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STATE OF MICHIGANIN THE THIRD CIRCUIT COURT FOR THE COUNTY OF WAYNEPEOPLE OF THE STATE OF MICHIGAN,Plaintiff,Case No. 2019-003272-01-FHHON. TRACY E. GREENvs.KEVIN COREY CAMPBELL,Defendant./MOTION TO DISMISS DUE TO SPEEDY TRIAL VIOLATIONThe Defendant, KEVIN COREY CAMPBELL, (“Defendant”) through is attorney,PATRICK E. NYENHUIS, moves this Court to dismiss the charges against him because his rightto a speedy trial has been violated. This motion is based on the Fifth, Sixth and FourteenthAmendments to the United States Constitution, Article 1, Section 20 of the MichiganConstitution and the following reasons:1. Defendant is charged with Operating While Intoxicated, Third Offense (MCL257.625b(5) and , Operating – No License/Multiple Licenses (MCL 257.301) andAlcohol – Open Container in Vehicle (MCL 257.624a).2. Defendant was in the MDOC at the time of his Arraignment on the Warrant, April 12,or 22, 2019.3. A delay of greater than six months has resulted in prejudice to Defendant.4. Defendant did not cause the delay.5. There is no legitimate reason for the delay.1

6. The Fifth, Sixth and Fourteenth Amendments to the United States Constitutionguarantee the defendant a speedy trial. Barker v. Wingo, 407 U.S. 514 (1972).7. Article 1, §20 of the Michigan Constitution guarantees the defendant a speedy trial.People v. Williams, 475 Mich. 245 (2006).For these reasons, Defendant asks that this Court dismiss the charges against him.Respectfully submitted,DATE: July 24, 2020/s/ Patrick E. NyenhuisPATRICK ERWIN NYENHUIS (P76343)Attorney for Defendant1446 Kensington AvenueGrosse Pointe Park, Michigan 48230Cell: 313.244.35002

STATE OF MICHIGANIN THE THIRD CIRCUIT COURT FOR THE COUNTY OF WAYNEPEOPLE OF THE STATE OF MICHIGAN,Plaintiff,Case No. 2019-003272-01-FHHON. TRACY E. GREENvs.KEVIN COREY CAMPBELL,Defendant./BRIEF TO DISMISS DUE TO SPEEDY TRIAL VIOLATIONNow comes, KEVIN COREY CAMPBELL, (“Defendant”) through his attorney,PATRICK E. NYENHUIS, and petitions this Court to Dismiss all counts against Defendant dueto a violation of Defendant’s Speedy Trial Rights.STATEMENT OF FACTSDefendant is currently charged with one count of Operating While Intoxicated, ThirdOffense Notice, a felony, and two misdemeanors, Operating – No License/multiple Licenses andAlcohol – Open Container in Vehicle. The Final Conference is presently scheduled for July 22,2019, and trial on July 25, 2019.On October 13, 2018, around 11:00pm in the City of Detroit, Officers Shrum and Reyeswere working in the area of Evergreen and Grand River. They observed a burgundy 2003 FordTaurus with Michigan license plate number CGV974 travelling in the same direction of theofficers. The officers observed the 2003 Ford Taurus failing to maintain its lane.3

