Judge’s vow to ‘make sure your rights protected’ not kept as diddling prolongs 2A harassment
Plumber waits for judicial Draino to work, unclog 4-year-old case alleging he "knew" he was convicted felon toting gun under TN carry permit
CHATTANOOGA, Tenn., Thursday, May 16, 2024 — More delay in the case against Ray Rzeplinski, a Chattanooga businessman who was to have had a hearing today on motion to dismiss. The hearing is delayed, with no reason supplied to him.
Ready to move forward — but where is DA?
Here is an earlier accounting of an illicit and misbegotten case, State of Tennessee v. Ray Rzeplinski.
Oct. 14, 2020 — A plumber used to reaming pipe for turd-fed blockages stands in front of Hamilton County’s top judge and socks away at irregularities in his gun prosecution.
By David Tulis
Ray Rzeplinski is under prosecution on charges that he is a felon in possession of weapons — a 10-count indictment with eight of the charges focusing on various muzzles in his arsenal and two others on alleged resistance at his arrest August 2019.
The sheriff’s department arrested the defendant twice. The first time SWAT deputy in an escalated encounter beat him to a pulp and sent him to the hospital ICU four days. The second time strike him with a rifle butt and putting a “rifle in my ear, while I’m handcuffed,” Mr. Rzeplinski tells the judge. The department earlier refused comment on the reason for the 2nd beating.
The hearing goes sideways — with the prosecutor Neal Pinkston or an ADA absent, with Mr. Rzeplinski demanding dismissal of the charges, and with Judge Tom Greenholtz conversing with Mr. Rzeplinski about the judge’s high calling to protect the rights of the individual and to be fair in criminal cases.
A trial had been docketed, but Mr. Rzeplinski is told there is not even a hearing, and that he should come back another day. He says he insisted on seeing the judge, as he is ready to move forward. A 35-minute conversation ensues in which the irascible plumber more than once interrupts the judge and Judge Greenholtz displaying a gracious demeanor (despite a face mask) that gives the judiciary what credit and confidence it has left.
Were today’s event a trial, it should have ended with summary dismissal for failure to prosecute; Mr. Rzeplinski demanded dismissal on all charges — not on grounds of no prosecution, but on grounds of malice and prejudice. If it were a proper hearing, it might appear improper — an ex parte meeting of judge without both sides present. Mr. Rzeplinksi says he is there by right, had not been notified of a cancellation despite a talk with a clerk a day prior.
Mr. Rzeplinski — acting without counsel and sui juris — is demanding what evidence the state will offer to prove he knew he was a felon owning a weapon when he knew he was not. He is demanding, in effect, an evidentiary hearing as to its sufficiency.
Angry and wrecked
➤ Mr. Rzeplinksi says the styling of the case is prejudicial. It is styled “State of Tennessee vs. John Paul Price alias Raymond J. Rzeplinski,” using a teenager alias that Mr. Rzeplinski says appears in no legal document for the past quarter century of gun buying or working under state license for various city and county governments as plumber. The styling puts his real name into the position of alias, he says; it is legally inaccurate and “prejudicial.”
“You’re fine. You’re fine. We’ll correct our records. *** That’s an important issue to you,” the judge answers, with respect, “and that’s an important issue to us.”
➤ The plumber, who filed for bankruptcy the day prior, says the charges have changed and some charges seem unaccounted for; he is confused about what he faces. The docket gives five charges; weren’t there 10?
Guilty mind — can it be proven?
He stands before the white-mask-hidden jurist without either counsel, representation or a next friend, having talked with several lawyers none of whom are willing to defend him on what appears to be his only real defence.
The charges in the indictment say that he “knowingly and intentionally” possessed firearms while being a felon. To these lawyers, his prosecution is summary and impossible to defend against, as there is a conviction 24 years ago — a plea bargain apparently signed by Mr. Rzeplinski, who had counsel, when he was 19..
In the minds of lawyers, the fact that Mr. Rzeplinski inked his name to a written plea bargain at age 19 to burglary — which is called in the law a violent felony — makes the case impossible to defend. Mr. Rzeplinski signed a plea agreement and signed a waiver of the right of appeal in his own hand and under his own name, the state will argue. That means that for the past 24 years, the plumber has knowingly and intentionally acted feloniously, owning, toting, collecting and exercising his 2nd amendment right to bear arms.
Which under state law is a crime.
Mr. Rzeplinski has gone about his life as a free citizen, free to bear arms, to own arms and to make declarations to others of being nothing worse than misdemeanant.
