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Thread: Unlawfully arrested?

  1. #1
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    Unlawfully arrested?

    This post was originally deleted by editing, at the urging of multiple members of this thread. However, the time has come to go public about my ordeal, with as much detail as possible, so that more people can come to understand what happened the night of 8/30/12.

    This was copied from my post on the OFCC thread about my arrest:

    You may have already seen the video I took (until my phone was confiscated) of my open carry stop on 8/30/12. I am starting this new thread to give you some background, and more details, for a more complete story: I’m 22 years old and go to college in Youngstown, Ohio. Since I am a Pennsylvania resident and can’t get an Ohio CCW license, I decided to study open carry. After reading a number of articles and forums, I decided I would open carry, but if I was stopped by the police I would try to cooperate, rather than challenge. That didn’t work so well.

    On August 30th, 2012, at around 10:40 PM, I openly carried my Beretta 92A1 9mm with the intention of walking to a nearby McDonalds to get a late dinner. About 5 minutes into that walk, (10:45), I was detained by Officer Menichini of the Youngstown City Police department. I say "detained" because the officer briefly pulsed his overhead lights as he was driving behind me. Up until that moment, i assumed the car i heard behind me was just another person traveling on the roadway. The video picks up just after the officer gets out of his car.

    http://www.youtube.com/watch?v=lOSocHUR ... e=youtu.be

    Immediately following the end of this video, I was pushed against the police cruiser and searched, by a Det/Sgt John Payne of the Youngstown City Police (the officer who took my phone from me), who found that I was carrying a Gerber paraframe 4 inch, non serrated, stainless steel finish pocketknife, clipped to the outside of my belt, behind my left handed holster. Analysis of the audio i received as a result of my records request shows that i was off in my estimation of the total detainment time between the pulsed lights and the formal arrest. It was about 25 minutes later, (not my initial estimation of 40-45) at 11:09, after sitting in the back of a police car listening to a number of officers discuss what they could charge me with, that I was charged with CCW for the knife, and a jaywalking ticket, presumably to give the officer RAS for the stop and search. During the intervening time, the officers had called YSU officials (on a line that was not recorded), as well as someone* in the police department, to discuss possible avenues of prosecution. Both of these calls occurred after i had been searched, and after i was put in the back of the car, without handcuffs, but also without being accused of a crime.

    Being charged with a crime is not like in Law and Order. When you are charged with a crime, you’re handcuffed and tossed into the back of a police cruiser, with no seatbelt. You’re taken to jail and made to stand with your hands on a table while you are touched in inappropriate places by men you have never seen before. You’re tossed in a concrete room for hours, fingerprinted, photographed, and told you have mere hours to sleep and prepare for your arraignment. You’re told to plead with next to no counsel, and are asked, publicly, by a judge about your financial situation and ability to shell out thousands of dollars for an attorney. After all of this, you are told by that attorney to go home, to await the pre-trial. And then you wait.

    Perhaps the cruelest part of all this is the waiting. It’s been two months so far, with my pictures online, my name plastered on the local news, and my record smeared with an arrest for a crime that I not only didn’t commit, but that the police had no RAS to stop me for in the first place. I’m still waiting, waiting and, frankly, hoping, that I made the right choice in how I acted during that initial encounter. My video, and the choices I made during it, are my only defense. It may be partly bitterness, and i apologize if so, but I can't help thinking that if I had acted differently, if I had flexed my rights, things may have turned out differently, and possibly for the better.

    My hope is that my story will serve as a counter-argument to the assurances of others - that if you cooperate you will not be harassed further or charged, or that if you are, the charges will quickly be dropped. I also hope that those same people will be the first to step forward and assist me. As can be clearly seen, I was not only cooperative, but also reasonable and accommodating. I wasn’t committing a crime, I was hungry. I didn’t feel I had anything to hide, so I trusted the police to be as law-abiding as I was. But it’s clear that I was wrong to do so.

