Judge Hunter was not involved in Stephen’s initial hiring, the state failed, as a matter of law, to prove that she violated R.C. 2921.42(A)(1). 2. The Rule of Lenity Requires that Any Ambiguity in the Meaning of “Secure the Authorization of Any Public Contract” Must Be Strictly Construed Against the State and Resolved in Favor of Judge Hunter. When construing a statute, an appellate court's “main objective is to determine and give 108 effect to the legislative intent.""% If the language of the statute is “clear and unambiguous, "5 2001 Ohio Ethies Comm’n Op. No. 2001-02. " See Sate v. Urbin, 100 Ohio St3¢ 1207, 2003-Ohio-5549, 797 N.E2d 985, 4 13 (Moyer, C.J. concurtt White they are not binding on the courts, these opinions are entitled to weight by the cours, and Ohio courts have found commission opinions useful in applying and interpreting the law."); City of Warren ex rel. Bluedorn v. Hicks, 124 Ohio App.3d 621, 628, 707 N.E.2d 15 (Ith Dist, 1997). Tp, 2160, 1% Seraley, 139 Ohio S1.34 339, 2014-Ohio-2139, 11 N.E.3d 1175, at 19, 4[courts] must apply it as written. It is the duty of this court to give effect to the words used, not to delete words used or to insert words not used.”'” Moreover, as the Ohio Supreme Court has explained, “where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant."'"° This principle, known as the rule of lenity, “provides that sections of the Revised Code that define offenses or penalties ‘shall be strictly construed against the state, and liberally construed in favor of the accused.” Under the rule, ambiguity in a criminal statute is construed strictly so as to apply the statute only to conduct that is clearly proscribed." There is ambiguity whenever “the language is susceptible of more than one reasonable interpretation.”"'7 {As stated above, the most sensible interpretation of R.C. 2921.42 bars a public official from using his or her power to obtain employment for a relative. However, the statute does not “clearly proscribe” using influence to obtain documents which a third party uses to unsuccessfully defend against termination from employment (the State's theory of Judge Hunter's conduct). “Purchase” and “ icquisition” reflect legislative intent to keep officials from improper interests in new contracts; they do not manifest intent to preclude obtaining documents to aid in defending an existing contract. In short, because the rule of lenity requires that the statute be narrowly construed and the Judge’s actions do not fall within the legislature's clear intent, the evidence was insufficient as a matter of law to conviet Judge Hunter of Count Six. Because the State Has Not Identified the Alleged Document or Its Contents, the State Cannot Prove that Judge Hunter “Employled] the Authority or Influence of [Her] Office” To Secure Authorization of Any Public Contract. inference upon inference to reach a guilty verdict"? Without the A jury may not sta ig 107 8 fd See also R.C. 2901.04(A), 5 State v, Jordan, 89 Ohio St. 3d 488, 733 N.E.2d 60. "Stave v. Jordan, 34, Dist. Seneca Nos. 13-01-25, 13-01-26, and 13-01-27, 2002-Ohio-1418, 42-3. 15inference that the document was relevant, helpful, and unavailable to her brother, the jury's inference that Judge Hunter used her office to secure authorization of the contract is baseless ‘The state did not produce the alleged document or evidence of its contents. Without this evidence, the jury could not have concluded beyond a reasonable doubt that Judge Hunter “employed the authority or influence of [her] office” to obtain the document. For example, if the document was a public record, or was not obtained via Judge Hunter's authority or influence, then there is no basis for the conviction, Furthermore, without evidence of the document's contents, the jury could not have known whether the document “secured authorization” of her brother's employment contract. Moreover, if the document was a public record or irrelevant to the determination of his appeal, then Judge Hunter could not have used the authority of her office to interfere with the termination proceeding—assuming for argument’s sake, that the document’s, use in the termination proceeding constituted “securing a public contract.”""4 4, The Court Cannot Direct a Guilty Verdict for an Attempt To Violate R.C, 2921.42 Because the Jury Was Not Given a Lesser-Included Offense Instruction. Judge Hunter further notes that Stephen Hunter was, in fact, terminated.''> Thus, even assuming for the sake of argument that Judge Hunter's alleged conduct falls within R.C 2921.42, she did not successfully complete the crime because she failed to “secure” her brother's employment, Under Ohio case law, attempt is a “lesser offence on which . . . a jury must be charged.”''® Here, the State did not charge Judge Hunter with attempting to violate R.C. us 2921.42,'"7 nor was the jury instructed on attempt.''* Because the jury was never instructed on attempt, and because Judge Hunter was never charged with it in the first place, this Court cannot §'6-This should in no way be construed as conceding that interfering with the termination proceeding constitutes “securing a public contract.” It does not, as explained supra. "5 See, eg, Tp. 2173 (Vel. 21 of 37, Tuesday, Sept. 23, 2014), 3167 (Vol. 28 of 37, Thursday, Oct. 2, 2014) 8 Srate v. Deem, 40 Ohio St34 205, 533 N.E.2d 294 (1988), paragraph one of the syllabus (emphasis added). rT. 2, "Tp, 3946-47, 16direct a verdiet finding Judge Hunter guilty of attempting to violate R.C. 2921.42(A)(1). SECOND ASSIGNMENT OF ERROR The trial court erred by refusing to poll the jury at defense counsel’s request after the court unsealed the verdiet and published it, Second Issue Presented for Review A jury’s verdict under Ohio law is not final, and therefore subject to repudiation, unless (1) the deliberations are over, (2) the result is announced in open court, and (3) the jury is polled and no dissent is registered. A. Standard of Re w Whether a trial court is required to poll the jury after a verdict is a question of law.'"? As this appeal presents a pure question of law, review is de novo; accordingly, the “appellate court may properly substitute its judgment for that of the trial court.’"'?" B. The Trial Judge Should Have Polled the Jury at Defense Counsel's Request After the Court Unsealed the Verdict and Announced the Result in Open Court. In Ohio, the right to a jury poll is most explicitly defined in the Ohio Rules of Criminal Procedure, which provide that “[wJhen a verdict is returned and before it is accepted the jury shall be polled at the request of any party or upon the court’s own motion.”"?! This rule derives. from the Ohio Code, which provides that “[bJefore [a] verdict is accepted, the jury may be polled at the request of either the prosecuting attorney or the defendant.”"