DKT.NO. FST-CR20- 7 SUPERIOR COURT DKT.NO. FST-CR19-0148554-T DKT.NO. FST-CR19-0167343-T : J.D. of STAMFORD i: AT STAMFORD STATE OF CONNECTICUT Vv. FOTIS DULOS : JANUARY 8, 2020 MOTION TO DISMISS. The defendant, through counsel, respectfully requests that the Court dismiss all of the charges against him on the grounds that he has not properly been indicted by a grand jury pursuant to the Fifth Amendment to the United States Constitution. He raises this claim pursuant to Practice Book §§ 41-8(1), 41-8(5), and 41-8(9). The defendants stands charged with five infamous crimes or felonies: Felony Murder in violation of Conn. Gen. Stat. § 53a-54c, Murder in violation of Conn. Gen. Stat. § 53a-54a, Kidnapping in the First Degree in violation of Conn. Gen. Stat. ¥ 534-92, Tampering With Physical Evidence in violation of Conn. Gen. Stat. § 53a-155, and Hindering Prosecution In The First Degree in violation of Conn. Gen. Stat. § §3a-165aa. Each of these charges is a felony that carries prison time, thus placing them squarely within the meaning of the term “infamous” in the Fifth Amendment. The State chose to charge Mr. Dulos without indicting him by grand jury —a flagrant disregard for the rights guaranteed to him by the Fifth Amendment. Moreover, the State's charging decision reflects why the Framers of the federal constitution placed such importance on a defendant's right to be indicted by a grand jury before being charged. The State has blindly stacked charges against Mr. Dulos in hopes that one charge will fortuitously stick. The reality is that State does not possess the evidence necessary forthe modem incorporation doctrine under the Due Process Clause of the Fourteenth ‘Amendment. The Supreme Court marked this era by emphatically declaring that the Bill of Rights did not apply to the states in United States v. Cruikshank, 92 U.S. 542 (1876). The two rights at issue in Cruikshank? The right to free speech under the First Amendment and the right to bear arms under the Second Amendment. Both the First Amendment and the Second Amendment were incorporated against the states through the Fourteenth Amendment's Due Process Clause when the Supreme Court had occasion to revisit them. See Gitlow v. New York, 268 U.S. 652 (1925) (incorporating the First Amendment); McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporating the ‘Second Amendment). Based on the Supreme Court's incorporation precedents, the Fifth ‘Amendment's right to grand jury indictment is properly incorporated against the states and should control this motion to dismiss. Just like the Second Amendment's 130-year odyssey from Cruikshank to McDonald, Hurtado does not stand because of its substantive correctness, but rather because of a blind faith in the controlling weight of precedent. Indeed, during oral argument in the Supreme Court's last incorporation case, Timbs v. Indiana, 139 S.Ct. 682 (2019), Justices Gorsuch, Kagan, and Kavanaugh pressed the Indiana Solicitor General ‘on whether he could offer any justification for not incorporating any part of the Bill of Rights. The Indiana Solicitor General could offer no reason, and, with good reason. The ‘Supreme Court's incorporation precedents as well as the text, history, and tradition of the Fourteenth Amendment leave no doubt that each and every part of the Bill of Rights would be incorporated against the States to preserve individual rights.any of its charges to withstand scrutiny by an average, impartial person in a grand jury proceeding. FACTUAL BASIS The Defendant, Fotis Dulos, was first arrested on June 2, 2019 pursuant to a warrant charging him with one count of Tampering with Physical Evidence, pursuant to Conn. Gen. Stat. § §3a-155, and one count of Hindering Prosecution in the First Degree, pursuant to Conn. Gen. Stat. § 53a-165aa. He was arraigned on the basis of an information instead of a grand jury indictment. On January 7, 2020, the State arrested Mr. Dulos again pursuant to a warrant charging him with Felony Murder in violation of Conn. Gen. Stat. § 53a-54c, Murder in violation of Conn. Gen. Stat. § 53a-54a, and Kidnapping in the First Degree in violation of Conn. Gen. Stat. ]§3a-92. Mr. Dulos has been arraigned on the basis of an information, not a grand jury indictment. LEGAL BASIS FOR DISMISSAL “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger...” U.S. Const. Amend. V. A. The U.S. Supreme Court's Incorporation Precedents Require That The Fifth Amendment's Grand Jury Indictment Clause Be Incorporated Against The State. In Hurtado v. California, 110 U.S. 517 (1884), the United States Supreme Court declined to incorporate the Fifth Amendment's grand jury clause against the states. However, Hurtado came in the era of the Slaughter-House Cases, 83 U.S. 36 (1873) where the United States Supreme Court, having rejected an incorporation approach using the Privileges or Immunities Clause of the Fourteenth Amendment, had not yet developedIn Timbs, Justice Ginsburg, writing for the Court, stated that “[a] Bill of Rights protection is incorporated... if it is fundamental to our scheme of ordered liberty,’ or ‘deeply rooted in this Nation's history and tradition.” Timbs v. Indiana, 139 S.Ct. 682, 687 (2019) (quoting McDonald v. City of Chicago, 561 U.S. 742, 767 (2010). In Timbs, the ‘Supreme Court looked to the Magna Carta to determine whether the Excessive Fines Clause of the Eighth Amendment was incorporated against the states and found its inclusion in the Magna Carta strongly supportive of the conclusion that