    There have been two hearings so far – prior to the first, my court-appointed attorney asked me to waive time because she felt that the prosecutor would see that the charges against me were bogus – arising from police officers opposition to the act of open carry rather than actual law enforcement.. Unfortunately, that didn’t work, so at the hearing this past Tuesday, Oct. 23, I was asked to waive time again. This time my attorney told me that the prosecutor wanted to review my videotape. I asked her what my options were, and she said she could probably have it resolved quickly if I plead guilty to disorderly conduct. I didn’t feel that was an real option, and didn’t ask what would happen if I refused to waive time again, so I agreed.

    Right now I feel like I’m being played with, that despite my cooperation I’m just the latest victim of police and prosecutors who either don’t know the law, or know it and use their protection (immunity) against those who do things they don’t like. I am working on getting the police report in a form that I can post, and also to get the radio transmissions to and from dispatch transcribed accurately.

    I will be at work for the rest of the day, but will visit this page as often as i can in the coming days. In the meanwhile I’m open to all suggestions, and thank you.

    ~End copy

    *:The audio of this call was recorded, and will be released to youtube later today, with an on-screen transcription of what was said. Check back in an hour or two.
    Last edited by Michael Porschien; 10-29-2012 at 02:23 PM.

  2. #2
    Regular Member SFCRetired's Avatar
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    1. Delete your post.

    2. Get a lawyer.

    3. KYBMS unless and until the lawyer tells you to open it and tells you what to say.
    "Happiness is a warm shotgun!!"
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  3. #3
    Regular Member EMNofSeattle's Avatar
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    Yes delete this post and/or ask a mod to delete it, you need to be concerned that anything you say in public can hurt your case.

    Find a lawyer and don't post anything more on this forum unless your attorney clears it first.

    Assuming everything you're telling us is the truth, the whole truth, and nothing but the truth yes that is most certainly false arrest. unfortunatly getting your gun back will probably take some time, expect them to fight it the whole way.

    and if you're still reading GET THIS POST DELETED FOR YOUR OWN LEGAL INTEREST PRONTO
    Last edited by EMNofSeattle; 09-21-2012 at 06:04 PM.
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  4. #4
    Regular Member twoskinsonemanns's Avatar
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    Heh heh. Man it must be great to be a cop.... If your first crime is to murder your own conscience.

    Charges will probably be dropped. If not you'll be acquitted.
    The goal is to keep people from being armed. And punish you financially.
    They have your gun and you will probably never see it again.
    Sure you have a great lawsuit, the damages if you win might be enough to cover your fees, time and a new gun but I doubt it.
    "I support the ban on assault weapons" - Donald Trump

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  5. #5
    Regular Member Fallschirmjäger's Avatar
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    Bad stop, definitely actionable in civil court.

    At a MINIMUM you want the record of the arrest expunged, and that's going to take court action. As a civil case damages will usually include the losing party paying your expenses, to include lawyer fees.

    I'm not sure if his schedule would allow, but you may wish to contact John R. Monroe.
    Last edited by Fallschirmjäger; 09-21-2012 at 08:22 PM.

  6. #6
    Moderator / Administrator Grapeshot's Avatar
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    Some points need to be made

    First I moved this thread from General Discussion to the Ohio sub-forum because applicable laws are state specific.

    Observations: We have a first time poster who has some reasonably good knowledge of OC lingo, procedures, etc. who offers certain unsubstantiated claims - no arrest papers, no court reference numbers, nada , but we should give him benefit of the doubt, right?

    He also states he has an attorney and has had a preliminary hearing so there can be but little doubt that he has interacted with said attorney. Then he asks us if we think he has a good civil case - why not ask his attorney(?), we are not attorneys.

    Strange too in that one of the first things a good attorney would have done is to tell him he should discuss this with no one not approved by his councilor.

    The dramatic style and egregious actions described, w/o no more than personal claim to veracity, have been seen before...many times. In fact much of this situation follows precisely another previous such claim. The OP must understand that when a previously unknown poster pops in out of nowhere with such a grand tale, our experience has been that they are almost always manufactured, false.

    Let's be very clear on one point here - I am not accusing the OP of being an agent provocateur. I am saying that the spots and strips are there and that tangible, verifiable, public information needs to be tendered to confirm.

    Those of you who familiar with me, know that I'll be one of the first ones to step up and help someone who had a run in with the "system" with a questionable charge, The jury is still out as to whether this is a work of fiction or something deserving of our attention.