Reliance as a defense
The job of the prosecution will be to prove his state of mind as knowing and intentional. It will have to prove that, during this quarter century, Mr. Rzeplinski has kept this barrier in his mind, with his scienter, his mens rea, his guilty mind, his wicked heart, as one court says, and wickedly violated the law.
The state must prove all the essential elements of the charge. That means not just possession of weapons, like an SKS rifle, but also that he knew he could not legally possess such weapons of liberty.
Mr. Rzeplinski reveals to Judge Greenholtz that he has considerable reliance on government sources affirming that he is not a felon.
The idea of reliance is this: If a government official tells you something, you can assume reliably that the government official is telling you something in accordance with law. You can rely on the government official’s actions or words as a basis for doing something that touches some interest or other of the law. A lawsuit against Gov. Bill Lee for violating the health law at Title 68 in his April 2 economic shutdown of an entire economy is premised on reliance upon statements and nonanswers of government officials as indicative of a true state of affairs.
Mr. Rzeplinski plans to raise a defense of the “knowing and intentional” charge that is a high hurdle. The government must prove the opposite beyond a reasonable doubt.
A reliance defense by Mr. Rzeplinski makes the prosecutor’s job hard. The DA has to prove that he remembered the plea agreement 24 years earlier, understood it, signed it, agreed to it and knew daily since the ink dried that he was a felon and could not legally own a firearm. All these claims Mr. Rzeplinski intends to challenge. I don’t remember signing that? Do you have a witness who saw me sign that? If I signed it, how could I possibly remember only agreeing to misdemeanor theft of property? Do you have conservator of the archive in Cleveland, where the plea deal was struck, who can verify this record has been there this quarter century? Why would I as a teenager plea bargain a felony case by pleading to a felony? No way, I would plead a felony charge down to a misdemeanor. How come this record of a felony is just now coming to light?
Judge Greenholtz says that indictments should contain all the elements of the charge, but that the defendant shouldn’t expect them given as bullet points. He indicates, however, indictments bear a careful, careful reading for sufficiency on the essential elements.
Mr. Rzeplinski demands a hearing on the state’s evidence with particular interest in how it intends to prove mens rea. Eight of the 10 charges touch on the claim he “intentionally and knowingly” possessed weapons while being a felon.
Mr. Rzeplinski, already trying the case by comment and interruption, argues that there is no way the state can prove mens rea, “evil heart,” he says, citing language one ruling.
But here, a corrective. Judge Greenholtz says the requirement for an evil heart is no longer a standard the DA has to meet. Mens rea means, he says, “what was in your mind in when the acts occurred.”
“Mens rea, if you look at the statute, it doesn’t necessarily require an evil heart,” Judge Greenholtz says, with the ease of a law professor in a lecture gallery.
The evil heart aspect of it came from typically first degree murder cases. Under the old common law in England, where at that time you had an act of malice. Malice was a specifically defined term. Those kinds of mens rea aspects have long since gone. In fact, they’ve all gone since 1989. In 1989 we had a fundamental change in the criminal [law]. We added in different kinds of elements of mens rea.
One acts intentionality, knowingly, negligently, recklessly, he says. Does the accused have a “conscious object, desire to carry out an effect?” he explains.
He says that “in at least one indictment there is mens rea, and that may not square with the facts.” A reading of the counts indicates the eight gun charges use the phrasing “did unlawfully and knowingly possess.”
Judge Greenholtz cites the mens rea element in the indictment in the case, that being an essential element of the charge. “I know this. That might not square with the facts” and the state might not be able to “prove those allegations beyond a reasonable doubt,” he says. “If so, you will be found not guilty and the charge will be expunged from the record.”
Judge Greenholtz gives an example of a theoretical 2nd degree murder case. One aims a gun at someone else pulls a trigger, the act frames the intent; the act tells what is in the mind of the person holding the gun — namely, injury or worse. “They might be able to reasonably infer from that action that they knew that their actions would cause death — OK? That’s typical second-degree murder, the knowing killing of someone else.” One is aware of the action. “Those circumstances may be a powerful indication of what was in my mind at the time,” he says.
Legal trap for Rzeplinski?
Judge Greenholtz picks up the indictments and looks at one of the counts, that of owning a pistol. It says he “knowingly and intentionally” owned the pistol while a felon. The prosecution won’t have trouble proving that Mr. Rzeplinski knew he owned weapons. “I have been a proud 2nd amendment supporter, and still am,” he says. It must meet two tests: The proof will have to include the weapons and his knowing his legal status as “felon” not free to own them.
While that seems to be the case, Judge Greenholtz frames the allegations in a way that appear to deny there is a two-part duty of the prosecutor.
