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Thursday, June 22, 2017

After 17 years of courtroom frustration and disappointment, Carol finally gets a victory she richly deserves, as Missouri trespass count is dismissed


Margaret Holden Palmietto
After 17 years of legal battles and being cheated at almost every turn, Carol and I experienced a first yesterday at the Greene County Courthouse in Springfield, Missouri. We had filed a motion showing that part of the opposing party's case had no basis in fact or law and was due to be dismissed. And -- gasp! -- the judge agreed, essentially saying, "That count is garbage, and it's outta here!"

We're talking about the trespass count in State of Missouri v. Carol T. Shuler (No. 1631-CR07731 at case.net). It wasn't a monumental legal victory, paling in comparison to, say, Brown v. Board of Education. And it was not a complicated or wide-ranging issue. The trespass count was the only matter on the table yesterday, and as we showed in a post on Monday, it was clear (under the law) how it had to be decided. In fact, we never saw any written opposition from the State on our Motion to Dismiss Count II. (The motion is embedded at the end of this post.)

But we've been in that position many times before. Time and again, we've had motions that had to be granted -- even motions with no opposition from the other side -- only to have judges (and yes, they were corrupt judges; there is no other way to put it) rule against us. It's happened in Alabama; it's happened in Missouri. It's happened in state court; it's happened in federal court. It's happened with white judges and black judges -- Republicans (mostly) and Democrats.

But Judge Margaret Holden Palmietto did not buy any of the State's BS yesterday -- and it offered up plenty. She was calm and reasoned and treated prosecutor Nicholas Jain with more tact than he deserved. But the judge, after listening to argument back and forth for about 10 minutes, essentially said, "Mrs. Shuler, you are right. This count is due to be dismissed."

I should point out that this was Carol's victory. Technically, I'm not a party to the case, but I very much was involved in all the events leading to the criminal charges against Carol. I saw every relevant event that happened, from a few feet away, and I know the charging documents are packed with lies from cops. But yesterday was a time for me to play bystander. I sat near the back of the courtroom, and in a facility with horrible acoustics, struggled to hear what was being said. You might say I was a highly engaged spectator -- and blogger/journalist.

But it was Carol's day, and her victory, and I was immensely proud of her. She didn't really do much, but sometimes, that's the best thing a client can do in a courtroom -- if you have a trustworthy attorney, sit back and let them (to borrow a phrase from Steve Winwood) "roll with it." That's what Carol did, and Public Defender Patty Poe did a cracker-jack job on Carol's behalf.

Without sounding like a suck-up (I hope), I also have to give props to Judge Palmietto. She is the first judge I've seen in 17 years who shows signs of having the integrity and intelligence to decide a case correctly -- and stand up to powerful and corrupt forces on the other side. I continue to brace myself for the possibility that she might turn in the other direction, but for now, I think she rocks.

Poe's primary work came in preparing a motion that really could not be beaten. The key point was that the Probable Cause Statement against Carol said not one word about trespass; it presented zero evidence to support the count, so it had to be dropped. The facts and the law were stacked in our favor. But that doesn't mean the morning didn't feature some drama -- or black comedy, depending on your viewpoint.

A trip to the courthouse would not be complete without some ugliness and Nicholas Jain provided it yesterday. Prosecutors apparently feel it is their duty to argue the slightest motion, even though they have no valid legal or factual argument to stand on. Jain tried to pull one out of his ass anyway, and in the process, made himself look like an utter boob. He also confirmed what many citizens think about prosecutors -- that they only care about winning and have zero interest in justice.

Based on what I could hear, and what Carol reported to me later, here are some of the "arguments" Jain appeared to make yesterday:

(1) Hey, let's change the charging documents!

Jain's position: We need to schedule a hearing for this afternoon, so I can prepare an amended Probable Cause Statement and Misdemeanor Information, and we can argue them then.

Palmietto's position: Bub, these alleged offenses took place in September 2015, and the one-year statute of limitation ran out in September 2016. It's now June 2017, nine months after time for any amendment, and you decide your charging documents need to be changed? Not gonna happen. Next.

(2) But . . . but . . . she pushed on the door

Jain's position: Mrs. Shuler pushed against the door when officers tried to enter the apartment. This must prove something, but I have no idea what that might be.

