B. Trial Court II [RICHARD (the) "DICK" MARKUS] Was Prejudiced by an Ex Parte
Letter From Adversarial Third Parties In Unrelated
Civil Litigation,
Which Ex Parte Letter The Court
Deliberately Withheld from the Defense.
Trial Court II
withheld an ex parte letter that
adversaries of Inspector Paul M. Hartman, in unrelated civil litigation filed
in the U.S. district Court, Southern District of Indiana, sent to the Trial
Court II immediately prior to Defendant’s second trial. The ex
parte letter made false and fraudulent claims of unspecified wrongdoing
against Inspector Hartman and the undersigned.
Trial Judge II [RICHARD (the) "DICK" MARKUS] never disclosed the ex
parte letter to Defendant or his counsel, who only inadvertently learned of
the letter several months after Trial II.
A copy of the ex parte letter
sent by Kevin McCarthy (an Indiana attorney fired by the U.S. Justice
Department for cause) and Alan Kershaw (an Italian attorney suspended from the
practice of law for one year during the period May 2012 and May 2013) is
attached as Exhibit Four.
The ex parte letter prejudiced Defendant and
his defense team, as evidenced by the following finding of the Ninth District
Court of Appeals in its decision in Mr. Hartman’s second appeal, State v. Hartman, 9th Dist.
No. 12CA0057-M, 2013-Ohio-4407:
Ultimately, it
was the State’s repeated comments about lies and mischaracterization of the
evidence that led defense counsel to finally object during a sidebar. Defense Counsel correctly pointed out that
“it is improper to say an attorney is lying or misleading.” Nonetheless, the trial court, while
expressing concern that the prosecutor was possibly making references to
matters that were not in evidence, overruled
the objection and the assistant prosecutor’s inappropriate comments
continued. [Emphasis added.] Id, at
10.
Defense counsel
made no subsequent objections during closing argument. Given the trial court’s response to her
initial objections. It is possible she viewed the act of further objection as
futile. To the extent that this Court should view any remaining comments under
the plain error standard, we conclude that the totality of the improper
comments constitutes plain error. [Emphasis
added.] Ibid., n.1.
["PLAIN ERROR" IS AS BAD AS IT GETS AT TRIAL !!!]
This
and other actions by the State and the Judiciary reach far beyond prosecutorial
misconduct and demonstrate the State’s and the Trial Courts’ bad faith
throughout these proceedings. The
Ninth District Court of Appeals has, in circumstances markedly similar to
Matthew Hartman’s first and second trials, held that retrial is barred in the
case of an accused who “has
been sufficiently harassed by unlawful government procedure as to invoke the
prohibition against unwarranted successive criminal prosecutions within the
meaning of the Double Jeopardy Clauses of the federal and state Constitutions.” State v
Daugherty, 9h Dist. Nos. CA7076, CA7083, 41 Ohio App. 3d 91 (1987).
In Daugherty, the
Court of Appeals held:
In summary, we consider it to be fundamental that:
1. It is grounds for a mistrial when a lawyer in a jury case rests his case, having failed to adduce any admissible evidence of information harmful to his adversary that he has, in the presence of the jury, asserted to be true in a question to and that was denied by an adverse witness where the information is not otherwise in evidence.
2. It is professional misconduct where the information is put before the jury in such form that it appears that the lawyer is putting his own personal credibility into the balance for the jury to consider.
3. Accordingly, where a trial lawyer, under the pretext of putting a question to an adverse witness upon cross-examination, actually asserts to a jury the truth of unproved information substantially harmful to his adversary, the denial by the witness requires the lawyer to produce proper proof thereof. His failure to do so entitles his adversary to a mistrial.
4. The constitutional right to a fair trial in criminal cases makes the above rules applicable to lawyers engaged in a public prosecution. See Berger v. United States (1935), 295 U.S. 78.
In the case at bar, the prosecution "rubbed it in" in final argument, arguing the credibility of the accused and challenging the jury to consider "of what time she did work that day." The record contains other examples of prosecutorial misconduct, probably the result of inexperience, but condoned by the trial judge who was not inexperienced.
Finally, we have considered the entire record of this case in the light of the precedent of United States v. Dinitz (1976), 424 U.S. 600, and conclude that this accused has been sufficiently harassed by unlawful government procedure as to invoke the prohibition against unwarranted successive criminal prosecutions within the meaning of the Double Jeopardy Clauses of the federal and state Constitutions. [Emphasis added.] Id., 93-94.
Daugherty is precisely on point. The
Medina County assistant prosecutor has equaled and exceeded the bad faith
conduct for which the Court of Appeals criticized the State in Daugherty, which had been a sufficient
basis as a bar to retrial under the Double Jeopardy Clauses of the federal and
state constitutions.[1]
Mr.
Hartman has already been tried twice. The Ninth District Court of Appeals has
overturned each of his prior convictions and also commented on the weakness of
the State’s case.
In the
second reversal of Mr. Hartman’s unconstitutional conviction, Judge Moore aptly
observed, “I find it impossible to say
that in a close case such as this one, a jury would have found the defendant
guilty even without the improper comments.”
State v. Hartman, 9th
Dist. No. 12CA0057-M, 2013-Ohio-4407, ¶36.
[1] The State repeatedly asked
witnesses to comment on other witness’ alleged testimony, often misstating the
actual testimony. This practice is not permissible. See Douglas v. Alabama, 380 U.S. 415, 419 (1965). The prosecutor
told Melissa Hartman that Al Leighton apparently saw a weapon (Tr. at 103), and that
“other people” saw Petitioner with a gun around the children. (Tr. at 107). The prosecutor told Melissa Hartman that Al
Leighton said, “Not here. It’s not going to go down this way in my house.” (Tr.
at 196). The prosecutor told Steven Hartman that “Melissa testified” that
Petitioner “physically assaulted” her that day. (Tr. at 565). In fact, it was the prosecutor who “testified”
that Petitioner assaulted Melissa Hartman “that day.” (Tr. at 89, 113). Melissa Hartman actually denied that Petitioner had assaulted her. (Tr. at 113). Melissa Hartman testified that it was she who
had assaulted the Petitioner. (Tr. at 115).
Defendant’s June 29, 2011 Petition
for Post-Conviction Relief, at 146. The
prosecutor repeatedly and continuously interjected himself as a witness into
the case. (Tr. at 72-73, 75-77, 83-84, 86-91, 93-94, 110, 111, 113, 114, 115,
119-20, 131-32, 138, 172-74, 188-89, 194-96, 198, 200-02, 283, 334-35, 553-55,
592, 854-55). Id., at 147. The prosecutors repeatedly expressed their
personal belief or nonbelief in the witness’ testimony. (Tr. at 102, 103, 106,
107, 118, 177-78, 181, 189, 194-95). Id.,
at 148.
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