    I'll wait and see.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

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  7. #7
    Regular Member Fuller Malarkey's Avatar
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    Well, Grapeshot, how about a this:

    Police arrested Michael Porschien, 22, of Ohio Avenue at 10:50 p.m. Thursday at Madison and Michigan avenues on the North Side on a misdemeanor charge of carrying a concealed weapon for purportedly having a concealed knife.

    Police were on patrol when they saw Porschien walking on the north side of Madison Avenue with a large handgun in a holster on his left hip.

    An officer approached Porschien and asked him why he was carrying a firearm, and Porschien said he was “open carrying,” adding that the reason was because “this is a dangerous town.”

    For safety, officers placed the loaded firearm in a police cruiser while they patted Porschien down and found a concealed knife clipped to his belt and covered by his T-shirt
    .

    On-line version of the Youngstown News


    http://www.vindy.com/news/2012/sep/0...ycling/?mobile


    BTW Michael, welcome aboard. It took me about 4 seconds to find out you were telling the truth about the incident. PM me your email address in case someone decides you should be banned or something. As of now, I find you worthy of support and I'm willing to offer mine.
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  8. #8
    Regular Member twoskinsonemanns's Avatar
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    Seems like a blatant admission that they did not have RAS to stop him...
    "I support the ban on assault weapons" - Donald Trump

    We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do anything it pleases, while the citizens may act only by permission - Ayn Rand

  9. #9
    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by Fuller Malarkey View Post
    Well, Grapeshot, how about a this:

    Police arrested Michael Porschien, 22, of Ohio Avenue at 10:50 p.m. Thursday at Madison and Michigan avenues on the North Side on a misdemeanor charge of carrying a concealed weapon for purportedly having a concealed knife.

    Police were on patrol when they saw Porschien walking on the north side of Madison Avenue with a large handgun in a holster on his left hip.

    An officer approached Porschien and asked him why he was carrying a firearm, and Porschien said he was “open carrying,” adding that the reason was because “this is a dangerous town.”

    For safety, officers placed the loaded firearm in a police cruiser while they patted Porschien down and found a concealed knife clipped to his belt and covered by his T-shirt
    .

    On-line version of the Youngstown News


    http://www.vindy.com/news/2012/sep/0...ycling/?mobile


    BTW Michael, welcome aboard. It took me about 4 seconds to find out you were telling the truth about the incident. PM me your email address in case someone decides you should be banned or something. As of now, I find you worthy of support and I'm willing to offer mine.
    That is exactly the type of thing that is needed and I thank you for providing it.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

  10. #10
    Regular Member MKEgal's Avatar
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    Quote Originally Posted by Fallschirmjäger
    Bad stop, definitely actionable in civil court.
    I'm not sure if his schedule would allow, but you may wish to contact John R. Monroe.
    I will second (& third, & fourth) contacting John once the criminal charges are dismissed & you're ready for collecting damages.
    He's very experienced, good, professional, pro-rights, & a genuinely nice person.
    Contacting him won't cost you a thing.
    If you choose to work with him, starting the ball rolling on the federal civil rights suit might be a few hundred $, but you'll eventually get it back from the city, along with his fees being paid by them.

    ETA: if you want more people giving character references for John, pop into the Wisconsin forum (or just search for his name within it).
    Last edited by MKEgal; 09-21-2012 at 10:33 PM.

  11. #11
    Accomplished Advocate BB62's Avatar
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    Quote Originally Posted by Michael Porschien View Post
    ...
    Michael,

    During the time period before the charge is dismissed (IF it is), AND if there is a possibility you will file a Federal lawsuit - for God's sake DELETE YOUR POST.

    Consider yourself warned - again.
    Last edited by BB62; 09-21-2012 at 11:00 PM.

