Monday, June 19, 2017

Missouri officials trample Carol's Sixth Amendment rights, by denying her the opportunity to "confront her accuser" -- or to even know his or her name

How many ways can Missouri authorities violate one person's constitutional rights? In the case of my wife, Carol -- falsely charged with "assaulting a law enforcement officer" and trespass -- we've shown they violated her Fourth Amendment right to be free from unlawful search and seizure. Carol has filed a motion to have the charges dismissed on Fourth Amendment grounds. (See document embedded at the end of this post.) But the constitutional violations hardly end there.

What about Carol's Sixth Amendment right to "confront her accusers in a criminal case," which is known as the Confrontation Clause. In essence, it holds that if someone accuses you of a crime, you have a right to know who that person is -- and you have a right to confront that person via cross-examination at trial. Historically, the Confrontation Clause has been considered fairly important in the U.S. justice system; it prevents an anonymous individual from accusing someone of a crime and then hiding from the consequences of making an accusation that might be false.

But that is exactly what is happening in Carol's case -- and it suggests that word of the Confrontation Clause, proposed to Congress in 1789, has not reached outposts such as Springfield, Missouri.

Charging documents in Carol's case suggest she allegedly trespassed and committed two acts of "assault" on law enforcement officers -- one by "barreling headfirst" into Officer Debi Wade, and one by pushing Officer Jeremy Lynn after he had burst through the door of our duplex apartment to begin an unlawful eviction. But the Probable Cause (PC) Statement and Misdemeanor Information (MI), taken together, tell a curious story. In fact, the two documents conflict wildly.

In the MI, Prosecuting Attorney Dan Patterson charges Carol with trespass and states evidence to support the charge will be in the PC Statement. Just one problem: The PC Statement says not one word about trespass. In other words, the charge has zero evidence to support it, and by law, must be dismissed. (More on that in an upcoming post.)

In the PC Statement, Officer Debi Wade claims Carol "barreled headfirst" into her, and that is laughably false. (I saw the interaction between Carol and Officer Wade from about 15 feet away.) But regardless of what I think (and know) about Wade's claim, PA Patterson doesn't think much of it either. He doesn't charge Carol with it, so that is out the window already.

That leaves only the allegation that Carol pushed Officer Jeremy Lynn, which also is laughably false. (I saw that interaction from about five feet away.) But problems with that charge go way beyond its falsity. Consider these words from Officer Wade's PC Statement:

Upon initial contact in the entryway of the residence, Roger's wife, Carol T. Shuler, physically assaulted Capt. Jeremy Lynn. I was not witness to that assault, however, I was advised that Carol first pushed the door from inside when Capt. Lynn attempted entry with the key, then got physical with him once inside the threshold and repeatedly pushed him.

Notice what is happening here: Wade admits she did not witness these events, but claims an unknown person -- someone who apparently has no name -- "advised" her of what happened. This amounts to what might be called "sub-hearsay." It likely would be inadmissible hearsay for someone with a name -- say, Officer Joe Jones -- to "advise" Wade of what happened. But this is worse than hearsay; as we noted in an earlier post, it's like being accused of a crime by a "ghost," someone from the spirit world who cannot be seen, heard, or identified by name.

On the surface, this notion is so absurd as to be almost comical. But it's serious business; Carol has been arrested and incarcerated twice -- and faces bogus criminal charges that could send her to jail for a year -- based on the word of a ghost. And it might be the most blatant violation of Sixth Amendment rights in the history of the United States.

Has Carol had an opportunity to "confront her accuser"? Hell, she doesn't even know his or her name.

Typically, the right to confront your accuser involves cross-examination at trial, and Carol's case has not reached that point. But Crawford v. Washington, 541 U.S. 36 (2004), one of the best-known Sixth Amendment cases in modern history, makes it clear the Confrontation Clause goes beyond trial proceedings. From Crawford:

The text of the Confrontation Clause reflects this focus. It applies to "witnesses" against the accused — in other words, those who "bear testimony. . . . " An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.

Various formulations of this core class of "testimonial" statements exist: "ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, . . . statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, . . . " 
Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath was not dispositive.

Let's review what happened in Carol's case, based on the standard set out in Crawford:

(1) Someone made a formal statement to a government officer, "bearing testimony" against Carol;

(2) It was in an affidavit, a form of ex parte testimony to which the Sixth Amendment applies;

(3) It reasonably is expected to be used "prosecutorially," at a later trial.

(4) It was a statement taken by a police officer in the course of interrogations.

