RITTGERS 8: Attorneys at. Law 12 East Warren Street Lebanon. Ohio 45MB TEL [513) 932-2115 FAX (513} 934-2201 cot-visor: want-at.? Csun?rvoale?: FILEQ iiUG --I lift 9= 0i - it'l? tit-Arr?; I.) n' t..l I CLERK OF covets STATE OF OHIO, COUNTY OF WARREN IN THE COURT OF COMMON. PLEA-S State of Ohio. Case No. 17CR033292 Plaintiff. Judge Oda v. Motion to Release Grand Jug; Testimony for In Camera Review and Motion to Dismiss Indictment Brooke Skylar RichardsonI Defendant. Now comes defendant. Brooke Skylar Richardson. by and through undersigned counsel, and hereby moves this Honorable Court for the following: (1) an Order- to release grand jury testimony for an in camera inspection pursuant to Crim.R. BE): and (2) an Order dismissing the indictment in the above-captioned case. pursdant to Crim.R. 'due to the defects in the institution of prosecution of this case: to-wit: the State's deprivation of Miss Richardson?s constitutional rights to a fair trial and due process. A memorandum in support of her motion is attached below: however, counsel intends to ?le a supplemental memorandum in further support of her motion to dismiss after the in camera review of the grand jury testimony. Respectfully submitted. RITTGERS Charles H. ittgers. %_00'03020 Charles M. Rittgers. #0086567 Counsel for Defendant 1-2 East Warren Street Lebanon. Ohio- 45036 (513) 932-2115 charlie@rittgers.com MEMORANDUM I. Motion to ReleaSe GrandJum Testimony for Review Disclosure of grand jury?testimony. other than that of the defendant and co- defendant. is controlled by Crim.R. State v. Green 66 Ohio St.2d 139. 420 982. paragraph one of the syllabus (1981). Crim. R. provides, in pertinent part, as follows: Deliberations of the grand jury and the vote of any grand juror shaanot be disclosed A grand juror, prosecuting attorney. interpreter. stenographer. operator of a recording device, or typist who transcribes recorded testimony, may disclose matters occurring before the grand jury. other than the deliberations of a grand jury or the vote of a grand juror. but may disclose such matters so directed by the Court preliminary to or in connection with ajudicial proceeding. or when permitted by the. court at the request of the defendant upon a Showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury (emphasis added) RITTGERS a Adams? at Luw 12 East Warren Sir?el Lebanon; Ohio 45033 TEL (513) 932-2115 FAX {513) 934-2201 means a. Rm'esns Attorneys at Law 12 East Wan-an Street Lebanon. Ohio 45036 TEL (513} 932-2115 FAX (513) 934-2201 Counsel filed a motion to dismiss indictment. pursuant to Cn'm.R. albng with this motion. supra. As the Court is aware. counsel's motion to dismiss indictment is. based on ?inatters occurring befere the grandjury?; to-wit: that the grand jury indicted Miss Richardson based on evidence that included Dr. Elizabeth Murray?s belief. which she has Since recanted, that the bones she examined Were charred. Accordingly. counsel respectfully requests that this Court order the releaSe of the grand jury testimony regarding any mention of scienti?c evidence. Dr. Murray's examination, or Dr. Murray's beliefs based on? her examination for in camera review by all parties as part of its consideration of the attached motion to dismiss indictment. ll. Motion to Dismiss Indictment The indictment in this case should be dismissed due to defects in the ?institution of the prosecution?namely that the State presented material information to the when seeking to indict Miss Richardson that Dr. Murray has since recanted. While the Ohio Rules of Criminal Procedure do not allow for the equivalent of motion for summary judgment on an indictment prior to trial.? State v. Brady. 119 Ohio St.3d 375. 2008-Ohio-4493. Criminal Rule 12 does permit a..'court to consider evidence beyond the face of an indictment when ruling on a pretrial motion to dismiss an indictment if the matter is capable of determination without trial of the generai'issue. Id.. 8. RITTGERS Attorneys at Law 12 [335thar sum Lehman-n 45033 TEL (513) 932-2115 at 113: accord State v. Gaines. Dist, Co. App. No. CA2010-07-011, 951 814. 2011-Ohio-1475. 