  12. #12
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    Responses Part 1

    Quote Originally Posted by Grapeshot View Post

    Observations: We have a first time poster who has some reasonably good knowledge of OC lingo, procedures, etc...
    I'll admit, i have visited this forum a few times to read stories, and I am relatively up to date on the lingo, though "KYBMS" took a quick googling to understand the "B"
    Quote Originally Posted by Grapeshot View Post

    He also states he has an attorney and has had a preliminary hearing so there can be but little doubt that he has interacted with said attorney. Then he asks us if we think he has a good civil case - why not ask his attorney(?), we are not attorneys.
    My attorney is court appointed, and while i trust her, democracy has proven thousands of times that when enough people spit out enough ideas, some of them are bound to be good. Thus, the internet: a universal think tank for stuff i haven't thought of yet. Also, my criminal attorney has not once broached the topic of civil cases, and any civil lawyer wont touch base until all charges have been dropped.

    Quote Originally Posted by Grapeshot View Post
    Strange too in that one of the first things a good attorney would have done is to tell him he should discuss this with no one not approved by his councilor.
    I was never told anything of the kind, although i was somewhat hesitant to do this. I chose to because i felt the risks were outweighed by the potential insight i could gain. Plus, as mentioned above, my attorney was very specific about not talking civil matters, which is what I'm interested in. The criminal charges will be dropped; the evidence in my favor is overwhelming. the weapon has already been promised to be returned by the detective working the case. they have no legal basis for keeping it permanently or destroying it. it was not taken from me during the commission of a crime.

    Quote Originally Posted by Grapeshot View Post
    The dramatic style and egregious actions described, w/o no more than personal claim to veracity, have been seen before...many times. In fact much of this situation follows precisely another previous such claim. The OP must understand that when a previously unknown poster pops in out of nowhere with such a grand tale, our experience has been that they are almost always manufactured, false.
    I have no idea which post you're referring to, and my writing style is very flowery when i describe events, due to a long history of writing and reading. The events as described happened, and were most likely recorded on the dash cam of the officers, if they were running. (lights were flashing, so here's to hoping)

    Quote Originally Posted by Grapeshot View Post
    Let's be very clear on one point here - I am not accusing the OP of being an agent provocateur. I am saying that the spots and strips are there and that tangible, verifiable, public information needs to be tendered to confirm.
    Again my forum ignorance peeks through, as i did not assume my story, strange as it seems, would be greeted with such skepticism. I purposely avoided having my case numbers online,as i assumed that was one of the fastest ways to have this page tracked. I wanted to have at least some time for people to read my story and provide feedback. I want to take this chance to thank the poster who backed me up with his personal search.

    Quote Originally Posted by Grapeshot View Post
    Those of you who familiar with me, know that I'll be one of the first ones to step up and help someone who had a run in with the "system" with a questionable charge, The jury is still out as to whether this is a work of fiction or something deserving of our attention.

    I'll wait and see.
    As proven by a later poster, my story is, at least in its bones, true. The specifics you will either have to trust I'm not lying, and am merely seeking help, or you can assume I'm exaggerating. If you are serious about your offer, than any advice you can give me about my situation would be greatly appreciated.

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    Quote Originally Posted by Michael Porschien View Post
    As proven by a later poster, my story is, at least in its bones, true. The specifics you will either have to trust I'm not lying, and am merely seeking help, or you can assume I'm exaggerating. If you are serious about your offer, than any advice you can give me about my situation would be greatly appreciated.
    Well, I notice that, at today's pretrial, you waived speedy trial and had your case set for a second pretrial. I also noticed that no motion to suppress has been filed yet. If you're planning to challenged the search, then I hope your attorney is planning to do that because you won't be able to do it at trial.

  14. #14
    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by Michael Porschien View Post
    --snipped--
    As proven by a later poster, my story is, at least in its bones, true. The specifics you will either have to trust I'm not lying, and am merely seeking help, or you can assume I'm exaggerating. If you are serious about your offer, than any advice you can give me about my situation would be greatly appreciated.
    My apologies if I seemed over the top Michael, that was not the intent, but upon rereading I can see how that conclusion would be reached. The point that was intended is that confirmation is needed and some has now been provided. Believe me, when I tell you that there are way too many people on the internet that will spin a yarn with no truth just to provoke responses. On the face of things, you have my acceptance of your situation.

    My sincere recommendation is that you not utilize your writing flair/talents to dramatize these events but so much - minimize that. Stick to the facts, clearly and concisely, but also only as your attorney authorizes them to be released.

    Now as to how we can help. One, we have already started .