* Here, the trial court erred in denying the defense counsel's poll request. This court, most importantly, has read these rules as specifically mandating that “if either the prosecutor or the defendant calls for a poll of the jury, the trial court may not aecept the verdict unless the verdict 1 See, e.g., State v, Pare, 253 Conn, 611, 755 A.2d 180, 186 (2000); Weir v, Luz, 137 N.I.L. 361, 363, $8 A.2d 550, 552 (1948), © See, eg., State v, Morris, 132 Ohio $t.3¢ 337, 2012-Ohio-2407, 972 N.E.2d 528, $ 16, 1 Crim. 31D). RC. 2945.77 "7reflected in the written verdict form is confirmed in open court.""® This procedural rule exists ”4 In Judge Hunter's case, however, by rejecting the to “assure[] the jury’s unanimity, defense’s jury poll request, the trial judge effectively assumed unanimity where none in fact existed.'®* The trial court’s error requires reversal, Ohio case law has long recognized that any verdict is premature—and thus not properly confirmable—until publication. Under Ohio law, a juror may repudiate a verdict until it becomes final, and a verdict becomes final only “if (1) the deliberations are over, (2) the result is announced in open court, and (3) the jury is polled and no dissent is registered.” Indeed, the Ohio Supreme Court made clear as early as 1844 that a privy (or sealed) verdict must be revealed in open court—with an opportunity to conduct a jury poll—before it could become final.'"” This 8 principle has been consistently affirmed through the years in Ohio," and in many other jurisdictions.'?? Consequently, in this case, the jury's verdict on Count Six—perhaps unanimous State v. Carmack, 6| Ohio App.3d 351, 354, 572 N.6.26 794 (1st Dist.1989) (emphasis added); accord Williams, {99 Ohio S134 493, 2003-Ohio-4396, 794 N.E.2d 27, at} 34-36 ("Numerous cases hold that the verdict becomes, final once the jury has been polled and cach juror has assented to the verdict in open court... We agree with these cases.”). Perhaps this widespread understanding explains why even the standard instructions the judge presumably read from in conducting the initial, closed poll on October [0 made reference to “the verdict just read,” despite no verdict actually having been read. T.p. at 3993. ™ Carmack at 355; see also 8 Wigmore, Evidence, Section 2355 (McNaughton Rev. 1961) (“The act of assent to a verdict is constituted by the express answer to the clerk atthe polling in open court... The very purpose of the formality of polling isto afford an opportunity for free expression unhampered by the fears or the errors whieh may hngve attended the private proceedings.”) "3 Sco T.d. 275 (Holmes Aff, {13~4; Smith Aff, $3); T.d. 285 (Whitehead Aff, 43). 5 Williams at { 34-36 (quoting United States v. White, 972 F.2d 590, 595 (Sth Cit. 1992). State v. Engle, 13 Ohio 490, 494 (1844) (holding a privy verdict “of no force unless afterward publicly affirmed by a public verdict in open court, wherein the jury might, ifthey pleased, vary from the privy verdiet”. "8 See, eg, Williams at 4 34-36; Carmack at 355; Stare v. Brawn, 110 Ohio App. $7, 61, 168 N-F.2d-419, 422 (9th Dist.19S3) (“A juror may, after coming into court, change his vote, and so express himself to the court when the poll is taken."); Rase ». State, 20 Ohio 31, 33-34 (1851) (en banc) (*TAln accused person, when a verdict of guilty is returned against him, has arigit to have the jury polled. This privilege is never in this State, denied, in a criminal case. ... OF this privilege the accused person is deprived unless present when the verdict is returned.”); see also ‘Mapes v. Coyle, 171 E34 408, 422 (6th Ci. 1999) (interpreting Ohio law to hold that “a juror may change his mind between the jury room and the court roomn.”). ® See, e.g, United States v. Taylor, S07 F-24 165, 167-69 (Sth Cit. 1975) (“a jury has not reached a valid verdict ‘until deliberations are over, the result is announced in open court, and no dissent by a juror is registered”); Miranda ¥. United States, 255 F.2d 9, 17-18 (Ist Cir. 958) (‘[T]he right Co pol the jury is the right to require each juror individually t0 stare publicly his assent to or dissent from the returned verdict which has been announced in apen ‘court in his presence. Obviously the right cannot be exercised imelligently until after the verdict has been 18‘on October 10—was merely tentative until it was read aloud in open court on October 14 for the first time.'*° Only at that moment was it eligible to be accepted, provided it was confirmed by jury poll if such a poll was requested.'?' And such a poll was, indeed, requested.’ Accordingly, under Ohio law, the verdict could not have been properly accepted without the poll Judge Hunter anticipates that the state will rely, as it did below, on State v. Bradley.’ There, the trial judge polled the jury before the verdict was announced in open court, and the Eighth District refused to reverse when Bradley argued on appeal that the trial judge should have polled the jury after the verdict was revealed.'™* Bradley, however, is inapposite. There, unlike here, Bradley's lawyer never asked the trial court to poll the jury after the verdict was read; as h the Eighth District observed, “no objection to the court's procedure appears in the record, wi would have given the trial court an opportunity to correct the matter at the time.”* Here, by contrast, Judge Hunter's lawyer specifically requested the trial court to poll the jury after the verdict was published, thereby giving the trial judge an opportunity to address the issue.'*° ‘Therefore, Bradley does not control this case. The state may also, inexplicably, rely (as it also did below) on this court’s decision in ur State v. Jones.'"” That analogy likewise cannot help but fail. Jones presented a wholly distinct announced in open court”) (emphasis added); State v. Boger, 202 N.C. 702, 702, 163 S.E. 877, 877-78 (1932) The defendant was entitled as a matter of right to know whether each juror assented to the verdict... and to that end he had the right to insist that a specific question be addressed to and answered by each juror in open court, as to whether he assented to said verdict”) (emphasis added. °° See Williams at} 34-36. ®" See Carmack at 354 "pp. 401 ' Sth Dist. Cuyahoga No. 79354, 2002-Ohnio-3895 dat G66. wig "5Tp. 4011 87 No, 830935, 1984 WL 7024 (st Dist.1984). 19issue from this case because there, unlike here, the initial verdict was read in open court."** In Jones, the state “conced{ed] error” in “the publication of a verdict as to one count of a multi- count indictment while the jury [was] still deliberating the remaining counts,” but argued that the error was harmless"? This court agreed, noting in dictum that “the practice of publishing one or more verdicts while the jury is still deliberating remaining counts ought not to be condoned.” Yet Jones is fully consistent with what Judge Hunter sought: a chance to poll the jury once all verdicts were finally “publish[ed}"—that is, read aloud in open court.'