Here is one of my all time favorites, something many lawyers actually want to say to many judges. Unfortunately, it also got this very good lawyer (who also happens to be a friend of mine) suspended.
I have edited out the names (XXXX) and substituted "State" for the actual state's name.
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Now comes Defendant-Appellant, by and through undersigned counsel, and moves this panel to reconsider its opinion issued on February 1, 2001, or in the alternative, to certify a conflict between this panel's opinion and that rendered by another district to the State Supreme Court.
The basis of this motion is that this panel's opinion is not only illogical, it is also dishonest. It is dishonest in that not only is well-established law being ignored, but also in its recitation of the facts, and more significantly, the facts omitted from the opinion. It is the most result-driven opinion this attorney has ever read. It is an opinion that any learned fair-minded judge should be ashamed to attach his/her name to.
I don't imagine this panel gives a damn about how wrong, disingenuous and biased its opinion is. But there is indisputably a conflict between this panel's opinion and that of Clark County Court of Appeals case of State v. Jackson (1992), [citation omited], where the 2nd District ruled that a de facto amendment from "driving under a court suspension" in violation of R.C. §4507.02(D)(1) to "driving without paying a reinstatement fee" in violation of R.C. §4507.02(C) was improper and illegal.
Furthermore, this panel should - at this point in their collective legal careers - understand that the UTT (also know as a traffic ticket) is the charging document in all traffic matters. According to the law - at least in fair-minded [State] appellate districts where this panel does not sit - the UTT is the charging document that is supposed to place Defendants on notice of exactly what offenses they have been accused of having violated.
No matter how bad this panel wants to skew or ignore the facts of this case, there is no question - no question - that Mr. XXXX was charged with DUS-FRA and running a traffic light. Why is there no question? Because that's what the ticket said!! Imagine that, the traffic ticket (i.e., charging document) actually says that!! Isn't that good enough for this panel?
The officer completing the traffic ticket actually wrote down "Red Light" and "FRA 4-27-99 à 4-27-02." He also wrote down that he was charging Mr. XXXX with just two offenses. Not three! Not four! Not all five of the DUS offenses listed under L.C.O. §335.07. Or perhaps this panel actually "honestly" believes that Mr. XXXX was charged with six offenses, the five that are listed under L.C.O. §335.07 and the red light offense? The officer did not write on the ticket (i.e., did not allege) that Mr. XXXX with driving under a court suspension. Honestly. Read the traffic ticket issued to Mr. XXXX. Or doesn't this panel care about this fact?
Well then, exactly what type of DUS offense did Mr. XXXX reasonably believe he was charged with having violated? Could it possibly be the one that was spelled out for him on the ticket by the arresting officer, i.e., FRA 4-27-99 à 4-27-02?, and that he was actually prosecuted for (but not convicted of)? No. Banish the thought. Actually reading the words written by the charging officer on the ticket to see what offense you're charged with would have been both stupid and dishonest of Mr. XXXX. Right? Isn't that this panel's legal theory?
Apparently, according to this esteemed panel, actually reading the plain English written on the traffic ticket would constitute unreasonable and perhaps even irrational action. Better that Mr. XXXX would have pulled out dice and assigned various uncharged offenses to each number (1 = murder; 2 = DUI, 3 = sexual imposition, etc) and just roll it. Whatever number comes up, best three out of five, that's the offense Mr. XXXX will defend himself on. Charging document be damned!! Explicit language be damned. Honesty and truth be damned. After all, a traffic ticket is just a bunch of letters, words and numbers strewn together that does not mean anything. Right?
Mr. XXXX, as well as defense counsel, knew that he was charged with DUS-FRA, and not DUS-Court Suspension. It said so on the traffic ticket. The arresting officer knew he was charging Mr. XXXX with DUS-FRA, which is why he wrote under Type of Suspension, "FRA: 4-27-99 à 4-27-02." This fact is born out from his testimony. The prosecutor likewise knew he was prosecuting a DUS-FRA case, that's why in his direct examination of the officer he presented evidence exclusively addressing Mr. XXXX's FRA situation. In fact, the prosecutor actually admitted that Mr. XXXX was in fact charged with DUS-FRA at oral argument before this panel!! Of course, this fair and non-prosecutorial minded panel ignored that quote, but was able to summon up the courage to quote defense counsel that "if [Mr. XXXX] was charged under driving under a court suspension, there's little doubt he would be found guilty." How fair. How completely neutral and just of this panel. And by the way, even the trial judge knew that Mr XXXX was charged with DUS-FRA, which is why he said on the record, "The ticket was on a FRA suspension." (Trial transcript page 19, line 22 &23) So why in the name of truth and decency can't this panel acknowledge what everyone else knows is the simple unquestionable truth? Mr. XXXX was charged with a DUS-FRA and not a DUS-Court Suspension. Is this panel's desire to be "tough on crime" blinding it to basic law and fairness? Why does this panel only apply the law as a hammer to crush citizens and not as a shield to protect their basic rights? Is having a prosecutorial bent that to hard to let go of that the truth must be cast aside to achieve a particular result?
This panel distorted the truth - yes, it manufactured a gross and malicious distortion - when it wrote "In the present case, contrary to the assertion of the appellant, the appellant was not charged with a violation of section 335.07(a) of the Lakewood Codified Ordinances." This panel knows - as does everyone else associated with this case - what Mr. XXXX was charged with. Or perhaps this panel is now sanctioning police officers charging citizens with a violation of "Chapter 4511." Why specify what the offense is? Let the accused do all the work. Right? That makes good sense. It's also fair, right? Check the "satisfied" box on the Due Process and Notice requirements. Better yet, all officers should now just write on the UTT that a violation of "Title 45" occurred. That's the way to do it. Right?
Wouldn't it be nice if this panel had the basic decency and honesty to write and acknowledge these simple unquestionable truths in its opinion? Would writing an opinion that actually reflected the truth be that hard? Must this panel's desire to achieve a particular result - upholding a wrongful conviction of a man who was unquestionable guilty of an uncharged offense - necessarily justify its own corruption of the law and truth? Doesn't an oath to uphold and follow the law mean anything to this panel?
Is that claim that "We are a nation of laws, not men" have any meaning after reading this panel's decision? Can't this panel have the decency to actually address - rather than to ignore - the cases cited by Mr. XXXX which demonstrate beyond any doubt that he was convicted of an offense he was never charged with having violated?
In this case, beyond the ignored concepts of the law and truth, lies that of policy. As a policy matter, is this court really encouraging all officers in the Eighth District to charge the generic statute - or Chapter or Title - and not the particular offense they are accusing a citizen of violating? In the name of God, WHY? What is so difficult with a police officer doing his job in an intelligent manner? Why must this panel bend over backwards and ignore well established law just to encourage law enforcement officers to be slovenly and careless? In State v. XXXX (2000), [citation omited] didn't the State Supreme Court just state that officers actually have to follow the rules strictly? Doesn't that mean anything to this panel?
Perhaps, if this panel is not strong enough to admit its obvious prosecutorial bias in its opinion, it will discover the internal fortitude to certify this matter to the State Supreme Court under Rule IV of the Rules of Practice of the Supreme Court of State.
Ever So Respectfully Submitted,
Troy