the right was “deeply rooted in this Nation’s history and tradition." /d. at 687-88. Not only is the right to a grand jury indictment explicitly recognized in Article 61 of the 1215 Magna Carta, but grand juries predate the Magna Carta, dating back the Assize of Clarendon in 1166. Moreover, the Supreme Court recognized that “although state systems of criminal procedure differ greatly among themselves, the grand jury is similarly guaranteed by many state constitutions and plays an important role in fair and effective law enforcement in the overwhelming majority of the States.” Branzburg v. Hayes, 408 U.S. 665, 687-88 (1972). Indeed, most states had grand jury guarantees in their state constitutions or through their common law prior to the adoption of the Bill of Rights. Consequently, the evidence is overwhelming that the right to a grand jury indictment is “deeply rooted in this Nation's history and tradition.” Furthermore, the Supreme Court has recognized just how important the grand jury is in our “scheme of ordered liberty.” In Wood v. Georgia, the Court declared as follows: Historically, this body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.370 U.S. 375, 390 (1962). The State's treatment of Mr. Dulos has been hasty and oppressive — the hallmarks of an intimidating power. Mr. Dulos has constitutional rights — the right to remain silent, the right to speak freely, and the right to effective counsel. Mr. Dulos has been bold enough to exercise those rights to the intense chagrin of the State. Consequently, the ‘State has used intimidation tactics and outright force to dissuade and interfere with Mr. Dulos’ exercise of his constitutional rights. The State charged, by information, Mr. Dulos with Hindering Prosecution — a crime that requires that Mr. Dulos “rendered] criminal assistance to another person who has committed a class A or B felony or an unclassified felony for which the maximum penalty is imprisonment for more than ten years.” Conn. Gen. Stat. § 53a-165. The State failed to even establish a prima facie case tor the charge by failing to present any evidence of another person committing a class A or B felony. When Mr. Dulos chose to voice his opinions about the disappearance of his estranged wife and the State's failures, including their continued failure to solve the disappearance of his wife and their continued recitation of “law enforcement beliefs,” the State could not handle the truth. The State sought to shut Mr. Dulos up by virtue of an unconstitutional gag order, which it has briefly succeeded in doing pending action from the Connecticut ‘Supreme Court. Now, the State seeks to remedy its own investigative shortcomings and to interfere with Mr. Dulos’ oft-repeated assertion that he will assert his trial rights by stacking the charges against him without providing enough evidence to support a theory of the heinous crime that they have accused him of. The State's goal is simple: to disincentivize Mr. Dulos from confronting the State in a trial and pursuing a vigorous defense by forcing him to think twice about the penalties that he would risk by going totrial. In doing so, the State failed to assemble adequate evidence to charge Mr. Dulos with the crimes it has — a failure that a grand jury would remedy. In the face of the State's hostility and attempt to intimidate him, Mr. Dulos tums to where he always has tured: his constitutional rights. Mr. Dulos has a Fifth Amendment right to only confront charges brought against him by the indictment of a grand jury. This fight is deeply rooted in our nation’s history and tradition and is fundamental in our scheme of ordered liberty. Mr. Dulos requests its protection. B. The Crimes That The State Has Charged Mr. Dulos With Fall Within The Meaning Of The Term “Infamous” In The Fifth Amendment. All of the crimes with which the State has charged Mr. Dulos are infamous crimes. The U.S. Supreme Court clearly defined what attached infamy to a crime in Mackin v. United States, 117 U.S. 348. 354 (1886): “Infamous crimes’ are thus, in the most explicit words, defined to be those ‘punishable by imprisonment in the penitentiary.” The ‘Supreme Court reaffirmed this interpretation in 1958 in Green v. U.S., 356 U.S. 165, 183 (1958) (‘Since an ‘infamous crime’ within the meaning of the Amendment is one punishable by imprisonment in a penitentiary...”). Consequently, the incorporated Fifth Amendment's Grand Jury Indictment Clause requires a grand jury indictment for every criminal charge that carries the risk of prison time. The five felonies that Mr. Dulos was charged with all carry the prospect of prison time if he is convicted. Thus, they clearly fall within the meaning of the term “infamous” in the Fifth Amendment. Consequently, all of the charges against Mr. Dulos should be dismissed unconstitutional because they were brought by information instead of a grand jury indictment.CONCLUSION The Defendant, Fotis Dulos, requests that the Court dismiss alll of the charges against him because the State failed to bring any of the charges by the indictment of a grand jury as required by the Fifth Amendment. The Defendant, Fotis Dulos BY: /S/NORMAN A. PATTIS_/S/ ¢S/KEVIN SMITH __/S/ (S/ ZACHARY REILAND _/S/ {S/ CHRISTOPHER LA TRONICA /S/ Cameron L. Atkinson, Certified Legal Intern His Attorneys PATTIS & SMITH, LLC 383 Orange Street, First Floor New Haven, CT 06511 V: 203-393-3017 F: 203-393-9745 isandsmith.com ksmith@ pattisandsmith.com zreiland @pattisandsmith.com clatronica @pattisandsmith.com