1117. The motion sub judice ?is capable of determination without trial of the general issue.? The motion does not askthis. Court to-analyze whether the State will be ableto prOve the elements of the offenses listed in indictment. Rather this motion requires this Court to narrowly determine if the State violated Miss Richardson's right to a fair trial and due process. in violation of Cn?m.R. the United States Constitution. and the Ohio Constitution. by presenting information to the grand jury that the State now knows was based on recanted information. in considering counsel's narrowly de?ned R. motion, Crim.R. expressly permits this Court "to consider briefs. affidavits. the proffer of testimony' and other exhibits?; accordingly, this Court can properly consider evidence beyond the face of the indictment in ruling on if the State Violated Miss Richardson's rights to a fair trial and due process. Brady, supra, at 1i18. A. ain?t gonna lie to them, but I sure ain't gonna ,Iie-fot'theml" The indictment and prosecution in this case are defective because both are based on- Dr. Murray?s recanted belief that the bones she examined were charred. On? July 20. 2017, Dr. Murray. a forensic anthropologist, examined the fetal remains at the Montgomery County Coroner's Of?ce at request'of Dr. Susan Allen at MCCO. RITTGERS 8. Attorney; at Law 12 EastWarren Street Lebanon. Ohio 45038 TEL (513) 932-2115 FAX (513} 934-2201 Based on her examination. she informed Dr. Allen. and subseduently the Warren County Prosecutor's Of?ce, that she believed that the bones were charred. As part of the indictment process, a prosecutor only presents evidence to the grand Jury that is impactful. Based on the attached e-mail correspondence between Dr. Murray and Dr. Susan Allen (Exhibit A), Counsel has a good faith reason to believe that the Warren County Prosecutor's Of?ce presented the grand jury with Dr. Murray?s belief that the bones she examined in this case were charred. In fact. Dr. Murray and Dr. Allen refer to Dr. Murray's errOneous belief that the bones were charred as ?a crucial part- of [the Warren County Prosecutor's Of?ce's] game plan." (Exhibit A, pg. 2) However, Dr. Murray realized that her belief that the bones were charred was incorrect after a second examination of the remains on August 17. 2017?after Miss Richardson had already been indicted. Dr. Murray was adamant that, upon a second examination, the bones examined in this case were not charred. She told Dr. Allen that when it came to the Warren County Prosecutor?s of?ce. and. her decision to recent her original opinion that the bones were. burned, ain?t gonna lie to them, but I sure aint? gonna lie for them!? (Exhibit A, pg. 3) While the Warren County Prosecutor?s Office unintentionally presented false information to ?the grandjury in this case. the indictment and prosecution are defective all the same and should be dismissed in aCcofdance with Miss Richardson?s rights t'o-a fair trial and due. process. RITTGERS 8. RITTG ERS Anthracite at Law 12 East Warren Street Labanm.__0bfo 45035 TEL (513) 932-2115 Fax {51 3) 934-2201 99m This motion to dismiss indictment is. properly before this Court because the question of whether Miss Richardson's a fair trial and due process were violated is capable of determination without trial of the general issue of whether Miss Richardson is guilty of the ?ve offenses charged in the indictment. However. the grand jury testimony in this case should be released for an in camera review by all parties. to determine the extent to which the indictment is based on Dr. Murray's, since. recanted, belief that the remains were burned so that counsel may?fully, present argument on his motion to- dismiss indictment pursuant to Crim_.R. Respectfully submitted. RIITTGE-RS Gharies H. Ringers, #0003020 Charles M. Rittgers. #0086567 Counsel for Defendant 12 East Warren Street Lebanon. Ohio 45036 (513) 932?21 15 charlie@rittgers.com CERTIFICATE OF- SERVICE I hereby certify that a copy of the foregoing Motion to Dismiss Indictment was sent by electronic mail to Steven Knippen and Julie Kraft, Warren County Proseoutor?s Charles H. Rittgers Of?ce, on this. 31 st day of July. 201-9. 8. RITTGERS Attorneys at Law 12 E?s! Warm Street Lebanon. Ohio 45086 TEL, 932-2115 FAX (513) 93422201 - Original From: Murray.IEliz_jabe_th [School of Behavioral 8: Natural Sciences] {Sent Wednesday. September 06. 