    Moving your story to the Ohio forum was the first step. Passing on KYBMS (keep your big mouth shut) as a strong suggestion was provided by a highly respected attorney from another state (Virginia). Remember that anything you say (even now) can and will be used against you - that still holds true.

    Court appointed attorneys are, like other things, often worth what you pay for them. Not saying this is true in your case - hope it will not be. Attorneys, like most people, are income/profit motivated. We as defendants want highly motivated, hard charging, make the world a better place, legal representation. Because the only product that any lawyer has is their knowledge/skill and time, it can't always be given away. Somebody has to pay the bills.

    Phase two of the advice.
    Since you have no transportation, it will involve the generosity of others. I would like to see 1 or 2 of the old hands here meet with you at a public place (set up by PM and phone) to the goal of getting to know you better, get a picture of who and what you are. People tend to be more responsive to those they know than to strangers. They then can make a more informed personal recommendation to us. Who will step forward to meet this young man?

    The ultimate goal being a consideration to establish a defense fund to cover the expenses involved on your behalf. The members here can be most generous collectively and will step in to take up the slack when the cause is just and they are so so convinced/motivated. I don't know how this would effect your court appointed attorney status - you should ask.

    The ball is in your court - how do we proceed?
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

  15. #15
    Accomplished Advocate color of law's Avatar
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    Quote Originally Posted by Werz View Post
    Well, I notice that, at today's pretrial, you waived speedy trial and had your case set for a second pretrial. I also noticed that no motion to suppress has been filed yet. If you're planning to challenged the search, then I hope your attorney is planning to do that because you won't be able to do it at trial.
    It also appears that there were stipulations made. Stipulations are usually never for the benefit of the defendant. I hope you didn't waive jury trial.
    Also, requests for discovery are not required to be filed with the court. When they are they are treated as motions. Motions toll the speedy trial clock.

    You can withdraw your waiver of speedy trial by serving a notice on the court and prosetutor stating that your waiver to speedy trial is revoked.

    Good luck.
    Last edited by color of law; 09-22-2012 at 09:52 AM.

  16. #16
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    Quote Originally Posted by color of law View Post
    It also appears that there were stipulations made. Stipulations are usually never for the benefit of the defendant. I hope you didn't waive jury trial.
    Also, requests for discovery are not required to be filed with the court. When they are they are treated as motions. Motions toll the speedy trial clock.

    You can withdraw your waiver of speedy trial by serving a notice on the court and prosetutor stating that your waiver to speedy trial is revoked.
    • In misdemeanor cases, you don't a waive a jury trial. Bench trials are the default. You must make a written demand for a jury trial.
    • No motion for discovery need be filed with the court in order to toll statutory speedy trial time. Any discovery demand will do that. State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, syllabus.
    • After a written waiver of speedy trial, you can get it back, but it's more complicated than a simple revocation. You must make a written objection and demand for trial. And even then, you can only get back your constitutional "reasonable time" speedy trial rights. The statutory speedy trial rights (90 days for a first degree misdemeanor) are gone. State v. O'Brien, 34 Ohio St.3d 7 (1987), paragraph 2 of the syllabus.

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    Confused and thankful

    I want to start off this post by asking for a clarification of where the line between KYBMS and "the ball is in your court" lie. should i have this entire thread deleted immediately or should i simply keep too much detail from being released? and on that note, there is an assumption in the preceding posts that is incorrect, but pending my question i will leave it out until i get an answer. in short, the waiving was in my benefit, details to be released, or not, later on.

    as for meeting with someone to discuss things, that would best be worked out from PMs, i think, to prevent undue amounts of personal information from reaching the internet. Although, apparently Google knows almost as much about my trial as i do. To that end, a PM sent to this website's account or facebook will be responded to with all possible haste. i welcome the opportunity to sit down and talk candidly with someone about the particulars. I am not going to ask for money, because money is expensive, but i would more than welcome the chance to talk with someone who can provide information and familiarity to such a wonderful support network.

    I can say that as a member of the NRA, i spoke with and recommended my court appointed attorney to a criminal lawyer who specializes in gun crime here in Ohio, name upon PM request. Both him and my attorney reached the same conclusion independently of one another as to the best way of getting the charges dropped.

