selective prosecution claim in Ohio

2016State v. Keene, 81 Ohio St.3d 646, 653 , 693 N.E.2d 246 (1998).

1998[This opinion has been published in Ohio Official Reports at 81 Ohio St.3d 646 .] THE STATE OF OHIO, APPELLEE, v. KEENE, APPELLANT. [Cite as State v. Keene, 1998-Ohio-342 .] Criminal law—Aggravated murder—Selective-prosecution claim is not defense on the merits to criminal charge—Statistical evidence of racial disparity is insufficient to infer discriminatory purpose—Constitutional right to discovery not established, when—Purposeful discrimination not shown, when—Death penalty upheld, when.

2003We disagree. {¶ 31} In State v. Getsy (1998), 84 Ohio St.3d 180 , 203 , the Ohio Supreme Court reiterated the selective prosecution test, stating: {¶ 32} "In State v. Flynt (1980), 63 Ohio St.2d 132 , 134 , 17 Ohio Op.3d 81, 82 , 407 N.E.2d 15 , 17 , we adopted the following test with regard to selective-prosecution claims: {¶ 33} `To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the

2003We disagree. {¶ 31} In State v. Getsy (1998), 84 Ohio St.3d 180 , 203 , the Ohio Supreme Court reiterated the selective prosecution test, stating: {¶ 32} "In State v. Flynt (1980), 63 Ohio St.2d 132 , 134 , 17 Ohio Op.3d 81, 82 , 407 N.E.2d 15 , 17 , we adopted the following test with regard to selective-prosecution claims: {¶ 33} `To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the

2018Scioto No. 05CA3024, 2006-Ohio-5031 , 2006 WL 2780112 , ¶ 20, this Court reasoned as follows: "We conduct a de novo review of a trial court's decision regarding a motion to dismiss based upon a selective prosecution defense.

2014No. 05CA3024, 2006-Ohio-5031, ¶ 23 .

2013State v. Keene, 81 Ohio St.3d 646, 653 , 1998-Ohio-342 , 693 N.E.2d 246 (1998).

1998[This opinion has been published in Ohio Official Reports at 81 Ohio St.3d 646 .] THE STATE OF OHIO, APPELLEE, v. KEENE, APPELLANT. [Cite as State v. Keene, 1998-Ohio-342 .] Criminal law—Aggravated murder—Selective-prosecution claim is not defense on the merits to criminal charge—Statistical evidence of racial disparity is insufficient to infer discriminatory purpose—Constitutional right to discovery not established, when—Purposeful discrimination not shown, when—Death penalty upheld, when.

1999Nagle v. Olin (1980), 64 Ohio St.2d 341 , 18 O.O.3d 503 , 415 N.E.2d 279 : “[The] selection is ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’ ” (Emphasis added.) Wolery at 325-326 , 75 O.O.2d at 372 , 348 N.E.2d at 358 , quoting Oyler, 368 U.S. at 456 , 82 S.Ct. at 506 , 7 L.Ed.2d at 453 . 3 See, also, 2 LaFave & Israel, Criminal Procedure (1984) 185-203, Section 13.4; Annotation, What Constitutes Such Discriminatory Prosecution or Enforcement of Laws as to Provide Valid Defense in State Criminal Proceedings (1979; Supp.1998), 95

1999Nagle v. Olin (1980), 64 Ohio St.2d 341 , 18 O.O.3d 503 , 415 N.E.2d 279 : “[The] selection is ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’ ” (Emphasis added.) Wolery at 325-326 , 75 O.O.2d at 372 , 348 N.E.2d at 358 , quoting Oyler, 368 U.S. at 456 , 82 S.Ct. at 506 , 7 L.Ed.2d at 453 . 3 See, also, 2 LaFave & Israel, Criminal Procedure (1984) 185-203, Section 13.4; Annotation, What Constitutes Such Discriminatory Prosecution or Enforcement of Laws as to Provide Valid Defense in State Criminal Proceedings (1979; Supp.1998), 95

1999Nagle v. Olin (1980), 64 Ohio St.2d 341 , 18 O.O.3d 503 , 415 N.E.2d 279 : “[The] selection is ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’ ” (Emphasis added.) Wolery at 325-326 , 75 O.O.2d at 372 , 348 N.E.2d at 358 , quoting Oyler, 368 U.S. at 456 , 82 S.Ct. at 506 , 7 L.Ed.2d at 453 . 3 See, also, 2 LaFave & Israel, Criminal Procedure (1984) 185-203, Section 13.4; Annotation, What Constitutes Such Discriminatory Prosecution or Enforcement of Laws as to Provide Valid Defense in State Criminal Proceedings (1979; Supp.1998), 95

1999Nagle v. Olin (1980), 64 Ohio St.2d 341 , 18 O.O.3d 503 , 415 N.E.2d 279 : “[The] selection is ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’ ” (Emphasis added.) Wolery at 325-326 , 75 O.O.2d at 372 , 348 N.E.2d at 358 , quoting Oyler, 368 U.S. at 456 , 82 S.Ct. at 506 , 7 L.Ed.2d at 453 . 3 See, also, 2 LaFave & Israel, Criminal Procedure (1984) 185-203, Section 13.4; Annotation, What Constitutes Such Discriminatory Prosecution or Enforcement of Laws as to Provide Valid Defense in State Criminal Proceedings (1979; Supp.1998), 95

2022Summit No. 23600, 2007-Ohio-4001, ¶ 6 . {¶12} “‘A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.’” State v. Sanchez, 9th Dist.