Palmietto's position: If you don't know what argument you are trying to make, I can't help you. What does the door have to do with trespass? Next.

(3) But . . . but . . . she filed a notice of appeal on the eviction

Jain's position: Mr. and Mrs. Shuler filed a notice of appeal, so that means Mrs. Shuler knew about the eviction.

Palmietto's position (best I can tell): And that's supposed to mean she "knowingly" trespassed? Are you on acid? The filing of a notice of appeal means the Shulers believed the trial court got the eviction ruling wrong. They went to the trouble and expense of filing a notice of appeal, and they did it in a timely fashion that, by law, put a stay on the eviction. That tells me that Mrs. Shuler believed she was lawfully at the apartment, that she did NOT knowingly trespass. Again, are you on acid?

Carol Tovich Shuler
Carol and I have "won" a lawsuit before. The "INP and DIS" case my brother, Paul, filed -- essentially seeking to have us declared wards of the state -- wound up in our favor. But it was dismissed on Paul's own motion. Unless I'm forgetting something, yesterday was the first time a judge looked at a significant motion, heard both sides of the argument, and ruled correctly, in our favor.

When Carol and I walked out of the courthouse and into the bright sunshine -- and oppressive Missouri heat -- we looked at each other as if to say, "How do you react when you win in court? Are we supposed to high five?"

To be sure, we are not out of the woods on this criminal matter. Both counts against Carol are misdemeanors, but the remaining count -- "assault" on a law enforcement officer -- is the more significant of the two. Based on the charging documents, the "assault" count is every bit as weak as the trespass count was. In fact, it should be dismissed on almost a half dozen grounds -- and it's been established that it's too late for the prosecution to amend its flawed documents. But will Palmietto continue to show the kind of integrity and level head she displayed yesterday? We hope so, but one never knows if the law actually is going to rule the day in a courtroom.

The next hearing in Carol's case is set for July 19, and we have our first extended meeting with Patty Poe today. We don't know what's around the next corner, but for now, we have one victory in our pocket -- and that's a new. and most welcome, feeling.

So, how did we celebrate? Well, Carol has grown fond of the cupcakes at Price Cutter supermarkets here in fashionable Springfield, so we stopped and got a half dozen of those. I got a cup of frozen chocolate yogurt (with sprinkles!) at a local establishment. We were able to enjoy those treats only because of loyal readers and supporters who have helped keep us afloat.

We never would have made it to yesterday's victory without the help of others. I guess I have a decent vocabulary, but I don't have the words to adequately express my thanks to some very special people who have saved us. Perhaps there will be more victories in the future -- and justice, finally, will prevail.



22 comments:

Anonymous said...

That is great news!!! I can not think of anything better than feeling like you had your day in court where a judge gave you a fair hearing, then ruled for you. Something needs to be done about prosecutors who view the whole thing as some type of football game and he is on one side, the defense the other. To them it's not about the truth, it's about beating the other team anyway you can. I had to testify in federal court years ago. The defense was the one who ordered me to court that day. I could not helped it that the truth I knew favor the defense more than it did the gov't. The truth was the truth and it didn't matter which side asked me, they both got the same story. The gov't lawyer did not care for the truth, he only wanted to win. Every question he asked me would begin with, "Is it not true" that your name is, is it not true that you live at, is it not true that on Dec 3, 1983. It never crossed my mind to say anything I did not know as the truth, but the gov't lawyer twisted my answers in his attempts to make me out a lair. I will never forget that day. It was the day that I saw Perry Mason was just tv and that our courts was not a place for the truth. It was where one side vs the other and truth had nothing to do with any of it. I'm sorry for getting off track. I'm happy for your wife.

Anonymous said...

Yippee for Carol! I was so pulling for Carol.

Anonymous said...

This makes my day! Love it!

Anonymous said...

The prosecutor wanted to amend the charges 21 months after the alleged incident? What a turd!

Anonymous said...

Nicholas Jain = dipstick of the year

Anonymous said...

So glad to hear the public defender is doing a good job for Carol.

legalschnauzer said...

@9:17 --

Yes, I think she is, and we appreciate Ms. Poe's efforts. We will learn more about where things are headed between now and July 19. The remaining count -- "assault on a law enforcement officer (LEO)" is every bit as weak as the trespass count was. Essentially the same argument that ruled the day yesterday can be used on that count, and it's been established that it's too late for amendment of the charges.