*! The rejection of the poll—and subsequent acceptance of the verdict—was not harmless error, but rather reversible error that severely prejudiced Judge Hunter's right to a fair trial under the due process clauses of the Fourteenth Amendment to the United States Constitution and Section 10, Article 1 of the Ohio Constitution. Moreover, under the Ohio Rules of Criminal Procedure, a new trial is appropriate wherever there is “[iJregularity in the proceedings, or any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from having a fair trial.”"? Here, where three jurors attest that they would have disclaimed their “guilty” votes as to Count Six had they been given their rightful chance to do so," the trial court’s error in denying that chance cut to the quick of Judge Hunter's right to a fair trial by a jury of her peers—it silenced her jury*s voice at the most crucial moment.!4 As Fd, at #2. The state, in its attempt to distinguish Williams, 99 Ohio St.3d 493, 2003-Ohiio-4396, 794 N.E.24 27, similarly fails to comprehend the centrality ofthe phrase “in open court” to Judge Hunters claim. See ed at § 34-36 (holding that finality exists after “each juror has assented to the verdict in open court”) (emphasis added), © Jones at *2-3 Hd at *4 (emphasis added). See id. at *2-4 (making clear that reading the verdi “publishing” oF “publication”) ' Crim.R. 33(AMI); see also State v. Green, 67 Ohio App.3d 72, 77, 585 N.E.2d 990 (8th Dist. 1990) (“[A] motion for mistrial can be granted only where the defencant’ right to fair ral has been prejudiced by the complaint of misconduct or iregularity.") TO See Td 275 Holmes A, $9 3-4: Smith AE, 93), 1.285 (Whitehead Aff 3) Cf Brown, 110 Ohio App. 57, 61, 168 N.E.24 419 (granting reversal and remanding where judge accepted verdict despite juror’s failure to make “unequivocal assent” to the verdict); City of Davton . Allen, 94 Ohio L.Abs. loud in open court is what this court meant in that case by 20the jury has been discharged, the proper (and, unfortunately, only) remedy is for this court to grant Judge Hunter a new trial, should it overrule Judge Hunter's first assignment of error. ‘THIRD ASSIGNMENT OF ERROR The trial court erred in failing to meaningfully cure the prosecution’s pervasive misconduct during its rebuttal closing argument. Issue Presented for Review Whether the prosecution’s rebuttal closing argument, which contained fifty-one instances of improper comments—including making inflammatory remarks, interjecting personal opinion, citing unsworn testimony, asking the jury to draw negative inferences from uncalled witnesses, and impugning the defense—denied Judge Hunter a fair trial, A. Standard of Review “For a conviction to be reversed for prosecutorial misconduct, a reviewing court must determine that the remarks were improper and that they ‘projudicially affected the substantial rights of the accused,” so as to “deny a defendant a fair trial.’*"* This court reviews alleged st6 misconduct conduct “within the context of the entire case," while also considering “the cumulative effect of improper comments,” since “errors that are separately harmless may, when considered together, violate a person’s right to a fair trial.’”"“” Where, however, the defense fails to object to an otherwise improper comment, this court will only reverse if it finds plain error.'** B. The Prosecutor’s Inflammatory Language Was Clearly Prejudicial. The prosecutor's “special role in our justice system” mandates that he “adhere to the 129, 132-134, 142-144, 200 N.E.2d 356 (Montgomery C.P, 1959) (granting reversal and new trial where neither clerk nor court granted defense counsel's request thatthe jury be polled after verdict announced in open court). "5 Stave v. Freeman, 138 Ohio App.3d 408, 419, 741 N.E.2d 566 (Ist Dist.2000) (quoting State v, Smith, 87 Ohio St3d 424, 442, 721 N-E.2d 93 (2000) M Freeman at 419-20, Jd, a 420 (quoting State v. Madrigal, 87 Ohio St.3d 378, 397, 721 N-E.2d 52 (2000)) (internal alterations omitted), Smith at 442; see also Crim-R. $2(B). Plain error exists when, “but forthe ervor, the outcome of the tral clearly would have been otherwise.” Williams, 99 Ohio St. 3d 439, 2003-Oiio-4 64, 793 N.E.2d 446, at 40 (citing Stare v, Long, $3 Ohio St.2d 91, 372 N.E.2d 804 (1978). 21highest standards and avoid improper arguments, insinuations, and assertions calculated 10 9 mislead the jury.”"” As detailed in the chart attached as Appendix B, Special Prosecutor Croswell’s litany of uncured “prosecutorial blunders in this case [is] (oo extensive to be excused.”!5° These blunders included: making irrelevant, inflammatory statements; enlisting unsworn statements as evidence; dra 1g a profusion of absent-witness inferences; rel 1g on personal opinion; impugning the defense’s integrity, objections, and belief in its own case; and discussing evidence outside the record. The rebuttal closing thus was not a “brief prosecutorial lapse, but . .. a textbook example of what a closing argument should not be,” prejudicing Judge Hunter's “rights to such an extent as to require reversal.”!*" ‘The state’s rebuttal clos ing was full of needless, inflammatory language that could not help but prejudice the jury. “Courts condemn the use of insulting and abusive remarks when they are not accurate deductions from the evidence . . . [or] possess a unique capacity to remain 2182 in the minds of the jurors and influence their deliberations."' In Freeman, this court deemed “highly inflammatory” a prosecutor's comment that “big-time dope dealers have a lot of money.” Here, the prosecutor did worse. Over objections, the prosecutor repeatedly mentioned children being left in “home[s] where there is sexual abuse” while waiting for judicial orders,' an irrelevant, unsubstantiated, and inflammatory notion. He likewise made multiple ¥ Freeman at A19 (citations omitted); see also Berger v. United States, 298 U.S. 78, 88, 55 8.Ct. 629, 89 LEA. 1314 (1935): United Stetes v. Weatherspoon, 410 F.34 1142, 1148 (Sth Cir.2005) (*TT]he ethical bar is set higher for the prosecutor than for the criminal defense lawyer.”) 8° See State v, Liberatare, 69 Ohio St.2d 583, 589, 433 N.E.2d 561 (1982) ° See id at 590. The rebuttal closing was not, unfortunately, the only place where the prosecution colored well ‘outside the lines; during cross-examination of one defense witness, Attorney Janaya Trotter, Special Prosecutor Croswell launched into a bafMling, seemingly rhetorical line of inquiry that concluded with the unprovoked question: “There is one set of laws for white judges to rule on and a different set of laws in this country for A frican-Americans [sic] judges to use?” T.p. 3182-85. Nevertheless, Special Prosecutor Croswell’s rebuttal closing presents the heaviest concentration of such line-crossing, 5? Gershman, Prosecutorial Misconduct, Section 11:3 (2d ed.2014). °° Freeman at 423 547 p, 3816 (Maybe what Deters has to listen to isthe social worker who says this child is being sexually abused. and we can't get this child out of the home because we can’t get Judge Hunter to rule on the case”), 3857 (“And the 2references—despite objections—to irrelevant acts of violence, ostensibly seeking to tie Judge Hunter to “six kids who beat some guy up and hospitalized him in North College Hill because they were bored,""** and a “bailiff who had been terminated for beating children.”'