Plumber Ray Rzeplinski makes an appearance before Judge Tom Greenholtz to discuss whether he has an attorney to represent him, counsel him, or whether he has means of affording one.
By David Tulis / NoogaRadio 92.7 FM
A hearing goes into recess to give Mr. Rzeplinski, a working man in a checkered shirt and whiskers, time to fill out a declaration of assets. Working for 10 minutes, he declares his status as pauper “with reservations” about accuracy and details, the black straps of his mask pulling forward his ears.
His fiancee, Jackie Cordell, sits on the back row, and on the front row sits Michelle Herron, a TV3 reporter; against the wall on a tripod, a TV camera — and, next to it, a camera operator.
At the prosecutor’s table sits Leslie Longshore from district attorney Neal Pinkston’s office. She refuses to comment.
The case in Hamilton County, Tenn., is fraught with irregularities in the weeks and days leading up to Mr. Rzelinski’s arrest in which he was beaten to a pulp (while his hands were in the air} by the Hamilton County SWAT team. The injuries put him in the ICU four days. The indictment is styled in the name of an alias he hadn’t used since a teen, and a record in the Bradley County archive was given to the DA’s office indicating that at 19, Mr. Rzeplinksi had plea bargained a felony burglary charge down to felony burglary charge — and also to theft of stolen property.
Mr. Rzeplinski doesn’t remember that agreement, and questions the validity of the document as the basis of a criminal case he says is freighted with personal animosity of people in the sheriff’s department, including his ex’s new husband, who works in the department.
The indictment says Mr. Rzeplinski “knowingly” was a possessor of weapons while a felon. The statute under which he is charged is less gracious to him. The provision appears to be of the tough-guy strict liability variety that denies any proof of mens rea (intent, knowledge or guilty mind as opposed to an act of criminality itself) is required. Attorneys with whom Mr. Rzeplinksi has talked say they cannot defend him on grounds that Mr. Rzeplinksi insists be his defense: That he knows he is not a felon.
The defense that the owner of Ray’s Plumbing is driven to make is that he knows he isn’t a felon based on years of reliance on government approvals, licenses, permits and A-OK background checks with the TBI. If indeed he were a felon, how could the department of safety and homeland security have granted him a concealed carry permit following an honest and truthful application?
The statute will limit the judge to direct the jury to find Mr. Rzeplinski guilty if the DA proves beyond a reasonable doubt that Mr. Rzeplinski knows that the SKS and other pieces of equipment seized are weapons.
The statute appears to make merely the possession of a weapon an assignment of guilt. Mr. Rzeplinski doesn’t deny owning weapons, being a proud 2nd amendment backer, a gun collector and a man often with a piece on his hip or under his armpit.
Top-gun attorney
The hearing is to determine his status as defendant — pro se, private attorney or taxpayer-funded attorney?
“If you are unable to afford to hire a lawyer,” Judge Greenholtz says, “I am happy to appoint a competent lawyer to represent you, one who is familiar with the issues, one who is familiar with the practice of this court. As I said, not someone who is fresh out of law school. But someone who is competent to represent you in a way that I would feel comfortable representing me.”
Mr. Rzeplinski says he filed Chapter 13 bankruptcy. He has “lots of assets,” but cannot liquidate to pay for a lawyer. His company’s cash flow is down to F$7,000 a month, though its equity is at F$1 million. Fraud has damaged his company’s prosperity, Mr. Rzeplinski says under oath, but the CV-19 panic has not. He is on a payment plan with Carlos Bonding.
Judge Greenholtz says that in light of his right to counsel “under the sixth amendment to the U.S. constitution and article 1, section 9, of the Tennessee constitution,” he will assign Ben McGowan of the Jerry Summers law firm to represent him.
Asked about the assignment’s origins, Mr. Rzeplinski says “I don’t know. I was wondering that myself. When he said he was going to appoint a lawyer, I thought along the terms of someone like Steve Smith in the public defender’s office.”
Such assignments are at the discretion of the judges, with weightier cases reserved for private attorneys rather than be assigned to the overworked public defender.
Jury power and right of conscience
Mr. Rzeplinski has had trouble obtaining counsel. One lawyer demanded F$20,000 up front. Another said his proposed defense is unworkable.
Attorney Chad Lewis was Judge Greenholtz’s first pick for counsel in the case. But he had e-mailed Mr. Rzeplinski that his defense of mens rea appears to be blotted by the statute’s strict liability language, indicating that all the evidence the plumber might put on regarding his “knowing” himself a mere misdemeanant would be shot down by the judge’s jury instructions at the end of evidence and argument — with the judge telling the jurors that they would need to find the accused guilty if the state had proven, beyond a reasonable doubt, that Mr. Rzeplinski knew an SKS is a “a firearm” (Tenn. Code Ann. § 39-17-1307) at the time he had it in his care.
Still, a man who innocently went about his life as a non-felon has the defense of knowing himself to be so, and that he relied on the government to continually affirm it by licenses, permits and gun-carry approvals. The jury itself is how the “problem” is cleared up, with the jury determining that his lack of intent is important.
The judge, bound by the law, will order the jury to discount the defense by saying their finding of conviction is on the pure finding of fact that Mr. Rzeplinski knows a gun is a gun and that he “knowingly” possessed each one mentioned in the indictments, the “knowingness” applying not to himself as misdemeanant, but to the nature of the firearm itself and its possession.
Judge Greenholtz’s court is setting itself up for a case of jury nullification, where the jury members — driven by their own consciences — ignore the law and obviate its evil effects by rendering a not-guilty verdict. Judicial policy forbids any mention of this jury power, and no lawyer is permitted, as a court officer, from bringing it up.
Probably the only way Mr. Rzeplinski can openly argue for jury nullification or jury discretion is to fire his attorney at the end of the trial and make the final argument himself. He would cite the jurors’ power under the Tennessee constitution to judge the law and to nullify the law as applied to him and to vote their consciences.
The constitution at Article 1, section 19, recognizes jury power in passing: “[I]n all indictments for libel, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other criminal cases.”
There appear other grounds for the case to be dismissed, such as irregularities in the archive record in Bradley County of Mr. Rzeplinski’s plea agreement and waiver of right to appeal, and abuses in his arrest. Mr. Rzeplinski should challenge authenticity of the document, if the state deems it worthy to enter into evidence going toward intent. It appears to have been irrational for the young Rzeplinski to have made a plea bargain that went sideways (from felony to felony) rather than downward (from felony to misdemeanor).
The apparent animus and hatred of the defendant by members of the sheriff’s department includes surveillance activity on Ray’s Plumbing job sites, according to the couple in a phone interview Friday.