The term "at a later trial" indicates the Confrontation Clause applies to pre-trial activities, including the filing of an affidavit, such as a PC Statement. For good measure, a Missouri case styled State v. Stewart (MO Ct. of App., 2009), borrows from Crawford to drive home the same point. From Stewart:

Finally, while "[t]he Sixth Amendment's Confrontation Clause provides that, '[i]n all criminal prosecutions, the accused shall enjoy the right . . .  to be confronted with the witnesses against him,'" Crawford v. Washington, 541 U.S. 36, 42 (2004), that safeguard applies only if the out-of-court statement was "testimonial" in nature. The Court in Crawford did not give a "comprehensive definition of 'testimonial'" but stated that "it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations."

Bottom line: The Sixth Amendment's Confrontation Clause ensures that you cannot be accused of a crime by a "ghost." Your accuser must be identified, even in pre-trial documents, and that has not happened in Carol's case. It means she never should have been arrested (twice), incarcerated (twice), or subjected to any criminal proceedings.

It's had to imagine anyone's Sixth Amendment rights ever being battered in a more flagrant fashion. Judge Margaret Holdem Palmietto should have dismissed the case against Carol and issued sanctions against the cops and prosecutors responsible for it. That hasn't happened yet, but it had better happen soon. The law demands it.



Anonymous said...

Aboard the Eliza Battle Admiral Tyron was briefing the crew on the mission to find the truth about the disappearance of Lt McDonald. He instructed the crew to refer to the briefing Captain Marshall gave in Roger's May 3 post. Correct to read that Vma aw 533 departed the Coral sea on June 20, 1972. The Admiral continued. Vma aw 224's public Facebook page for june 10 has a picture of a A-6 intruder NL 501 that the 1972 crew member of the Coral Sea claims is the A-6 155709 NL501 that Lt McDonald was flying when he went missing. This crew member claims that this photo was taken in March 1972 before Lt McDonald went missing and that A-6 155646 NL501 is a replacement A-6. Bob Yancey said that the photo does not show the BUNO of the A-6 and is not dated, to which the Admiral added that one of the F-4 a/c in the photo was lost in April 1972 , which would date the photo being taken before Lt McDonald went missing. Sheldon responded that it did not matter because that dog won't hunt. Captain Marshall told Sheldon that he was correct and the dog also took the bait. Mary Mac asked for some one to please explain. Captain Marshall explained that during the Vietnam War, the enemy was not clearly identified , so the strategy was to expose yourself and let the enemy take a shot at you to expose himself. Some one wants to discredit the Eliza Battle's claim that A-6 155709 NL 501 was never onboard the Coral Sea. Refer to the tribute by Major Cathcart to Lt mcDonald and the picture of the tail section of the A -6 showing tail number 10 . We know this tribute contains coded messages. This tells us that Lt McDonald went missing in A-6 NL 510. Ms Chappelle interrupted the Captain to remind him that Roger's readers are not going to believe he is communicating with the Ghost of the Eliza Battle. Captain Marshall replied that he had a second source. The documents fromLt McDonald's May 3, 1972 disappearance have ascended from the bowels of the US Navy's bureaucracy to a roll of micro film [ Reel 254] at the Library of Congress. The documents show Lt McDonald was the pilot of BENGAL 510 and his flight leader was BENGAL 504. Mary Mac responded that Lt McDonald's room mate aboard the Coral Sea commented on how amazing the crew member's photo collection was. Why did he not mention that Lt McDonald's A-6 was NL 510. The Captain responded that was a question for Ben Moody.

Anonymous said...

I got an education this morning. Hate to sound stupid, but I didn't know there was a Confrontation Clause. I know about it now. Thanks for the civics lesson.

legalschnauzer said...

@7:16 --

You're welcome. Got to admit that, before I started researching this post, I didn't know much about Confrontation Clause myself.

Anonymous said...

You're working in your yard one day when a neighbor leans over the fence and says, "I hear there is a warrant out for your arrest."

"What?" you say in stunned disbelief.

"You'd better check it out," the neighbor says. "I heard it on the news."

You gather yourself and drive to the police station to see what's going on. A woman at the front desk says, "Yep, you're wanted for bank robbery. You'd better report to booking."

"What?" you say. "I've never robbed a bank in my life. Who told you I robbed a bank."

"The warrant doesn't give the name of the accuser," the woman says. "But someone advised one of our officers that you robbed a bank."

"I was arrested on the word of someone, and you don't even know his name?"

"Yep, happens all the time. You have a problem with that?"

legalschnauzer said...

