KYGlockster
Activist Member
Was the request made by you or your attorney? They can't deny you the documentation you have requested, regardless of the pending case. Have you appealed their decision?
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Arrested last night
- Thread starter CharleyCherokee
- Start date
Was the request made by you or your attorney? They can't deny you the documentation you have requested, regardless of the pending case. Have you appealed their decision?
CharleyCherokee
Regular Member
I made the request and I haven't appealed the decision.
self preservation
Regular Member
So what do you need from us? I myself have been eating the same pot of chili for dinner for the last 3 months due to me being poor.(maybe a little exaggeration) But I may be able to throw a few bucks your way if need be. I'm sure that once more details of this case are released, some of the other folks are here will be willing to help.
Actually they have nothing to do with each other. Several agencies have tried to have requesters go through the discovery process, only to learn that its two separate issues.
What did you ask for? This may be something I can help you with, I am somewhat of an open records\meeting guru(I've never lost an appeal yet).
Somethings can be withheld if its part of a pending case, it just depends on what was asked for.
KYGlockster
Activist Member
Of course certain things can, but not what he was wanting. He was requesting dash-cam footage, radio transmissions, and any other audio that would pertain I believe, and this cannot be denied. The material requested concerns him and involved him, and he has every right under law to examine and copy this material. The KSP knows they have screwed themselves, and also know they can deny him and not be held liable when his appeal is approved. All they are doing is passing time, and I don't agree with it.
These charges are so incredibly bogus, and I will be amazed if a prosecutor is ignorant enough to pursue them.
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langzaiguy
Regular Member
Like Gary said, if it is part of a pending case, the request may be denied. Of course if it is used as evidence against him, it must be made accessible to him.
If the charges are dropped, I would assume it would no longer be 'pending'. In this case, charley could use it as evidence in a civil suit.
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If the charges are dropped, I would assume it would no longer be 'pending'. In this case, charley could use it as evidence in a civil suit.
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CharleyCherokee
Regular Member
I won't type out the letter but I will give you the cites they gave. KRS 17.150(2) 81.878(1)(h) OAG's 11-ORD-171, 89-65, 93-ORD-037, and 05-ORD-251. I requested audio, video, written transcripts, radio and cell communications, dash-cam, and NCIS information.
self preservation
Regular Member
Sounds to me that was their nice way of telling you to go f**k yourself. Keep at it. These request can't be denied forever. If you did nothing wrong and they have audio/video, it may exonerate you. Very curious as to where this case goes.
self preservation
Regular Member
My thoughts exactly. Just a case of goverment being goverment. No real rhyme nor reason behind their logic.
Dash-cam footage from an arrest(if it even exist, as many KSP cars no longer have dash cams) can be withheld in pending cases. It would be difficult to withhold the radio transmissions as it shouldn't really contain any evidence having to do with the arrest.
xenophon
Regular Member
Good luck.
KYGlockster
Activist Member
So you are trying to say if the dash-cam footage was needed to show no wrong doing in his criminal case, and was requested by his attorney or him if he was self representing, that he cannot have access to it? I believe that is illogical, as it could be the only thing that proves the charges brought upon him are false. All of the information that he requested can be obtained to show his innocence during his trial. The prosecution could decide not to use the video as evidence because it would show that he has been charged of crimes he has not committed. This does not mean that he cannot have it subpoenaed simply because the prosecutor decides not to use the video as evidence. Just because something will not be given to the defendant through discovery does not mean he does not have access to the evidence that would show he is not guilty and that his rights have been violated; not allowing evidence that is deeply involved in the case at hand would be a deprivation of rights all its own.
ToMang07
Banned
How'd it go?
KYGlockster
Activist Member
Being as I am a student of the law that is precisely the point I was trying to make. I am very much aware of the steps involved in a criminal trial, and aware that a defense attorney needs to make a pretrial Motion for Discovery as soon as possible. When the prosecution delivers the discovery file to the defense, it does not have to contain any and all evidence relevant to the case; this file only has to contain the evidence that the prosecution intends to use to try the defendant, and must also contain lists of witnesses and such. The defense also has the right to enter its own evidence, and it would be prudent for them to have the dash-cam footage (if available) and any and all other evidence that would help prove his innocence. If the defense intends to wait on the prosecution to make their case then they don't have much of a defense to start with.
self preservation
Regular Member
I assume no good word from pre-trial today since we haven't heard from Charlie...
He cannot get it through an open records request. It would have to be through discovery. The law is clear as glass, records related to an active case are exempt from release. They must reveal and make available all exculpatory evidence, through the court processes, not the open records process.
KYGlockster
Activist Member
So you imply that a defense attorney cannot obtain their own evidence? You say that the defense must rely on what the prosecution gives through discovery and nothing else? This would defeat the whole point of having a defense attorney, and everyone could just represent themselves because they will just allow the prosecution to give them whatever evidence they plan to use against them, and if it doesn't contain evidence that would show their innocence when it could be available I guess they will just plea-bargain or accept the sentence they are given? I always thought the court of law was supposed to be fair, and the prosecution was supposed to prove a case beyond a reasonable doubt, and the defense was supposed to show the prosecutions case false with rebuttal. I guess I must have been mistaken.
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What I am saying is that the open records law has exceptions for certain types of records. Records that are part of an active investigation or case are exempt from disclosure through the open records act, its specifically says so in the KRS. If a defense attorney or defendant wants exempt records they must go through the court. Just because a record maybe exempt from public disclosure under the active case exemption that doesn't mean it cannot be obtained using judicial means of discovery and subpoenas. I imagine his attorney, or himself(using the proper filings through the court) will have no problem obtaining each and every one of the records he asked for. If the charges are dropped before they get that far, then the case is no longer active, and once again, he should have no problem getting the records he wants.