The 2003 Ford Taurus pulled into a gas station and then left the gas station exiting outonto Evergreen. Officers allege that there was almost a crash with another driver travelling theopposite direction on Evergreen.The officers conducted a traffic stop and identified the Defendant. Officers observed aclear solo cup that smelled of intoxicants and an empty bottle of vodka on the floor behind thedriver seat. The officers requested a Standardized Field Sobriety Test trained officer to assistthem in performing the tests. Officer Grima arrived and gave Defendant the Standardize FieldSobriety Tests. After the tests, Officers Shrum and Reyes placed Defendant under arrest andconveyed him to the Detroit Detention Center. At the location, Defendant refused, or was unableto correctly blow into the Data Master. Officers prepared a search warrant for a blood draw,which was signed by a Magistrate, and transported Defendant to Detroit Receiving Hospitalwhere a blood draw was conducted.On February 11, 2019, the Detroit Police Department received a MSP forensicLaboratory Report for Defendant. Subsequently Defendant was charged.COURT DATES AND TIMELINE1. April 12, 2019 – Arraignment on the Warrant.2. April 22, 2019 – Arraignment on the Warrant.3. May 3, 2019 – Pre Exam Hearing and Preliminary Examination, Judge Michael Wagner.(11 days from Arraignment on the Warrant).4. May 10, 2019 – Arraignment on the Information, Judge Michael J. Callahan. (18 daysfrom the Arraignment on the Warrant).5. May 16, 2019 – Docket Conference, Judge James R. Chylinski. (24 days from theArraignment on the Warrant and six days from the Arraignment on the Information).4

6. May 24, 2019 – Calendar Conference, Judge Kevin J. Cox (Exhibit A: SummaryStatement of Calendar Conference). (32 days from the Arraignment on the Warrant and14 days from the Arraignment on the Information).7. June 21, 2019 – Final Conference, Judge Kevin J. Cox. (60 days from the Arraignmenton the Warrant and 42 days from the Arraignment on the Information).8. June 27, 2019 – Final Conference, Judge Kevin J. Cox. (66 days from the Arraignmenton the Warrant and 48 days from the Arraignment on the Information).9. July 25, 2019 – First Scheduled Trial Date, Judge Kevin J. Cox (Exhibit A: SummaryStatement of Calendar Conference and Exhibit B: Final Pre-Trial Conference Summaryand Firm Trial Date Contract). (94 days from the Arraignment on the Warrant and 76days from the Arraignment on the Information). It is believed this was adjourned overobjection.10. July 25, 2019 – Evidentiary Hearing Before Trial, Judge Kevin J. Cox. (94 days from theArraignment on the Warrant and 76 days from the Arraignment on the Information).11. November 11, 2019 – Show Cause Hearing, Judge Tracy E. Green. (203 days since theArraignment on the Warrant and 185 days since the Arraignment on the Information).12. November 11, 2019 – Pre-Trial, Judge Tracy E. Green. (203 days since the Arraignmenton the Warrant and 185 days since the Arraignment on the Information).13. November 11, 2019 – Second Scheduled Trial Date, Judge Tracy E. Green (Exhibit C:Final Pre-Trial Conference Summary and Firm Trial Date Contract). (203 days since theArraignment on the Warrant and 185 days since the Arraignment on the Information). Itis believed this was adjourned over objection.5

14. February 21, 2020 – Pre-trial, Judge Tracy E. Green. (305 days since the Arraignment onthe Warrant and 287 days since the Arraignment on the Information).15. February 21, 2020 – Order Granting Adjournment – Signed and Filed (Court’sAdjournment for Trial to Writ Defendant). (305 days since the Arraignment on theWarrant and 287 days since the Arraignment on the Information). Defendant was notbrought to the Wayne County Circuit Court from the Michigan Department ofCorrections due to a writ not being issued. It is believed the trial was adjourned overobjection.16. February 24, 2020 – Third Scheduled Trial Date, Judge Tracy E. Green (Exhibit D:Final Pre-Trial Conference Summary and Firm Trial Date Contract). (308 days since theArraignment on the Warrant and 290 days since the Arraignment on the Information). Itis believed this was adjourned over objection.17. June 4, 2020 – Cancelled Jury Trial, Fourth Scheduled Trial Date, Judge Tracy E.Green. (Exhibit E: Register of Actions for Case Number: 19-003272-01-FH). (409 dayssince the Arraignment on the Warrant and 391 days since the Arraignment on theInformation). It is believed this was cancelled due to the COVID-19 Pandemic.18. July 31, 2020 – Pre-Trial scheduled – Judge Tracy E. Green. (466 days since theArraignment on the Warrant and 448 days since the Arraignment on the Information).LAW AND ARGUMENTCriminal defendants are entitled to a speedy trial. This right is guaranteed by statute andcourt rule. Specifically, MCL 768.1 and MCR 6.004. It is also secured by the MichiganConstitution, Article 1, Sec. 20 and by the United States Constitution, Sixth and FourteenthAmendments. A violation of this right is grounds for dismissal with prejudice.6