@7:59 --

Hah! That's a great story, in the absurdist tradition.

It's damned funny, too, except it represents exactly what is happening to Carol.

Anonymous said...

Aboard the Eliza Battle Admiral Tyron continued his briefing. In his Tribute to Lt McDonald Major Cathcart writes that the official information available reads that Lt McDonald was heading to the Gulf of Tonkin at a high speed and low altitude. When his flight leader reached the Gulf, Lt McDonald was no where in sight. In 1990 ,The POW Network using "raw data from the US Government " says that Lt McDonald's A-6 was shot down.
From the Library of Congress microfilm : On June 3,1972 A Board of Inquiry released it's findings.There were statements from 5 witnesses. Two Navy ships had tracked Lt McDonald,s A-6 ,on radar, 25 miles out to sea. Their opinion was that during the course of a low level high speed egress from the target area, First Lieutenant/Captain Williams' aircraft impacted with water.
Admiral Tyron replied , that explains why the search vessels did not find any remains. To which Captain Marshall replied," Then how did the Soviet Republic of Vietnam recover Captain Williams' remains which were returned to the US in 1989."

Anonymous said...

Carol was arrested, thrown in jail, and faces trial, and she has no named accuser? That's unreal, nutty, wacky . . .

legalschnauzer said...

@8:20 --

Tell me about it. She actually was arrested twice and incarcerated twice -- all with no named accuser. We are not a democracy anymore if a bogus, piece-of-crap case like this can get this far. And the judge keeps acting like it's a difficult case to decide. I'd say it's a joke, but it's worse than that. Doesn't rise to the level of a joke.

Anonymous said...

How is this ghost going to testify, walk in with a sheet over him?

legalschnauzer said...

@8:44 --

Darned good question. Maybe he'll pull a "Casper the Friendly Ghost" kind of thing.

Anonymous said...

Aboard the Eliza Battle Admiral Tyron and Captain Marshall were discussing the mission to find the truth about Lt McDonald's disappearance. Admiral Tyron questions why the statement, contained on the microfilm at the Library of Congress , that the navigator,Captain Williams, radioed that BENGAL 510 would be feet wet in two minutes changes to Lt McDonald made the radio call in later documents. The Flight leader's, BENGAL 504, statement reads he never reported Lt McDonald missing because he expected to see him in the debriefing room. The Strike Controller's statement reads that Bengal 504 radioed him and reported that he and BENGAL 510 were headed back to the Coral Sea. Admiral Tyron asked Captain Marshall for his opinion. Captain Marshall replied that he believed Lt McDonald was not the pilot of BENGAL 510. Lt McDonald was the pilot of BENGAL 507, with another pilot as navigator, on a flight to El Torro California to get A-6 155708 NL 500. The Commander of Vma aw 224 was the pilot of BENGAL 510 and after his "bombing" mission he flew east of the Coral Sea, then turned back to the coast and landed at Da Nang air field. There he met BENGAL 507 and switched places with the pilot who was with McDonald. BENGAL 510 encountered mechanical problems and never departs Da Nang for the Coral Sea resulting in the missing air crew from the Coral Sea.

Anonymous said...

Key information:

"The term "at a later trial" indicates the Confrontation Clause applies to pre-trial activities, including the filing of an affidavit, such as a PC Statement."

This tells me the case should be dismissed.

Anonymous said...

Why didn't they choose this "ghost" to write the probable cause statement? It's a fellow officer, I presume. Why didn't he give his name and prepare the sworn PC affidavit?

legalschnauzer said...

@12:07 --

Very intriguing question. Why choose an affiant who admits she didn't see what happened, but must rely on the word of a "ghost." Makes me think someone is being protected.

Anonymous said...

"But that is exactly what is happening in Carol's case -- and it suggests that word of the Confrontation Clause, proposed to Congress in 1789, has not reached outposts such as Springfield, Missouri."

Hah! Good one, Schnauzer. Justice hasn't reached a lot of outposts, like Birmingham, AL, and Springfield, MO.

Shaheed said...

May be the ghost of "what's his name". Arnot the friendly Sherieff?

Anonymous said...

What happened to the commenter who used to come on here all the time to defend the landlord and the cops who broke Carol's arm? He seems to have vanished.

legalschnauzer said...

@3:36 --

Yes, I'm pretty sure that was Craig Lowther, the sleazy lawyer who helped set all of this in motion. I'm guessing he decided that coming on here to tussle with me was not such a good idea, plus he wasn't getting anywhere with it.