2017 10:52 AM Susan Subject: RE: MCCO Susan. the prose?utor's office seems "upset" with me that wasn't-more. de?nitive aboutthe bur'ninglbut you and] saw what we saw a those bones looked-so different from myJuiy: visit to my August visit -- and we discussed that. I told them that. with microscopy. I might be ableto be more de?nitive, but I wasn't asked to do that. nor was I told? of the impOrtancesof the burning to their case (in order that I might consider doing it). tOid them to Contact you and-see whether you wanted'me to examine these more thoroughly, or whether we should consider sending them to a fellow forensic anthropologist Who specializesin burned bone. Apparently my report has de?nitely upsettheirappleca'rt. but it is what it is, I-cou?ld not say at that-"second visit with a reasonable degree of Certainty that those bones-had, iri fact?. been burned. Couldyou have said that? ltold them that'in my opinion. it was someWhat "of a "lu?cky break? that! saw that. thought told Russell -- and that prompted thezsubsequent search. It is what? it Is. Thanks. and I think they will-be callingyou to-flnd Out what'you think should be done from here. Beth Elizabeth A. Murray. -D.-ABFA Prefessor of'BIology-and Forensi'ofBiological Anthropoiogist Mount 5701 Delhi Road. Cincinnati. OH 45233-1670 Facebook: iDr. ElizabethMurray, Forensic Anthropologist? Website: Phonon-513.244.4948 Fax 513.244t4961 EXHIBIT Ji? From: Allen. Susan [allens@ mcohio.org] Sent: Wednesday. September 06. 2017? 3:00 PM To: Murray. Elizabeth [S'choolio'f Behavioral Natural Sciences] Meet: R'Ez'Mcco I also did not realize it was a crucial part-ofrthelr game plan. If you would like'to do this extra they would like- for you to-do this. it is fine with us?. Do you want'to ask'them if they want- that to would you like for me to talk to Russell about it? They have_not called me aboutany of the findings in?yourreport. Susan: Original message-nu From: Murray, Elizabeth [School of Behavioral-8: Natural Sciences] [mailto:Elizabeth.Murray@ msj,edu] Sent: Wednesday. September 06, 201-7 1:54 PM To: alien. Susan subject: Mcco Susan. Not histology. but dissecting microscopy. If I'd have realized it was socruciai to their game plan. .I would hay'e done it: i have a scope that I can take photos through. I do think? that would clarify things. in my mind. ElizabethA. Murray. Protessor of Biologyand EbrensiclBiologlcal Anthropologist?MoUnt St. Joseph University. 5701 Delhi Road. Cincinnati, OH 45233-1670 Facebook: Dr. Elizabeth Murray. Website: Phone: 513.244.49.48 Fax 513.244.4961 Allen. ?Susan? From: Murray. Elizabeth [School of Behavioral Natural Sciences] Sent: Wednesday. September 06. 2017 fro: Allen.._Susan Subject: Whatever you think best -- I'm happy to do a second exam and addendum to the report. But if Idon't see it. that's what I-have; to say. Which is why you see'that it was my opinion-when [talked to. you guys that it ?appeared" there ?may" have been burning. You and i saw how different the bones looked the second exam. I ain't gonna lie to them. but I sure ain't gonna lie for- them! They said they were meeting at 11:00 and-then would figure out their next steps. I told them I could do a microscdpic exam or recommend someone else to them with far more experience in burned bone. it's their choice. Still. they seem in a hurry for some reason. and my colleague may be months behind in his burned bone censults. I don't know. i even-said to them. whether the bone was burned or not. that baby was still dead. had?uneXplained skull fractures. and was buried in the back. yard. don't understand why the burning takes it up such a notch. They told me it's all about what she said. at one time or another and how her story changed. Well. it'stheir problem. i guess. i am sorry if I spoke out of turn. but it was my strong feeling the bones were burned in July. andthen less so in August - which is perhaps some. basis for always doing asecond look. if we only had time! Makes me wonder-how many other times impressions would have changed a second time around. who knows? Thanks. Susan. Beth Elizabeth A. Murray. D-ABFA Professor of Biology and Forensic/Biological Anthropologist MountSt. Joseph University. 5701 Delhi Road. Cincinnati. OH 45233-1670 Facebook: Dr. EiiZabeth Murray. ForensicAnthropologist Website: Phone 513.244.4948 Fax 513.244.4961