* These appeals prejudiced Judge Hunter’s substantial right to be judged solely on the law and evidence, The prosecutor here likewise sought to make an impermissible appeal to community pressure, As the Ohio Supreme Court has noted in State v. Draughn,'*’ a prosecutor may not “inflame the passion and prejudice of the jury by appealing to community abhorrence or expectations with respect to crime in general, or crime of the specific type involved in the case,”' In Davis, for example, the Fifth District sustained an assignment of error where the prosecutor had told the jury that they would “bring a verdict of guilty” if they were “not going to stand for” public officials “spread[ing] . . . false representation." Here, the special prosecutor appealed to the same impermissible considerations, saying to the jury: “And 1 would suggest to you that in this case, there is no question everybody is watching this case. Everybody is watching. And everybody is wondering what is our system of justice about in this community,”'® Though interrupted by an objection—to which the judge merely stated “Same instruction that I previously gave"— the prosecutor continued people that are adversely affected can't appeal it because she won't put on the final appeatable order, sa the child ‘who is still stuck in the home where there is sexual abuse until she—"). See also T.p. 3814 (“He has an obligation to sce the children who are being sexually abused in homes are removed from the homes”). 'ST.p, 3810, "Tp. 3861. See also id at 3812-13 (“The very fist decision she made as a juvenile court judge . .. was to hire as her bailiff someone who had been terminated for beating up a child”) "5776 Ohio App.36 664, 602 N E.2d 790 (1992). fd, at 611; see also Weatherspoon, 410 F.3d at 1149 (“A prosecutor may not urge jurors to conviet a defendant in ‘order to protect community values, preserve civil order, or deter future lawbreaking,”); State v. Davis, 60 Ohio App.24 355, 361-62, 997 N.E.2d 1215 (Sth Dist, 1978) (“[Alrguments made to incite a jury to convict to meet a public demand are inimical to the basic rights of a defendant since they prevent him from having a fair and impartial tial”) " Davis at 361-62. Tp. 3916, 23undeterred.'*' He told that jury that “[p]eople are looking at this,” that these people were looking to see “is a judge going to be held accountable?”, and, a few moments later, that “it’s time somebody sent a message to our community that we're not going to tolerate this nonsense and | am asking you to do that." ‘This sequence was impermissible under Draughn, and prejudiced Judge Hunter’s substantial interest in being judged solely on the law and evidence.'? In addition to the five inflammatory remarks that were objected to, the prosecutor also made twelve inflammatory remarks that were not objected to by counsel.'“ As noted above, these remarks themselves are susceptible only to plain-error review." This court has, however, considered other misconduct alongside objected-to misconduct in determining whether the “cumulative effect of [a] prosecutor’s misconduct prejudicially affected” a defendant's 2166 “substantial rights.” In this case, regardless of whether the prosecution’s other inflammatory statements” would rise to the level of plain error on their own, they demonstrate a summation that, as a whole, ran well into foul, inflammatory territory. C. The Prosecutor Further Prejudiced Defendant by Relying on Unsworn Testimony. Twice in his summation, the prosecutor improperly cited defense counsel’s opening statement as evidence. The purpose of a prosecutor's summation is “to assist the jury in analyzing, evaluating, and applying the evidence.”"** A prosecutor may not present himself as wg 1 fd at 3916-17, 392. ‘© The prosecutor set this scene by connecting the case to Bill Clinton “standting] up in front ofthe nation and Hying]” and to the Watergate scandal. Tp. 3915-16 ' See char altached as Appendix B. ‘SS Smith, 87 Ohio St3d. at 442, 721 N.E.2d 93, ° See Freeman, 138 Ohio App.3d at 423, 741 N.E2d 566, ‘ See, e.g, supra notes 154, 156, 163 (noting additional comments); see also T.p. 3796-97 (susgesting defendant is “an aggressive, dishonest, confrontational person who is out of control), 3865 (suggesting defendant is someone who “has always got to get even"), and 3921 (describing defendant as someone who “spent the ast two years gaming the system .. . and what she is trying to do now is game you”) "United Stats v. Morris, S68 F.2d 396, 401 (Sth Cit.1978); sev also Lawless, Prosecutorial Misconduct, Section 9.09 (ath ed.2008), 24an unsworn witness,'® and it follows by stronger logic that he may not hold out opposing counsel’s unsworn opening statement as evidence to the jury.'™ Here, the prosecutor told the jury, “you know that to be true because Clyde told you that . . . in his opening statement.” '7! The defense objected and the judge reminded the jury that “what counsel says to you in final argument is not evidence.”'” Undeterred, the prosecutor retumed to this line attack, stating that yy January 25th, 2013 Tracie Hunter had established a reputation in this community . . . of exactly what Clyde says she was in his opening statement.”'” The defense again objected, and the judge replied only that: “We have properly instructed the jury, so you may proceed. The same instruction that I have given to you several times at least.’"!”* The prosecution was thus effectively allowed to turn defense counsel into an unsworn witness against his own client. 1D, The Prosecutor’s Absent-Witness Inferences Added to the Prejudice. Burden-shifting by the prosecution further prejudiced Judge Hunter. While Ohio courts have allowed the occasional inference to be drawn from 2 defendants’ failure to call witnesses'”*—especially those with close connections to the alleged crime or to whom they have close relationships'“’—this court has recognized that a prosecutor can go too far in suggesting © See Gershman, Prosecutorial Misconduct, at Section 11:23 (observing that improper vouching for a witness's credibility makes the prosecutor “himself an unswom witness”), see also Bares v, Bell, 402 F.3d 635, 64 (6th Cit 2005) (ts wel established law tat “a prosecutor cannot express his personal opinions before the jury”) eitations omitted). "9 CF State v. Smith, 84 Ohio App.3d 647, 662, 617 N.E.24 1160, (2d Dist.1992) (nothing that “opening statements, are not “evidenco™ and cannot on ther own open up the issve ofa defendant's character to attack in the prosecution's casesin-chiet), Tp, 3806, 1 Id. at 3806-07. "7 Id at 3865. Td at 3866, "5 See State v. Lane, 49 Ohio St.2d 77, 86, 358 N.E.2d 1081 (1976) (allowing inference from failure to call witnesses to prove defendant's case). "5 See State v. Champion, 109 Ohio St. 281, 289, 142 N.E. 141 (1924) (allowing inference from failure to call defendant's husband and two other eyewitnesses); Stat . Hise, It Dist. Hamilton No, C-780257, 1979 WL 208707, *5 (Jan. 17,1979) (allowing inference from failure to call defendant's mother) 25that unheard evidence undermines the defendant's case.'”” In this case, the prosecutor engaged in nine instances of absent-witness burden-shifting—each of which the defense objected to, and each of which objections received only a cursory recitation of the “same instruction,” that “final argument is not evidence.”'