IN THE COURT OF COMMON PLEAS, GENERAL DIVISION STATE OF. OHIO PIainTiff VS. RITA JO NEWCOMB Defendant PIKE COUNTY. OHIO CASE NO: JUDGE RANDY D. DEERING MEMORANDUM CONTRA TO THE STATE OF MOTION TO CONTINUE THE JURY TRIAL SCHEDULED FOR NOVEMBER 18, 2OI9, WHICH IS DUE TO BE FILED BY STATE OF OHIO BY THE END OF THE BUSINESS DAY ON NOVEMBER I4, 2019 In The afTernoon of November I3, 2019, The conTacTed The CourT and requesTed a phone conference wiTh The CourT of 3:30 pm. wiThouT The knowIedge of DefendanT's aTTorney and wiThouT firsT conTacTing defense counsel. Defense counsel was ouT of Town on legal business aT The Time. A phone hearing was conducTed wiTh boTh parTies. The CourT ordered PlainTiff To file a moTion To conTinue in wriTing and sToTe The reasons for such requesT. The DefendanT was ordered To file a memorandum conTra (wiThouT The benefiT of receiving The STaTe's moTion firsT] by close of business The nexT day, i.e. due by November I4, 2019. The defendanT is expecied To ?guess" whaT The STaTe's argumenTs are for requesTing a conTinuance and file a memorandum conTra wiThouT ever having seen The STaTe's motion. I COMMON PLEAS COURT NOV 14 2019 JUSTIN P. BREW 1 STER I PIKE COUNTY CLERK GERLACH GERLACH ATTORNEYS AND COUNSELORS AT LAW 814 7TH STREET PORTSMOUTH. OHIO 45662-4128 Plaintiff apparentlyargues that'it needs a continuance in? order to review and prepare for documents if received on November 13. 2019. These documents were from Attorney Bruce Daily. Defendant opposes Plaintiff's Motion to Continue for the following.- reasons: I First. this is the third time the State of Ohio has requested a continuance of the jury . trial. The firstjury trial was set forJuJy 8.2019. The State asked for a continuance for more time to prepare and the defendant agreed .to waive speedy trial time throughout the - period of such continuance {Entry dated 06/25/201 9) and agreed to the continuance. The next trial date was scheduled for October 2t. 2019. At a motions hearing on 'October. 7. 2019. the State'of Ohio asked fora continuance a second time due to the _?unavailability" .of an investigator-.. Said request was granted and the jury trial was postponed to'November 18.. 201 9. 'Now. the State is asking for another continuance. It 'appe'arsthe State of?Ohio was haping defense counsel would ask for a. continuance-since the State ?dumped" ektremely important and relevant information. and discovery material on the Defendant 'at the last minute via email dated at 7:55 pm . on Friday, November 9. 20i 9. Intact. not only did the State send new and relevant material that they have had in their possession. since June 20i 7. but the email indicated they were still. waiting on yet 'an?other'handwriting expert report and would send other documents and/or recordings previously?requested at the outset of this case sometime As of Tuesday. November 12. 20.19, the State still had n?i sent whatif promised in its own emails. Clearly the State is -not prepared and ready to ?try this case regardless of the? Daily files. It has been a'Tcontinuing course of conduct for the State to provide discovery piecemeal that it clearly hashad?in its possession for years. It is Defendani'q theory that COMMON PLEAS COURT NOV 14 2019 P. BREWSTER PIKE COUNTY CLERK GERLACH 3: GERLACH ATTORNEYS AND COUNSELORS AT LAW 814 7TH STREET PORTSMOUTH, OHIO 45662-4128 not only is the State not prepared toproc'eed. but that the State wants more time to try to come up with something Eto use. against the defendant. Certainly its actions have indicated some. --.. The?State of Ohio has repeatedly failed to comply with Court order for producing .: discovery.. Specifically. the State of Ohio first informed the Court that it would furnish Defendant's counsel ?With discovery no later than January 31. 2019. (Journal Entry dated . -. the discoverablematerial requested still had not been provided. the Court ordered the State to provide all discoverable material to the defendant by April - '30. entry dated 05/01/2019}. In response to Defendant's Motionis) to Compel Discovery. ?the Court ordered the State to provide discovery including. but not limited to. any and all .written or recorded: statements of Defendant along with transcript from Grand Jury testimony and of same to counsel for defendant no later . than September?. 2019. .?(Journal Entry ?dated 09/20/2019). Defense. counsel still has not received a copy of the audio recording: from the Grand Jury proceedings. Further. as late as November?12. 2019. the State of-Ohio provided via email a short paragraph summaryof a recording of the Defendant?which was recorded by the State in June 2017. - "lt-prornised to provide more discovery Which has not been forthcoming. The State also . promised to. provide specificsas tetcertain jail. phone calls which defense-counsel still has not received. The prosecution has still failed to provide thediscoverable material previously requested by the defendant. The rules of discovery. time limits for response. the right. to due process. and .-.the constitutional right to a speedy trial are rights afforded the? defendant. not the. prosecution: If the prosecution cannot move forward in a timely .manner after filing an indictment. then the matter should be dismissed. The systems/ms . COMMON PLEAS COURT NOV 14 2019 3 JUSTIN P. BREWSTER PIKE COUNTY CLERK GERLACH 3: GERLACH ATTORNEYS AND COUNSELORS AT LAW 614 7TH STREET PORTSMOUTH. OHIO 45662-4128 not set up? to accommodate the whims or prerogatives of the prosecution. if the defendant is ready to move forward with the trial. then the trial should go forward as scheduled on November 18. 