In this case, the Defendant was accused of Operating While Intoxicated, Third OffenseNotice, Operating – No License/Multiple Licenses and Alcohol – Open Container in Vehicle onOctober 13, 2018. There is currently no scheduled trial date and on July 31, 2020, it will havebeen 657 days since the alleged incidents. Defendant did not cause the delay. There is nolegitimate reason for the delay of 290 days for the February 24, 2020, trial date.A defendant may experience two types of prejudice: prejudice to the person or prejudiceto the defense. People v. Collins, 388 Mich. 680, 25 (1972). Prejudice to a defendant’s personoccurs when oppressive pretrial incarceration causes the defendant undue anxiety and concern.Id. Prejudice to a defendant’s defense occurs when pretrial delay impairs the defense in anyway, such as when it precludes witnesses from being available. In this matter, the body cameraand in car camera was all purged due to time. The latter is considered more serious because theinability of a defendant adequately to prepare the case skews the fairness of the entire system.Barker v. Wingo, 407 U.S. 514, 532 (1972).Prejudice is presumed after a delay of 18 months. People v. Den Uyl, 320 Mich. 477(1948); Collins, supra, People v. Williams, 475 Mich. 245 (2006). A showing of prejudiceresulting from the delay is unnecessary. People v. Lowenstein, 118 Mich. App. 475 (1982). Ifthe defense shows that the delay was excessive and unjustifiable, and that his or her defense mayhave been impaired in some way, the burden shifts to the state to show that the accused was notin fact prejudiced by the delay. Chism v. Koehler, 392 F. Supp. 659, aff’d 527 F.2d (CA6, 1976);Doggett v. U.S., 505 U.S. 647 (1992).Defendant was scheduled to be paroled on or about November 16, 2019, but due to thispending charge, the Michigan Department of Corrections has “flopped” him and he will remainin prison until this case is finished. None of the trial adjournments were because of the7

Defendant or Defendant’s attorney. One adjournment was because the Wayne CountyProsecutor assigned to the case left the office a few days before the trial and another adjournmentwas because Defendant was not brought from the Michigan Department of Corrections to theWayne County court for trial. Delays caused by docket congestion will count against theprosecution. Barker v. Wingo, 407 U.S. 514 (1972); People v. Jones, 121 Mich. App. 484(1982). Unintentional delays, such as crowded courts and overworked prosecutors, are weightedless heavily than intentional delays, but they are still charged to the prosecution. Strunk v. US,412 U.S. 434 (1973). Unexplained delays are charged to the prosecution as well. People v.Bennett, 84 Mich. App. 408 (1978); People v. Davis, 129 Mich. App. 622 (1983). See, also,Doggett v. United States, 505 U.S. 647; 112 S. Ct. 2686 (1992). Defendant never agreed to anyof the delays.Delays are not excused if taken by the trial court because of the illness or death of theassigned judge, People v. Broyer, 394 Mich. 107 (1975), or in order to wait for a Supreme Courtruling on the validity of the offense, People v. Farmer, 127 Mich. App. 472 (1983). It isbelieved that one of the delays is because Judge Kevin J. Cox transferred from the criminal courtdivision to the civil court division of the Wayne County Circuit Court and Judge Tracy E. Greentook over the criminal docket of Judge Kevin J. Cox.8

CONCLUSIONWHERFORE, Defendant, based on the Motion and Brief, requests this Honorable Courtdismiss the charges against him.Respectfully submitted,DATE: July 24, 2020/s/ Patrick E. NyenhuisPATRICK ERWIN NYENHUIS (P76343)Attorney for Defendant1446 Kensington AvenueGrosse Pointe Park, Michigan 48230Cell: 313.244.35009

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