® Regardless of whether this litany, taken alone, would preclude a fair trial, its underscores the prosecutor's lack of focus throughout the summation on his proper purpose: “assist{ing] the jury in analyzing, evaluating, and applying the evidence.”"” E, Allowing the Prosecutor To Interject Personal Opinion Was Plain Error. The prosecutor also repeatedly, and impermissibly, interjected his personal opinion into the summation. Courts, including this one, have consistently identified “personal testimony” by ‘a prosecutor as improper conduct.'*” “Thus, an attorney properly may state, ‘I believe that the evidence has shown the defendant's guilt,” but he may not state, ‘I believe that the defendant is guilty.""! Here, however, the prosecutor repeatedly indicated he personally believed the defendant to be guilty. Early in his rebuttal closing, he stated: “I would suggest to you that [counsel] is having a problem with his defense because his client is clearly guilty." As he concluded, he stated his belief in Judge Hunter’s guilt even more plainly: So [am sure my mother is listening. I am sure my mom is going to tell me ©” See Freeman, 138 Ohio App.3d at 422, 741 N.E.2d 566 (observing that prosecution “impermissibly shifted the burden” by presenting an “inference .. 0 the jury” tat if certain audiotapes helped defendant “the defense would have played them"), See also United States v. Blakemore, 489 F.2d 193, 195 (6th Cir. 1973) (“An adverse inference is permitted from the failure of a defendant to call witnesses if they are ‘peculiarly within (his) power to produce” ‘and if their testimony would ‘elucidate the transaction.” "Tp, 3808-10, 3817-18, 3890-91, 3907-08, 3917-19, 3922. ° aforris, 568 F.26 at 401 "See, a, Bates, 402 F.3d at 644 (“It is well-established law that a prosecutor cannot expres his personal ‘opinions before the jury.”} (internal quotation marks omitted): Liberatore, 69 Ohio St.2d at 589; Freeman at 423; see also Berger, 295 US. at 88, 55 S.Ct, 629, 89 L.Ed. 1314 (“[I]mproper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry 3. ue v, Caldwell, 19 Ohio App. 3d 667, 673, 607 N.E.24 1096 (4th Dist.1992) (quoting Morris at 401). "7p. 3799. This comment also impermissibly implied defense counsel believed his client was guilty, an abundant series of errors discussed infea. A. few moments later, the prosecutor likewise relied on his and his co-prosecutor's decades of experience in criminal law to suggest that their personal backgrounds and beliefs in “reasonable doubt” and “that evidence should be competent” should undermine the defense’s case. See T.p. 3795-96. 26that I should have behaved... . You shouldn’t get angry, you shouldn't lose your temper. But, you know, there comes a point in time where if people want it broken out, they want it broken out... | really had no intention of it, but what 1 told is the absolute truth. Iti the reality of the situation." “These statements had no basis in fact, and served only to imply that the prosecution personally believed the defendant to be guilty. Worse, the prosecutor relied on his personal opinion to diminish the seriousness of the "8 this court jury's verdict and mislead them about its possible consequences. In State v. Young, noted that prejudicial error ean occur where a prosecutor’s statement confuses the jury about the possible consequences of a guilty verdict.'** There, the prosecutor had told the jury, during the penalty phase, “My opinion would be that 20 years doesn’t mean 20 years and 30 years doesn’t mean actually 30 years.""®* Courts in other states have likewise reprimanded prosecutors harshly for diminishing a verdict’s consequences.'*’ In State v. Shutts,'** a state appellate court found plain error where the trial court told the jury that “the court was not bound by their sentencing decision.""? Here, the prosecutor made a similarly egregious error when he told the jury: Thold absolutely no ill will towards Judge Hunter, none whatsoever. And [ could tell you and J could give you my solemn oath and my word as a professional that if, if she is convicted of these charges I would be the last person fo ask anyone to incarcerate her. That’s not where I come from and that’s not what it’s about. Not to me. But in the final analysis that“s not my responsibility.'”” Sec, e., Frsonv. State, 17 Md. App. 320, 326, 301 A.2d211 (1973) (finding “substantial liktihood thatthe jury was prejudiced” by prosecutor's suggestion that defendant, i found guilty, would be “put on probation”); Gershman, Prosecutorial Misconduct, at Section |1:34-35 (noting that prosecttors may not “comment on the consequences that Would result from the jury's verdict” oF make “references to lenient treatment... because they relieve the jury of its responsibilty to decide the case on the facts alone” and “exploit feelings of sympathy for the defendant"), "85723 5, W.2d 594 (Mo.App-1987) 1 id at 597, Tp, 3799-3800.The implication was clear: if you find Judge Hunter guilty, the prosecution will work to make sure she does not go to jail, That misleading implication could only serve to induce a wavering jury to view the consequences of its decision as much lighter than they in fact were. The prosecutor's “solemn oath” rises to the level of plain error,'” and calls for reversal. Judge Hunter anticipates that the state may argue that this misconduct is acceptable under the invited-response doctrine because defense counsel, in his closing, alluded to the possibility of the state sending Judge Hunter to prison.'"? ‘That argument should fail. As this court ruled in Freeman, the simple fact that defense counsel’s closing argument has questionably raised an issue does not preclude a reviewing court from finding a prosecutor's “disproportional response” to be prejudicial.'" Instead, the “more appropriate” response is simply for the state to object to the defense’s argument in the first place.'