2019. 'The State also has thevast resources=of the Ohio Attorney General's office. the' Ohio Bureau of Criminal Investigation.- Pike Oeunty and other law-enforcement agencies, and the-Pike County Prosecutor's office to-help prepare its case for at least 2 V2 years; - . Ye't. the-State has repeatedlynot provided known discoverymaterial in its own hands .. even though defense counselrequested it at the beginning of this case. On the other hand.'defense counsel?is one individual. Nonetheless; defense counsel is able to review . and prepare for trial in spite of having a full "time practice of lots of other cases. Furthermore. the State has had knowledge and access to this material long before the defendant was. arrested. -The State's investigators. BCI Special Agent Ryan D. and Major Alan Lewis withfPike Gaunty interviewed Bruce Daily for 50 minutes a long time ago. It had vast resourcesand subpoena power to obtain any documents it deemedrelevant. "Daily files" material furnished to the State was never intended to be introduced at trial but'merely. used to help the witness refreSh his memory ?if necessary. Copy 'of the Precipe- for Subpoena is attached.) The only reason these were sent to the prosecutor was because the prosecutor called and asked for them and they were'eimmediately. provided. The cannot use its own actions to scream foul. Even more important. the State has indicated that its latest handwriting experts believe the Defendant. Rita Newcomb. .did not sign the alleged forged documents. It . seems the-proper thing to dots-to dismiss these forgery charges against the Defendant in light of the new exculpatory evidence obtained. by the,State. COMMON PLEAS COURT NOV 14 2mg JUSTIN BREWSTER . .9- s. .eizeak GERLACH 8: GERLACH ATTORNEYS AND COUNSELORS AT LAW 814 7TH STREE Finally; the State has anotherfremedy at its disposal rather than a continuance. The State can file'a' motion to .exclude these Daily files and the Court can rule upon same. Another. option the State has isto dismiss this case if the State is still not ready to prosecute; .This matter has dragged on long enough. This case was opened on Navember 13?. 2018, Over one year ago; If Defendant had not agreed to temporarily waive time for ?a-speedy trial..this matter would already be tried or dismissed. The Defendant remainsshackled with an ankle bracelet and her freedom severely restricted. She isstill entitled 'to.-a speedy trial regardless of statutory time limits- Since she only agreed to waive time during the time:of the original continuance, time is almost up to try - this case. Further. we arenowgetting c?lbse to holiday time and bad weather which . would make it.dif?cult for jurors to attend a hearing that. is postponed once again. The CoUnty has already incurred expenses in sending out jury notices and both sides have already issued subpoenas. Defendant-has also timely filed its proposed jury instructiOns and verdict forms. It is time to try this case. . For'the foregoing reasons, Defendant respectfully requests that the State's oral an?d any?written motion to continue be denied and this matter proceed with the jury trial on this coming Monday, November 18, 2019. Respectfully submitted. ?aw/?414 7AM Franklin T. G'erlach Attorney for Defendant Reg. No. 0019424 814 Seventh Street Portsmouth. 0 COMMON PLEAS COURT NOV 14 2019 P. BREWSTE PIKE COUNTY CLERE GERLACH 3: GERLACH ATTORNEYS AND COUNSELORS AT LAW 814 7TH STREET PORTSMOUTH. OHIO 45662-4128 Phone 740.354.7755 Fax 740.354.6496 CERTIFICATE OF SERVICE A copy. of the foregoing Defendant?s Memorandum Contra State's Motion to Continue hand delivered to the office of Robert Junk, Pike County Prosecutor, and his Special' Prosecuting and Anthony D. Pierson. Pike County Courthouse, 100 E. Second'Street, Waverly.?Ohia 45690.. this 14th day-'of November, 2019. Franklin T. Gerlach I Attorney for Defendant Rita Jo Newcomb I COMMON PLEAS COURT NOV 14 2019 JUSTIN P. BREWSTER PIKE COUNTY CLERK GERLACH GERLACH ATTORNEYS AND COUNSELORS AT LAW 814 7TH STREET PORTSMOUTH. OHIO 45662-4128 ?9.31" IN THE COURT OF COMMON ELEAS, GENERAL DIVISION PIKE COUNTY, OHIO STATE OFAOHIO CASE NO: Plaintiff vs. 5 . JUDGE RANDY D. DEEPING RITA JO NEWCOMB PRECIPE FOR SUBPOENA Defendant DUCES TECUM To The Clerk: Please issue subpoena duces-tecum to Pike County Sherriff for service upon the following to appear as a witness: 1) Bruce Dailey 842 Howard Road Waverly, Ohio 45690 taiappear as a witnesszfor the defendant Rita Jo Newcomb. and to appear on November 20'and 2019, at 8:30 am. in Judge Randy D. Deen?ng?s Court. Pike County Courthouse, .100 Second Street, Waverly, Ohio 45690, and to bring with him his case file records of Edward Jacob [Jake] Wagner relating to his child, Saphia May Wagner. It is . my understanding your files are paperless, so bring a computer device so that you can access, read. and review your records. Franklin T. Gerlach Attorney for Defendant- Reg. No. 0019424 814 Seventh Street Portsmouth. Ohio 45662 Phone 740.354.7755 Fax 740.354 Fl COMMON PLEAS COURT NOV 14 2019 JUSTIN P. BREWSTER _ilg? COUNTY CLERK GERLAOH 8: GERLACH ATTORNEYS AND COUNSELORS AT LAW 814 7TH STREET PORTSMOUTH. OHIO 45662-4128