    I'll end this with my sincere thanks for the time and effort you have all put into writing back and helping me in this very serious situation. I appreciate both the advice and the chance for a donated fund beyond words, and i hope that in future i can show my appreciation by involving myself more in this forum and site. My one request and hope, is that someone does step forward and offer to at least talk to me via PM or phone so i can talk more openly about my situation.

  18. #18
    Moderator / Administrator Grapeshot's Avatar
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    The distinction

    Quote Originally Posted by Michael Porschien View Post
    I want to start off this post by asking for a clarification of where the line between KYBMS and "the ball is in your court" lie. should i have this entire thread deleted immediately or should i simply keep too much detail from being released? and on that note, there is an assumption in the preceding posts that is incorrect, but pending my question i will leave it out until i get an answer. in short, the waiving was in my benefit, details to be released, or not, later on.

    as for meeting with someone to discuss things, that would best be worked out from PMs, i think, to prevent undue amounts of personal information from reaching the internet. Although, apparently Google knows almost as much about my trial as i do. To that end, a PM sent to this website's account or facebook will be responded to with all possible haste. i welcome the opportunity to sit down and talk candidly with someone about the particulars. I am not going to ask for money, because money is expensive, but i would more than welcome the chance to talk with someone who can provide information and familiarity to such a wonderful support network.
    Anything on a thread/post or PM is retrievable - do not disclose more than has already been released w/o attorney authorization.

    The "ball is in your court" refers to talking to somebody from here as a "getting to know you" session - not necessarily to discuss details of your case, but that is surely an option
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

  19. #19
    Accomplished Advocate color of law's Avatar
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    Quote Originally Posted by Werz View Post
    In misdemeanor cases, you don't a waive a jury trial. Bench trials are the default. You must make a written demand for a jury trial.
    So what's your point? You can stipulate that you will not request a jury trial. That's what stipulations are all about.

    Quote Originally Posted by Werz View Post
    No motion for discovery need be filed with the court in order to toll statutory speedy trial time. Any discovery demand will do that. State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, syllabus.
    As to discovery, State v. Brown is moot. I suggest you read the 2010 amendment to Criminal Rule 16.

    Quote Originally Posted by Werz View Post
    After a written waiver of speedy trial, you can get it back, but it's more complicated than a simple revocation. You must make a written objection and demand for trial. And even then, you can only get back your constitutional "reasonable time" speedy trial rights. The statutory speedy trial rights (90 days for a first degree misdemeanor) are gone. State v. O'Brien, 34 Ohio St.3d 7 (1987), paragraph 2 of the syllabus.
    Relying on a syllabus will get you in trouble most of the time. Understanding a syllabus requires reading the entire case. Nowhere in O'Brien does it say you waive your statutory speedy trial rights, the specific number of days assigned by statute. And your attempt to put words in my mouth seems to be your stock and trade. I did not use the term “simple” revocation. As well, I did not go into detail as to how such a notice should be worded. Your legal prowess has left a lot to be desired. And yes we are all entitled to our opinions.

    Have a nice day.

  20. #20
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    Quote Originally Posted by Grapeshot View Post
    That is exactly the type of thing that is needed and I thank you for providing it.
    The OP could have cited a reference ... from the reference they had no RAS ... suit in court worth? In OH ~ 5-20K ... 42 USC 1983 does allow attny fees (but you rarely get tham all back) ... so a suit with a legal fee limit may be OK to pursue

  21. #21
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    Quote Originally Posted by color of law View Post
    As to discovery, State v. Brown is moot. I suggest you read the 2010 amendment to Criminal Rule 16.
    I am quite familiar with both the current and former Crim.R. 16. There is absolutely nothing in the new rule which changes the tolling of the statutory speedy trial time under R.C. 2945.71 pursuant to State v. Brown, supra. And in cases where discovery was demanded under the new Crim.R. 16, several appellate courts seem to agree. See State v. Simmons, 2011-Ohio-6074 (8th Dist.), ¶ 19; State v. Vrapi, 2012-Ohio-1018 (10th Dist.), ¶ 7; State v. O'Malia, 2012-Ohio-2051, (7th Dist.), ¶ 19.