™ Here, if the prosecutor had concems about defense counsel's statements, the proper response was for him to object and ask for an instruction. He had no right to exploit any misconduct he perceived and run off the rails himself. F. Letting the Prosecutor Denigrate the Defense Was Also Plain Error. Perhaps more egregious, the prosecutor relied on his personal opinion to impugn defense counsel's belief in his client's innocence. This was a double whammy. Just as the Ohio Supreme Court has noted that “[w]here opinions are expressed on facts outside the evidence, or are predicated on inferences based upon facts outside the evidence . . . judgments in those cases "Cf United States v. Rudberg, 122 F.34 1199, 1206 (Sth Cir.1997) (Finding plain error where prosecutor vouched for credibility of government witnesses) "7 p, 3782 (referring to “a society where the government can just point finger at someone ... and lock them up.” " Freeman, 138 Ohio App.3d at 322, 741 N.E.24 566. "1d; accord United States v. Young, 470 US. |, 12-13, 105 $.Ct, 1038, 84 L.Ed. 2d 1 (1985) (noting that “invited responses’ can be effectively discouraged by prompt action from the bench” and that “the prosecu error was in failing to ask the District Judge to deal with defense counsel’s misconduct”) 28 Fs frsthave been reversed upon appeal,”!%> so too has it condemned statements that impugn defense counsel's integrity, or suggest that the defense believes its own case is a sham." This court condemned similar tactics in Freeman, when it ruled improper the prosecutor's statement that “i]t is like poker; if you get dealt bad cards, you got to play them,”!%” and in Hart, when it ruled improper the prosecutor's attempt to suggest defense counsel were “seeking to hide the truth” by stating: “And when you think about that you gain valuable insight into their whole method of operation, Crank up the fog machine, Let’s try and conjure up a reasonable doubt.""* In this case, stunningly, the prosecutor—drawing explicitly on his experience as a defense attorney—launched into exactly this kind of disparaging argument. Amid decrying counsel’s “red herrings,” emphasizing that counsel was “just fighting his case” and “having a problem with his defense because his client is clearly guilty,’ and suggesting that counsel 202 was “struggling” because “he is not Harry Houdini,’” the prosecutor delivered this soliloquy: Let's talk about defense tacties. And you know why I tell that I can’t criticize Clyde, he told you his client did nothing wrong. He has known me a long time. The truth of the matter is when Clyde was in high school I was trying cases and he used to come and watch me try cases. So 99 percent of what he is doing here is what I have done many times, what Merlyn [the other special prosecutor] has done many times, that’s what every criminal defense lawyer has done. .. . Now if you don’t have the law or the facts you drop back to your defensive position and the first thing you do is your start talking about the prosecutor, You criticize the State v. Stephens, 24 Ohio St. 2d 76, 83, 263 N.E.26 773 (1970). See, e.g, State v. Keenan, 66 Ohio St 34 402, 405-06, 613 N.E.2¢ 203 (1993); State v. Smith, 14 Ohio St3¢ 13, 14, 470 N.E2d 883 (1984) (condemning as “clearly improper” statements impugning credibility of defense’s case) see also Gershman, Prosecutorial Misconduct, at Section |1:19 (It is highly improper fora prosccutor to insinuate that defense counsel does not believe his client's testimony or has no confidence in his clients case") ” Freeman at 420 (*A comment that suagest that defense counsel believes his client is guilty is forbidden, This is because ‘if the jury believes that even the defendant's own advocetes think him guilty, that belief will naturally carry great weight in their deliberations. The jury is also likely to resent defense counsel's perceived insincerity.” (quoting Keenan at 406). State v. Hart, 94 Ohio App.34 665,674, 641 N.B.24 755 (Ist Dist. 1994), Tp, 3795, 2 fd a 3798. 21 rd a 3799. 2 fd, at 3827-28; see also id at 3913. 29prosecutor, you criticize the police, you criticize the system, you criticize anything you could criticize, And then the next thing you do is you blame others. It’s somebody else’s fault. That*s the next move. Then what you do is obfuscate all the issues and try to make it as confusing as you possibly can so you can stand up in front of a jury and say, I have confused you, that’s reasonable doubt, Because J have confused you about a bunch of things that has got nothing to do with anything, got nothing to do with the charges, nothing to do with the proof, got nothing to do with the law but you're confused, and there, that’s reasonable doubt. ‘And what I will tell you is, is that what the next move for a criminal defense lawyer is, and | am one, is to try to supplement fact with fiction and that’s what has happened here today, very masterfully and very convincing, but certainly he has tried. Now as I've said to you, | understand what he is doing. 1 don’t have any problem with that, but 1 would be remiss in my duties that if I accept it. When I accepted the appointment to be the prosecutor in this case, I would be remiss in my duties if | did not point that out to you." The prosecutor followed this monologue one in which he observed that “the big danger in cases like this when you get real good lawyers, and Clyde is a really good lawyer, they could confuse 1204 [W]hen all else fails,” he suggested, counsel “has a defense."”°> The prosecutor the issue, then led the jury through more than 500 words on an outlandish hypothetical—*paper and pencils” stolen from “K-Mart” to defuse a “nuclear bomb”—through which counsel could try to fabricate reasonable doubt, just as, the prosecutor suggested, “he has done here.”""" 207 This language betrayed the prosecutor’s role as “servant of the law.” It did not gesture at evidence, but rather bent the jury’s ear with paragraph upon paragraph of disparagement, ostensibly bolstered by this prosecutor's personal knowledge of “defense tactics." Courts have found plain error when prosecutors “improperly impugned [a defendant's} lawyer and the 2 dat 3800-02. 2 dat 3823. 2g 2% fd. ot 3823-26. 27 See Berger, 295 U.S. at 88, 55 S.Ct. 629, 89 L.Ed. 1314, 28 T.p. 3800. See also id. at 3899-3900 (“Let me tell you about tral tactics.”) 30institutional role of defense attorneys generally.” This court should do so here. The prosecutor, unfortunately, did not stop there, but also implied that the defense had subored perjury and criticized counsel for objections. Neither is permissible under Ohio law. ‘The Ohio Supreme Court has made clear that “intimat[ing] that defense counsel had suborned "210 and likewise that perjury” is “well beyond the normal latitude allowed in closing argument jt is improper to denigrate defense counsel in the jury's presence for making objections.**!' “The prosecutor made both of these blunders more than once. He told the jury, “I am not the one 2 who put on the people who perjured themselves,””"? and that “[the defense] presented what I would say to you was perjured testimony. That is what these people tried to do. ‘They tried to play games with you.”*"? Similarly, after the defense objected at other junctures, he snapped, in ai front of the jury, “Judge, will you tell him to stop interrupting me?