Anonymous said...

Awesome! Double awesome!!

Anonymous said...

Schnauzer, why is the assault count as weak as the trespass count?

legalschnauzer said...

There are 4-5 reasons, but the main one might be that there is no accuser. Carol has a Sixth Amendment right to "confront her accuser," both trial and pre-trial, and there is no named accuser. Just as with the trespass count, there is no evidence, not from a named accuser. Author of Probable Cause statement said an unnamed person "advised" her that Carol pushed Officer Jeremy Lynn. The PC author admitted she did not see it. No accuser == no evidence, the same issue we had yesterday.

This doesn't even take into account that Carol didn't do what is alleged. The count would have to improve substantially to be "weak." It's sub-weak.

Anonymous said...

But the lady cop claimed Carol head-butted her, right?

legalschnauzer said...

Debi Wade, the female cop, claimed Carol "barreled into her, headfirst." One, that's absurd factually. I saw the whole event, and nothing like that occurred. But more importantly, from a legal standpoint, Carol isn't charged with doing that. Check the Misdemeanor Information. She is only charged with "pushing" Jeremy Lynn, and there is no accuser for that.

Anonymous said...

I never understood the trespass charge. You were at the apartment too, right? So why weren't you charged with trespass?

legalschnauzer said...

@10:11 --

Good point. Yes, I probably should have been charged, too. But it's hard to say because there is zero information about what the trespass was based on. Prosecutor Jain hinted yesterday it was based on the fact we had not left the apartment, even though we knew about the eviction. If that was the case, then yes, I should have been charged, too.

Of course, Jain conveniently failed to mention that we have a right to challenge the trial-court ruling via an appeal, and we had filed a notice of appeal that put a stay on the eviction. Also, the judge had issued only an interlocutory order, with more issues to be decided on Oct. 1, 2015, so the landlord had no court order allowing for eviction. Will be explaining that in more detail in upcoming posts.

e.a.f. said...

CONGRATS TO CAROL! and you,. Lets hope this is the first of many wins!

Anonymous said...

In terms of military tactics:

Charging your wife and not you (the possible actual intended target based on some possible conspiracy theories) with trespass could be the the possible execution of an envelopment by flanking maneuver.

The effect on your blogging is much the same as if you had been arrested.

ymmv

Anonymous said...

Whoop! Whoop! Fantastic news and Congrats to you both, SC

Anonymous said...

Aboard the Eliza Battle Mary Mac asked Admiral Tyron why VMA AW 224 would fly all the way back to the US to swap a aircraft. The Admiral replied. All aircraft on a Carrier are in one Carrier Air Wing. The Commander of this Air Group [CAG] is in charge of all the squadrons. Squadrons have their own Commanding Officer. On April 8, 1972 ,the CAG who was a A-7 pilot was lost over North Vietnam. The new CAG was a A-6 pilot. The CAG's A-6 will be 500 and the commanding officer of the squadron's A-6 will be 501. They may fly other a/c on missions. VMA AW 224 needed a newly refurbished A-6 for the CAG. Because space is limited on a Carrier, The squadron had to swap a A-6 for 155708 NL 500 at the Naval Repair Facility in Virginia. Sheldon inquired as to why they swapped NL507. Captain Marshall said that he would take it from here. The Captain replied that when he said NL507 was 155584, he was baiting the enemy. This BuNo is not on the list of the 19 A-6B aircraft. When ever a A-6 Squadron deployed in Vietnam, it was assigned 2 or 3 A-6B aircraft. The reason VMA AW 533 was deployed to VMA AW 224 in March 1972 was to supply two A-6B Mod O aircraft with support crew. A-6 B Mod O aircraft have small antenna that distinguish them from A-6A aircraft. The NL 522 aircraft that the Navy claimed Captain Wilson went missing in was one of VMA AW 533's A-6B Mod O aircraft. The BuNo 154145 that the Navy claimed Captain Wilson was in was not a A-6B aircraft. The Question is where are the A-6B aircraft VMA AW 224 went to combat with in December 1971. An inventory of VMA AW 224's aircraft show 508 and 509 missing. A-6 507 would be the third A-6B. The Question is how do we know A-6 507 is a A-6B because it does not have visible antenna. Of the 19 A-6B aircraft , John Hopkins Lavatories modified 3, which had a different system and they always stayed in the same squadron. They did not have any visible external appearance. VMA AW 224's original A-6B aircraft were 155628 NL 507, 155629 NL 508 and 155630 NL 509.
VMA AW 224 was days from the end of its deployment when Captain Wilson was alleged to have gone missing in June 1972. VMA AW 533 was deploying to Vietnam [Thailand] in June 1972 and needed their A-6B aircraft back. After NL 522 departed the Coral Sea, The Navy said Captain Wilson was "lost" in NL 522. The Naval Repair Facility "lost" 154145. My Question for you. When Vulture 1, Vulture 3 and Vulture 4 mined Haiphong Harbour, Where was Vulture 2?