“It’s saying the possession that you have — the allegation, not the proof — the allegation that you possessed a weapon and that you knew what it was at the time you possessed it.”
“Well, of course, I had a concealed carry permit for years,” Mr. Rzeplinski says.
“In fact, I don’t want to talk about the proof,” the judge says, “because everything we’re saying here is on the record.”
The judge’s framing of the allegations is disturbing upon the idea of reliance. It’s as if the judge is saying that he expects a slam-dunk case, with the state merely having to prove that the plumber knew that an SKS in his collection is a rifle, or that his shotgun is a gun, and that this knowledge of basic facts equals guilt.
The indictment language is, on one count, the judge says, that Mr. Rzeplinski “did unlawfully and knowingly possess a handgun *** after the defendant has been convicted of a felony.” The defense would be that the knowingness applies to the whole transaction — the apparent felony record of a quarter century ago and the possession of firearms.
The judge’s comment suggests he takes the accusers’ view: That all Neal Pinkston the DA need to prove as a matter of law and fact that Mr. Rzplinski knows a gun is a gun.
Judge Greenholtz says Mr. Rzeplinski could argue that the case fails as a matter of law from the flaw of insufficiency — “you believe the indictment doesn’t allege all the elements that it should.”
No trial? It was docketed
Judge Greenholtz says the trial was “originally scheduled” to be today, to start the next day. “What had happened here today we were originally scheduled to have a trial today. In fact, we would’ve started tomorrow. And kind of a weird way the system works,” the judge says, the trial was rescheduled (by parties unknown) and efforts to reach the defendant to tell him about it were “unsuccessful” in proposing a change in the date.
But, as premature as it seems from Mr. Rzeplinski’s perspective, a trial is scheduled today, and Mr. Rzeplinski was unaware of a proposed changed, and he is ready to proceed — but the DA’s attorney is absent.
Mr. Rzeplinski accepts that what follows is a hearing — but here, too, without his accusers present. It appears the only way the encounter can be proper is that it not deal with any of the substantive conflicts ahead in the trial, but procedure and schedule, as allowed by judge rules on ex parte encounters.
It seems, however, that for the hearing to have been according to the rules and not illicitly ex parte (with only one party present), that it had to have been the trial, with only one option for the judge in his duty: To dismiss the case, as Mr. Rzeplinski demands. If it is a hearing, it appears outside the rules, as Mr. Rzeplinski enters seriously into the substance of his claims, shading the judge’s consciousness with glowering comments about beatings and due process, without prosecutor present to rebut to shore up the jurist’s view of his familiars in that office.
Judge Greenholtz says he cannot dismiss the charges, and can do nothing about the case today.
The case has “drug out and ruined” his life, put him out on a F$400,000 bond, has wrecked his business, Mr. Rzeplinski says.
No doubt, the judge says. But the case “is a multi-step process as we go,” he says; he cannot help what happened prior to the case arriving on his docket, and the first order of business is whether he has a lawyer.
“Here’s an easy way to solve it, and I’m happy to help in any way I can. If you are talking with a lawyer, and the lawyer can’t get it from the clerk’s office *** have him call me. I’ll help him. I’ve got a website you can go it — it’s criminalcourt2.org. My phone number’s on there. My contact information’s on there. Just have the lawyer say hey, contact Judge Greenholtz, and I’m happy to help, to make sure they get all the documents they need to represent you.”
Mr. Rzeplinski engages the judge on one of his strongest points: Due process and the essential elements of a crime. Judge Greenholtz’s ruling in the RICO case is a masterpiece of analysis about the problem of prosecutors’ and grand juries’ failing to give due process proper notice to defendants by failing to allege all the essential elements of the offense.
Mr. Rzeplinski says essential elements appear not to be present in the charging instrument, and he wants to know if they’re all listed. The judge won’t give legal advice or make a determination.
But he heads in the defendant’s direction. There may be “issues” regarding the grand jury, he says. But the grand jury is its own boss; it “is its own independent, separate body” and it returns charges from its own mind, regardless of actions by lower courts, sheriffs or DAs, he says.
The judge clearly is not ready for trial. He says he hasn’t read the indictment. But that document should, he says, contain all the essential elements of the charge. “Sometimes it does not.” He says he has dismissed indictments when elements are not there. Elements not necessarily in a list. But allegations should track language of statute, and should contain citation to the law.
Mr. Rzplinski rasps at a charge changed from a sheriff’s department affidavit of his legally discharging a firearm early in the morning to brandishing a weapon and recklessly endangering the life of a SWAT team on the indictment; how did that happen? he demands. “There’s no elements to that,” the plumber says.