*"* and complained to the jury, “If I repeat myself, it's only because I can’t remember where | am when I get interrupted."*"* This misconduct struck at the heart of the defense’s credibility, and “place{d] the defense counsel in the no-win pos ition of either passively permitting the prosecutors to make 2216 improper arguments or objecting and angering the jury."*" Whether or not the court’s allowance rose (0 the level of plain error, these errors illustrate a rebuttal closing rife with improprieties. G. The Prosecutor’s Unchecked Reliance on Evidence Outside the Record Further Prejudiced the Defense. Last but not least, the prosecutor also sought to suggest that the state had mountains more evidence that it was holding it back out of respect for the jury’s time, Courts have condemned 2 United States v. Ollivierre, 378 F.34 412, 421 (4th Cir.2004), judgment vacated on other grounds, $43 U.S. 1112, 125 S.Ct, 1064, 160 L.Ed, 2d 1050 (2005). 20 Smith, 14 Ohio St3d at 14. 2 Keenan, 66 Ohio St.34 at 406, 613 N.E.2d 208. 22 Tp, 3919. 28 at 3920. 4 fd, at 3917-18, 2 id, at 3916. ™ Bates, 402 F.3d at 646. 31this kind of manipulation.2"’ In Snipes, for example, the Sixth Circuit declared prejudicial a n summation that “[w]e could have made thirty or forty counts in this prosecutor’s comment tot thing, if you had wanted to be here a couple of weeks trying this laws Likewise, in Maddox, the D.C. Circuit noted that 2 prosecutor's statement “crossed well over the line between the permissible and the impermissible” by suggesting that it declined to call certain witnesses because “hearing four days’ worth of the same thing may have been exciting for some of you, but I doubt it."” “When a prosecutor starts telling the jury about what other potential witnesses would have said if the government had only called them,” the court noted, “it is time not merely to sustain an objection but to issue a stern rebuke and a curative instruction, or if there can be no ‘cure, to entertain a motion for a mistrial.” Here, such a rebuke was needed, but not given. During his summation, the prosecutor observed: “I have tried my very best to be a gentleman and Thave tried my very best to not engage in this thing together, but if they want to take it together | will tell you what we could do. We will reopen the evidence and we could go for about six months here if that’s where they want to go.””! The upshot of this statement was clear: as in Maddox, there was plenty more evidence, “and the jurors could thank the prosecutor for not . wasting [their] valuable time.” ‘These statements impermissibly manipulated the jury, further illustrating a summation that left virtually no rule of prosecutorial conduct unbroken. H, The Court’s Failure To Cure the Errors i Judge Hunter’s Substantial Rights and Such a Close Case Prejudiced ely Changed the Result. As noted above, defense counsel objected to many, if not most, of the prosecutor's most ™ See, .2., United States v. Maddox, 156 F.3d 1280, 1283 (D.C. Cir.1998); Snipes v. United States, 230 F.2d 165, 166 (6th Cir.1956). 28 Snipes at 166. id 2 Tp. 3921; see also, at 3851-52. 2 Maddow at 1283, 32egregious comments. No objection garnered a specific jury instruction or strike from thie record! cach time, the judge either reminded the jurors that “what counsel says to you final argument is not evidence” or the law,” or more often referred the jurors to the “same instruction” previously ma given. Once, the judge simply told defense counsel: “That's enough out of you.”? These general, boilerplate instructions could not cure the prosecutor's rampant improprieties. The Ohio Supreme Court’s analysis in Smith should control here: [Jn cases of such flagrant misconduct on the part of the prosecution as ‘was present here, the general instruction that arguments of counsel are not to be considered as evidence was insufficient to correct the error. There was no more specific instruction from the court, In view of the fact that improper insinuations and assertions of personal knowledge by the prosecution are apt to carry great weight against the accused when they should properly carry none, some more definite guidance from the court was required.” ‘This court, likewise, has recognized that a “general instruction which indicated that counsel’s argument is not evidence” or law—even when paired with a more specific instruction—does not ar cure prejudicial error.” Here, it beggars belief that the judge’s imprecise refrain—usually delivered in shorthand (“same instruction”) }—would have caused the jury to discount the 28 prosecutor's improper remarks, More likely, the judge's implied impatience”* would have given 25 Tp. 3806-07, 3810, 3816, 3861-62, 3890, The judge also twice noted that “[W]hat they say to you in closing, argument rot the law either” Tp. 3810, 3890, *¥ 1d, at 3809, 3811, 3818, 3858, 3866, 3891, 3908, 3916, 3918, 3922. Once, sua sponte, he also noted: “This has bbeen a long trial and tempers get heated. Don't hold that against one side or the other, That's sort of in along trial. That's normal. Both sides are representing their clients and they're great advocates. Don't hold that against one side cr the other.” Tip. 3918, 1d at 3919, Sev also id. at 3810 (“That's enough out of both of you. That’s enough”), 3918 (That's enough out ofboth of you.”). 25 Smith, 14 Ohio St.30 at 15, 470 N.E.2d 883, 7 Sve Young, 1986 WL 5503, at *9 (noting that “{t]he court's curative instruction, coupled with his general instructions, was simply not precise enough to clear up the jury's confusion”), 2 Soe, e.g, T.p. 3809 ("Same instruction, ladies and gentlemen, that I have given to you at least four or five times. You may proceed.”), 3818 (“Again, same instruction. Let's proceed.”), 3919 (“That is enough out of you. Mr. Croswell, you n 33“the prosecutor's comment [the court’s] approval in the jury's eyes.’ Here, as in Freeman, repeated misconduct and the absence of an effective cure denied Judge Hunter a fair trial 2° le because this was a close case. As this court noted in Reversal is especially appropt Hart: “When the evidence of guilt is less than overwhelming, there is more damage in the prosecution trying to bootstrap the lack of evidence with arguments appealing only to passion or prejudice. ‘It is in the close case that the [prosecutor's] conduct is scrutinized more closely. This case calls for particularly close scrutiny. As the judge himself observed, it had already been a “long trial,” marked by both sides fighting hammer and tongs. The jurors would end up deadlocked six days after deliberations began, with three jurors swearing that even the verdict they had tentatively agreed to during the deliberations was no longer their true verdict." The state’s case, in other words, was weak enough that there is good cause to doubt the “jury would have found [Judge Hunter] guilty beyond a reasonable doubt absent the improper comments.” The prosecutor, by “appealing . . . to passion [and] prejudice,"*** thus did not just harm Judge Hunter's