    Quote Originally Posted by color of law View Post
    Relying on a syllabus will get you in trouble most of the time. Understanding a syllabus requires reading the entire case. Nowhere in O'Brien does it say you waive your statutory speedy trial rights, the specific number of days assigned by statute. And your attempt to put words in my mouth seems to be your stock and trade. I did not use the term “simple” revocation. As well, I did not go into detail as to how such a notice should be worded. Your legal prowess has left a lot to be desired. And yes we are all entitled to our opinions.
    The syllabus merely restates what is written in the text: "We hold that, following an express written waiver of unlimited duration by an accused of his speedy trial rights the accused is not entitled to a discharge for delay in bringing him to trial unless the accused files a formal written objection to any further continuances and makes a demand for trial, following which the state must bring him to trial within a reasonable time. State v. O'Brien (1987), 34 Ohio St.3d 7, 9. The "reasonable time" standard is the one applicable under the Sixth Amendment of the United States Constitution and Section 10, Article 1 of the Ohio Constitution, as opposed to a specific number of days under R.C. 2945.71, minus any specific periods of extension under R.C. 2945.72.

    It would appear that you are not accustomed to someone calling your bluff. Get used to it.

  22. #22
    Accomplished Advocate BB62's Avatar
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    Quote Originally Posted by Werz View Post
    ...The syllabus merely restates what is written in the text: "We hold that, following an express written waiver of unlimited duration by an accused of his speedy trial rights the accused is not entitled to a discharge for delay in bringing him to trial unless the accused files a formal written objection to any further continuances and makes a demand for trial, following which the state must bring him to trial within a reasonable time. State v. O'Brien (1987), 34 Ohio St.3d 7, 9. The "reasonable time" standard is the one applicable under the Sixth Amendment of the United States Constitution and Section 10, Article 1 of the Ohio Constitution, as opposed to a specific number of days under R.C. 2945.71, minus any specific periods of extension under R.C. 2945.72...
    Are you saying that once an individual waives their right to a speedy trial, the best they can get back, if they formally object, is a trial within a "reasonable time" - and further that "reasonable time" has little to no meaning?

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    Quote Originally Posted by BB62 View Post
    Are you saying that once an individual waives their right to a speedy trial, the best they can get back, if they formally object, is a trial within a "reasonable time" - and further that "reasonable time" has little to no meaning?
    It has a meaning as defined by the case law under the United States and Ohio Constitutions. But there is no specific time limit.

    Here's the rationale:

    The defendant is set for trial a week from speedy trial expiration, and three days before, the defendant claims to have a witness who will exonerate the defendant but cannot be found, and the defendant requests a continuance. The judge will grant a continuance only if the defendant waives speedy trial, so the defendant does. Two weeks later, the defendant withdraws the waiver, and adds (in essence), "Haha! Now you only have ten days to bring me to trial!" That creates an unreasonable burden on the court in terms of scheduling a trial date into a full court docket, and it creates an unreasonable burden on the prosecution in terms of serving subpoenas on witnesses, not to mention the scheduling problems it may create for witnesses.

    In practice, the judge will usually reschedule the trial as early as the docket will allow. Why? Because the judge wants it done and off the docket. That's why requests to "revoke" unlimited speedy trial waivers are very rare. Of course, if they wanted to, the appellate courts could promulgate the same rule applicable to statutory speedy trial provisions when a defendant fails to appear for a hearing and a capias is issued: the speedy trial clock resets to zero, commencing on the date of the defendant's re-arrest.

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    If we can get Color of Law and Werz together for lunch, I think we could charge admission!
    ------------------------------------------------------------
    What does a caring, sensitive person feel when they are forced to use a handgun to stop a threat?

    Recoil.

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    Not to crash the party...

    I can't help but noticing the slightly tangential nature of the past few days' worth of posts. while this may be no more than a mildly interesting story for most to track as the months wear on, for me this is a very serious and potentially life-changing event. I could go to jail for something i had every right to do. Towards that end, and please accept my apologies if i seem overly stern, could we return to the matter at hand? Specifically, is there no one willing to PM me with a request for a phone number, or chat with me online to further my induction into this circle?

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