Anonymous said...

Aboard the Eliza Battle Admiral Tyron was briefing the crew on the disappearance of Lt McDonald . He reported that the Eliza Battle knew 5 0f the 6 crew members that were involved in the CO of Vma aw 224's secret plan to fly to Cherry Point for his daughter's high school graduation. He asked Captain Marshall if he knew of any clues to his identity. The Captain replied that Major Cathcart had given us the name in the tribute to Lt McDonald. When reading the tribute, one must remember Major Cathcart was in Japan when Lt McDonald went missing. He got his information from someone aboard the Coral Sea. The clue that Lt McDonald went with the CO of Vma aw 224 does not mean he was in the same A-6 aircraft. For the CO of Vma aw 224's secret plan to be executed, he needed someone in the navigator's seat of KA6D NL 514 with enough rank to order the pilots to fly to Da Nang. Major Cathcart's tribute reads that this Marine is a test pilot. KA6D aircraft did not require a navigator because they had a advanced navigation system. But Vma aw 224 would be without one of their 4 tanker aircraft. The situation was created for the need of this advanced navigation system by stripping the navigation system from A-6 NL 507. One of the people with this power would have been the Operations Officer. A-6 NL507 could make this journey with another A-6A, but would be limited to visual flight rules which would prolong the journey. There is a photo of KA6D NL 514, in a book written about Vma aw 224, which shows this aircraft sitting on the tarmac at Cherry Point. Marine Squadrons on shore did not have tanker aircraft. Why was it at Cherry Point ?

Itsmehoney said...

Congratulations to you both 😍 I highly admire people with gumption, and you two are, without a doubt, dedicated to the truth gumptioneres. You aren't just dedicated to one another, you are dedicated to truth and justice. I'm proud to 'know' you.

legalschnauzer said...

"Honey" --

Thanks for the kind words. They are very much appreciated.

Anonymous said...

Aboard the Eliza Battle Admiral Tyron was briefing the crew on the disappearance of Lt McDonald. Sheldon asked if the tanker A-6 was needed to refuel A-6 507. The Admiral replied that A-6 507 with external fuel tanks could carry the same amount of fuel as the A-6 tanker. To answer your Question, The need for the tanker was created to replace the A-6 navigator with someone else. Bob Yancey said that the Marine in the navigator's seat would have to be a Major to out rank Captain's Wilson, Williams and Angus. Captain Marshall asked Bob Yancey What made him think the crew member in the navigator's seat was a Marine. VMA AW 224's Aircraft Maintenance Officer was a Navy Lt Commander, who would out rank the captains. Admiral Tyron said for this unknown person,we have the choice of a Marine Operations Officer or A Navy Aircraft Maintenance Officer. John Yancey's solution was to add them together and divide by 2 and the answer will be a Marine Aircraft Maintenance Officer. Captain Marshall thanked John for his solution but it would have been physically impossible for the Marine Aircraft Maintenance Officer to be in the navigator's seat. Mary Mac asked for him to please explain. Captain Marshall responded that according to documents on micro film in the Library of Congress, Lt McDonalds flight leader in BENGAL 504 became the Marine Aircraft Maintenance Officer on May 29, 1972. This is the same day the CO of VMA AW 224 was relieved of his Command of the Squadron. WE do not need to know the name of the unknown person because he returned safely to the Coral Sea in KA-6D NL514.