The judge again tries to focus the attention of his listener to his lack of counsel or representation by a lawyer. But Mr. Rezeplinski wants to focus on the confusion about the charges and the seeming mess in the indictment. The leading grievance is the styling of the case
Mr. Rzeplinski questions the validity of the indictment, since it wasn’t “published.” He says he didn’t see it at any news outlet such as Chattanoogan.com, which publishes true bills. There are no secret indictments, no secret proceedings, he says, to deflect strongly worded suggestions by Mr. Rzeplinski of misdoings outside the courtroom by DAs and deputies.
The judge says the indictment is “in the court minutes.”
‘Make sure that your rights are protected’
Judge Greenholtz reassures the plumber of the ideals of justice in the American system, one that no doubt many jurists seek after, if only time, means and resources would let them approximate what they know to be right in Tennessee or American law.
“Here’s what I want you to know,” he says.
My job, in the position I’m privileged to hold, is to ensure that your rights are respected — OK? So, my position is to make sure that both sides, as we go forward to a trial, have their opportunity to be fairly heard and to be able to fairly present their case. *** There’s no secret indictments. There are no secret proceedings. OK? I am going to make sure my dead-level best to make sure that your rights are protected, and, hopefully, I don’t know this, but hopefully, that’s the reputation that I have. I’m going to play this down the middle. The state doesn’t get an unfair advantage just because they’re the state. We’ll play it by the rules. Those rules are set in our constitution, our state and federal constitution. They’re set forth in our statutes. So we’re going play by those rules. *** If I see the state breaking those rules, they’re gonna be held to account.”
Judge Greenholtz says his position comes with the power “This position comes with good authority to make right out of wrong,” but one thing he cannot do is to “physically amend” the charge that comes from the grand jury. That would be improper because it would be “the judiciary stepping in on the rights of the people.”
Judge Greenholtz says that the jury will hear him referred to by his proper legal name, and not under any alias as it appears on the indictment.
Aliases & the teen prank
Mr. Rzeplinksi says the prosecution is a misbegotten vendetta by persons in the sheriff’s department who have grievance against him. The styling of the case that he brings up more than once is evidence of a misfeasance.
The judge says he can’t “physically amend the charges” from grand jury. No judge can “mess with that” and “mess with your allegations” because that would be the judiciary’s “messing with rights of the people.”
He cannot change the record, but he says he will make sure at trial the jury sees him addressed in his real name, not in a teen alias that Mr. Rzeplinksi says does not appear in any record, bill of sale, contract, gun permit or other document as an adult.
Judge Greenholtz says the defendant is “entitled to that dignity.”
Back to lawyer? If the plumber needs one if not able to afford one, he will appoint “good one” to represent, one he would feel comfortable “representing me *** a competent lawyer to represent you, given the seriousness of the charges.”
Judge Greenholtz says often people represent themselves. But it’s dangerous to make one’s own case, what with the difficulty of knowing how to elicit testimony. He offers caution of “the dangers” that come with that. But the judge says he will work with Mr. Rzeplinski.
He refers to evidence he has —
to show no ill intent, that I had — yes, I’m a misdemeanant. But I’ve lived 24 years of my life under the impression that I was not convicted of a felony and I had multiple, multiple — y’know — reliance, from the federal government, from Hamilton County government, city of Chattanooga, Bradley government and Meigs County government as well as other forms of government. I have reliance from state of Tennessee that I have a handgun carry permit, for years, and I purchased all my guns legally from federal firearms licensees.
The judge says a lawyer may disagree with his client’s plans, but the accused and counsel decide what to do.
Deputies have exculpatory evidence
Mr. Rzeplinski demands an order restoring to him contents in two safes that he says may contain exculpatory evidence. The accounting for the contents is incomplete, he says. He is looking for documentary evidence, not an immediate return of weapons and ammunition.
Judge Greenholtz says magistrate Basler issued the search warrant and that a sessions clerk should contain copy of original inventory. “We’ll take care of that.”
I will tell you this. If there is exculpatory evidence that was seized, and has since been lost, that’s a problem. That’s a problem. The state has a duty to disclose all exculpatory evidence to you, and that duty arises even without your request. If exculpatory evidence is gone, and that would prejudice your case at trial, one of the remedies the court has is to consider dismissal.
A hearing on an attorney is set Monday at 9:30 to have a “lengthy conversation” about representation. Mr. Rzeplinski has contacted attorney Chad Wilson, who was involved as defense attorney in the RICO case.