2013Thus, at the time of the charges the Park District had an agreement concerning the real property owned by Mrs. Taylor. {¶61} In State v. Flynt, 63 Ohio St.2d 132, 134 , 407 N.E.2d 15 (1980) , 451 U.S. 619 , 101 S.Ct. 1958 , 68 L.Ed.2d 489 (1981), the Ohio Supreme Court addressed the elements for establishing a selective-prosecution claim: To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) Holmes County, Case No. 12CA18 20 that, while others similarly situated have not generally been proceeded against be

2013Thus, at the time of the charges the Park District had an agreement concerning the real property owned by Mrs. Taylor. {¶61} In State v. Flynt, 63 Ohio St.2d 132, 134 , 407 N.E.2d 15 (1980) , 451 U.S. 619 , 101 S.Ct. 1958 , 68 L.Ed.2d 489 (1981), the Ohio Supreme Court addressed the elements for establishing a selective-prosecution claim: To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) Holmes County, Case No. 12CA18 20 that, while others similarly situated have not generally been proceeded against be

2006Powell further asserts that he was entitled to present a "sloppy police work" defense in light of Arthur Anderson v. United States (2005), 544 U.S. 696 . {¶ 20} We conduct a de novo review of a trial court's decision regarding a motion to dismiss based upon a selective prosecution defense.

2006Rather, `[a] hearing is necessary only when the motion alleges sufficient facts to take the question past the frivolous state and raises a reasonable doubt as to the prosecutor's purpose.' United States v. Larson, 612 F.2d 1301 , 1304-05 (8th Cir. 1980)." Thus, "[i]n order to warrant an oral hearing, the defendant must show sufficient facts to take the question past the frivolous state and raise a reasonable doubt as to the prosecutor's motive and purpose; the defendant must demonstrate a `colorable entitlement' to a selective prosecution claim." Spencer, supra; see, also, State v. Keene (Sept

2005Although a selective-prosecution claim is not a defense on the merits to the criminal charge itself, a defendant may raise it as an `independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.' State v. Getsy (1998), 84 Ohio St.3d 180 , 203 , 1998-Ohio-533 .

2004Selective prosecution violates the Equal Protection Clause when it is “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Oyler v. Boles (1962), 368 U.S. 448, 456 , 82 S.Ct. 501 , 7 L.Ed.2d 446 ; Snowden v. Hughes (1944), 321 U.S. 1 , 64 S.Ct. 397 , 88 L.Ed. 497 ; Yick Wo v. Hopkins (1886), 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 . {¶ 5} In establishment of a selective-prosecution claim, a defendant must show that the prosecution had a discriminatory effect and that the prosecution was motivated by a discriminatory purpose.

2004Selective prosecution violates the Equal Protection Clause when it is “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Oyler v. Boles (1962), 368 U.S. 448, 456 , 82 S.Ct. 501 , 7 L.Ed.2d 446 ; Snowden v. Hughes (1944), 321 U.S. 1 , 64 S.Ct. 397 , 88 L.Ed. 497 ; Yick Wo v. Hopkins (1886), 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 . {¶ 5} In establishment of a selective-prosecution claim, a defendant must show that the prosecution had a discriminatory effect and that the prosecution was motivated by a discriminatory purpose.

2004Selective prosecution violates the Equal Protection Clause when it is “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Oyler v. Boles (1962), 368 U.S. 448, 456 , 82 S.Ct. 501 , 7 L.Ed.2d 446 ; Snowden v. Hughes (1944), 321 U.S. 1 , 64 S.Ct. 397 , 88 L.Ed. 497 ; Yick Wo v. Hopkins (1886), 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 . {¶ 5} In establishment of a selective-prosecution claim, a defendant must show that the prosecution had a discriminatory effect and that the prosecution was motivated by a discriminatory purpose.

2004Selective prosecution violates the Equal Protection Clause when it is “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Oyler v. Boles (1962), 368 U.S. 448, 456 , 82 S.Ct. 501 , 7 L.Ed.2d 446 ; Snowden v. Hughes (1944), 321 U.S. 1 , 64 S.Ct. 397 , 88 L.Ed. 497 ; Yick Wo v. Hopkins (1886), 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 . {¶ 5} In establishment of a selective-prosecution claim, a defendant must show that the prosecution had a discriminatory effect and that the prosecution was motivated by a discriminatory purpose.

2004Selective prosecution violates the Equal Protection Clause when it is “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Oyler v. Boles (1962), 368 U.S. 448, 456 , 82 S.Ct. 501 , 7 L.Ed.2d 446 ; Snowden v. Hughes (1944), 321 U.S. 1 , 64 S.Ct. 397 , 88 L.Ed. 497 ; Yick Wo v. Hopkins (1886), 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 . {¶ 5} In establishment of a selective-prosecution claim, a defendant must show that the prosecution had a discriminatory effect and that the prosecution was motivated by a discriminatory purpose.

2004Fourteenth Amendment to the United States Constitution; United States v. Tucor Internatl., Inc. (N.D.Cal. 1998), 35 F.Supp.2d 1172 , affirmed on other grounds (C.A.9, 1999), 189 F.3d 834 .

2004Fourteenth Amendment to the United States Constitution; United States v. Tucor Internatl., Inc. (N.D.Cal. 1998), 35 F.Supp.2d 1172 , affirmed on other grounds (C.A.9, 1999), 189 F.3d 834 .

1998Instead, his claim is that the death penalty may not be applied because the prosecutor sought it “for reasons forbidden by the Constitution.” Id. {¶ 29} We conclude that evidence relevant to a selective-prosecution claim is not “favorable to an accused [and] * * * material either to guilt or to punishment” within the meaning of Brady and Crim.R. 16(B)(1)(f); therefore, such evidence is not discoverable under the rule. {¶ 30} Having rejected appellant’s state-law claim, we must assess appellant’s claim that the trial judge had a constitutional obligation to allow discovery. {¶ 31} In United Sta