right to a fair trial in theory, but harmed her substantial rights in fact. The “cumulative effect” of such wide-ranging, uncured prejudicial error in such a close trial merits reversal” Il, CONCLUSION For the aforementioned reasons, this court should reverse Judge Hunter's conviction and direct the trial court to enter judgment of acquittal on Count Six on the grounds that the evidence 2° Of Freeman, 138 Ohio App.3d at 423, 741 N.E.2d 566 (noting that “tral cour’s overruling ofan objection gives “the prosecutor's comment its approval in the jurys eyes”) (citing Keenan, 66 Ohio St.3d at 410, 613 N.E.24 203) 2 Seid > Hart, 94 Ohio App 34 at 676, 641 N.E2d 755 (quoting Drangin, 76 Ohio App.3d at 672, 602 N.E.2d 790), accord United States v. Francis, 170 F3d $46, $51 (6th Cir. 1999); United States v. Garcia-Cuizar, 160 F-36511, 520 (Oth Cir. 1998); se also Freeman a 423 (including observation that “[ihe evidence against Freeman was not evervhelming” in “cumulative” determination). Php, 3917. © fd, at 3970-11, 4005. DeT.d.275 (Holmes Aft, {¥]3-4; Smith AME, 43); Td. 285 (Whitehead Aft, $3). °* Freeman, 138 Obio App.3d at 423, 741 NLE.2d 566, > Hart, at 676. 2 Freeman at 420, 423 34was insuffi nt as a matter of law to convict her of Having Unlawful Interest in a Public Contract, If this Court declines reverse on that basis, then it should reverse and remand this case for a new trial based on the grounds asserted in the second and third assignments of error. ingleton (0074556) Ohio Justice & Policy Center 215 East 9" Street, Suite 601 Cincinnati, OH 45202 Phone: (513) 421-1108, ext. 17 Fax: (513) 562-3200 Counsel for Appellant Tracie Hunter CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of Defendant-Appellant’s Brief was served by U.S, Mail upon Special Prosecutor R. Scott Croswell, III, Croswell & Adams Co. LPA, 1208 Sycamore Street, Olde Sycamore Square, Cincinnati, Ohio, 45202, and Special Prosecutor Merlyn D. Shiverdecker, Carr & Shiverdecker, 817 M Street, Suite 200, Cincinnati, Ohio 45202, on this 15" day of June, 2015. David A. Singleton 35THE STATE OF OHIO, HAMILTON COUNTY COURT OF COMMON PLEAS date: 122972014 code: GJCH judge: 109 Judge: NORBERT 4 NA 7 No: B 1400110 STATE OF OHIO JUDGMENT ENTRY: SENTENCE vs. TO COMMUNITY CONTROL TRACIE HUNTER **4NUNC PRO TUNC 12/05/2014*** **CORRECTION ** Defendant was present in open Court with Counsel CLYDE BENNETT II on the Sth day of December 2014 for sentence. ‘The coun informed the defendant that, as the defendant well knew, after defendant entering a plea of not guilty and after tral by jury, the defendant has been found guilty of the offense(s) of: count 6: HAVING AN UNLAWFUL INTEREST IN A PUBLIC CONTRACT 2921- A2ALIORCN,FA ‘The Court held a sentencing hearing during which the Court afforded defendant's counsel ‘an opportunity to speak on behalf of the defendant. The Court addressed the defendant personally and asked if the defendant wished to make a statement in the defendant's bchalf, or present any information in mitigation of sentence. ‘The State's representative also had the opportunity to address the Court. ‘count 6: CONFINEMENT: 6 Mos HAMILTON COUNTY JUSTICE CENTER (CUSTODY OF THE SHERIFF ) After considering the risk that defendant will commit another offense, the need for protecting the public therefrom, the nature of circumstances of the offense(s), and the Gefendant’s history, character and condition, the Court hereby orders the defendant placed on Community Control on condition that defendant comply with the general conditions of Community Control established by this Court, and further: count 6: COMMUNITY CONTROL: I Yrs | | NON-REPORTING. | ii 109060630 THE DEFENDANT IS TO PAY COURT COSTS. ‘THE DEFENDANT IS NOT TO VIOLATE ANY LAWS. Paget cMSG331NTHE STATE OF OHIO, HAMILTON COUNTY COURT OF COMMON PLEAS date: 122972014 code: GJCH judge: 109 a0 Judge et ANADEL NO: B 1400110 - STATE OF OHIO SUDGMENT ENTRY: SENTENCE vs. TO COMMUNITY CONTROL TRACIE HUNTER **NUNC PRO TUNC 12/05/2015*** **CORRECTION ** THE DEFENDANT IS TO REPORT FOR EXECUTION OF SENTENCE ON DECEMBER 29, 2014 AT 8:30 A.M. AT THE SHERIFFS OFFICE IN ROOM 260 OF THE HAMILTON COUNTY COURTHOUSE. THE COURT ALSO ADVISED THE DEFENDANT THAT IF HE / SHE VIOLATES THE TERMS AND CONDITIONS OF COMMUNITY CONTROL, THE COURT WOULD IMPOSE A PRISON TERM OF EIGHTEEN (18) MONTHS LESS CREDIT TIME SERVED IN THE DEPARTMENT OF CORRECTIONS, FURTHER, IN ACCORDANCE WITH RC 2901.07, THE DEFENDANT IS REQUIRED TO SUBMIT A DNA SPECIMEN WHICH WILL BE COLLECTED AT THE PRISON, JAIL, CORRECTIONAL OR DETENTION FACILITY TO. WHICH THE DEFENDANT HAS BEEN SENTENCED. IF THE SENTENCE INCLUDES ANY PERIOD OF PROBATION OR COMMUNITY CONTROL, OR IF AT ANY TIME THE DEFENDANT IS ON PAROLE, TRANSITIONAL CONTROL OR POST-RELEASE CONTROL, THE DEFENDANT WILL BE REQUIRED, AS A CONDITION OF PROBATION, COMMUNITY CONTROL, PAROLE, TRANSITIONAL CONTROL OR POST-RELEASE CONTROL, TO SUBMIT A DNA SPECIMEN TO THE PROBATION DEPARTMENT, ADULT. PAROLE AUTHORITY, OR OTHER AUTHORITY AS DESIGNATED BY LAW. IF THE DEFENDANT FAILS OR REFUSES TO SUBMIT TO THE REQUIRED DNA SPECIMEN COLLECTION PROCEDURE, THE DEFENDANT WILL BE SUBJECT TO ARREST AND PUNISHMENT FOR VIOLATING THIS CONDITION OF PROBATION, COMMUNITY CONTROL, PAROLE, ‘TRANSITIONAL CONTROL OR POST-RELEASE CONTROL. **NUNC PRO TUNC 12/05/2014, **CORRECTION ** Page 2 (CMSG331NAPPENDIX A-2: Trial Court’s Denial of Defense’s Motion for New Trial and Written Motion for Judgment of AcquittalENTERED COURT OF COMMON PLEAS ii nov 2:0 2014 CRIMINAL DIVISION HAMILTON COUNTY, OHIO Di0s6«2281 STATE OF OHIO, : Case No. B-1400110_ Plaintiff, if ORDER vs : ‘TRACIE HUNTER, : Judge Norbert A. Nadel Defendant ! ‘This matter is before the Court pursuant to the following: 1. Defendant's Motion for a New Trial on Count Six of the indictment. 2. Defendant's Motion for Judgment of Acquittal on Count Six of the indictment. With reference to the Motion for a New Trial, the Court finds as follows: 1. Once a Jury has returned a verdict and that Jury has been polled, a juror may not later rescind the verdict. 2. To rule otherwise would cause chaos by jeopardizing the integrity of jury deliberations and the finality of jury verdicts. With reference to the Motion for Judgment of Acquittal on Count Six, the Court finds as follows: There is sufficient evidence to sustain a conviction on that count. Accordingly, it is ordered as follows: 1. The Motion for new trial is denied. 2. The Motion for Judgment of Acquittal on Count Six is denied.It is further ordered as follows: 1. The sentencing date of December 2, 2014 is hereby vacated, / 2, The Motion for a New Trial based on Juror Misconduct filed on November 17, 2014 is hereby set for hearing on December 2.3014 at 10:00 AM. Norbert A. Nadel, pate [zo [1+ Copies to: Clyde Bennett, IT 119 E. Court Street Cincinnati, Ohio 45202 Merlyn D. Shiverdecker 817 Main Street, Suite 200 Cincinnati, Ohio 45202 R. 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