Wednesday, June 7, 2017

My wife, Carol, walks into court this morning, and she should walk out with all charges dismissed against her -- if the judge has integrity and is doing her job

Carol Tovich Shuler
My wife, Carol, returns to court at 9 a.m. today, and when the session is over, she should leave without bogus criminal charges hanging over her head.

Do I expect that to happen? No. It would require a judge with integrity and the will to do her job, and I have doubts that Margaret Holden Palmietto is that kind of judge. In our 17 years of fighting legal battles, I've yet to see anyone who is that kind of judge.

Should the charges against Carol -- "assault" on a law enforcement officer and trespass -- be dismissed today? Absolutely.

When Carol was last before Palmietto, the judge said (and I'm paraphrasing), "I'm not going to consider your motions until you have representation or you waive your right to an attorney." Well, Carol now has an attorney. She's a public defender (PD) named Patricia Lillian Poe, and she made an appearance on Carol's behalf on May 15. That means Palmietto has had roughly three weeks, since Carol's had representation, to consider the pro se motions that cite multiple grounds for dismissal.

Carol has talked with Poe once via phone and was told the PD did not have time to meet with her prior to today's hearing. Carol reasonably took that to mean the PD would not have time to file much on her behalf, so she filed three more motions on her own -- two of them citing multiple grounds to dismiss the charges.

In a Motion to Dismiss Based on Defective Probable Cause Statement, etc., Carol shows that the Probable Cause (PC) Statement in her case makes no mention of trespassing. We have no idea what that is based on, so it clearly is due to be dismissed -- and it appears in the docket that Poe has filed a motion to dismiss that. (Note: Carol's Motion to Dismiss Based on Defective Probable Cause Statement is embedded at the end of this post.)

Carol also shows in her motion that the PC Statement raises two incidents of alleged "assault" against an officer -- (1) Carol "barreled headfirst" into Officer Debi Wade; (2) Carol pushed Officer Jeremy Lynn as he burst into our apartment for an unlawful eviction on Sept. 9, 2015.

Carol's motion shows that the Misdemeanor Information (MI) in her case does not charge her with even touching Debi Wade. That charge, therefore, is off the table; even the prosecuting attorney does not buy it and did not bring it. The charge involving the alleged push of Officer Jeremy Lynn is the only one still standing. Here is how Carol addresses that in her motion:

That leaves only the alleged push of Officer Jeremy Lynn. But the affiant, Debi Wade, admits she witnessed no such incident. She claims an unknown individual “advised” her of the push. This is inadmissible hearsay and means there are no facts sufficient to believe Shuler committed any such offense.

The State claims in its opposition that courts can consider hearsay when making probable cause determinations. State v. Turner, 471 S.W. 3d 405 (Mo. App., E.D., 2015.) The Turner case, however makes no such finding. It holds that hearsay can be proper in an affidavit for a search warrant. It does not say hearsay is proper in an affidavit for an arrest warrant, which is the issue in the instant case.

The state makes a couple of other weak responses in its opposition, and Carol knocks both of them out of the park:

The State further claims a motion to dismiss is not the proper vehicle for attacking the sufficiency of the evidence in a criminal case. State v. Halliburton, 11 S.W. 3d 602 (Mo. App. E.D., 1999). But the Halliburton case makes no such finding. It simply finds that the trial court prematurely dismissed the charge without giving the state an opportunity to present its evidence. Here, the state has had ample opportunity to present evidence, and it has failed to do so. The issue in Halliburton is not before this court.

Finally, the State cites Missouri Supreme Court Rule 23.11 for its holding that “an indictment or information shall not be invalid . . . because of any defect that does not prejudice the substantial rights of the defendant.” The State further cites State v. Book, 436 S.W. 3d 671 (Mo. App. S.D. 2014) and claims an MI must only advise the defendant of the charges, and she is not prejudiced if given notice of the charges. The Book case makes no holding that mere notice is sufficient to ensure that a defendant is not prejudiced. Rather, the Book court holds as follows: “Failure to allege an essential element in the information does not automatically require reversal. . . . Rule 24.04(b)(2) provides “[d]efenses and objections based on defects ... in the indictment or information ... may be raised only by motion before trial.... Failure to present any such defense or objection ... constitutes a waiver[.]” There is nothing in the record before this Court indicating Book raised an objection to the sufficiency of the probable cause statement making the misdemeanor information fatally defective by motion before trial.” While Book failed to timely raise objections regarding a defective PC statement, that is exactly what Shuler is doing here.

As the highlighted sections above show, Carol is doing exactly what she should be doing -- raising defects in the PC Statement in motions before trial.

Carol also points out profound constitutional issues that are present in this case:

Shuler has shown there were no lawful grounds to evict. Under longstanding Fourth Amendment law, that means evidence obtained during an unreasonable search and seizure must be excluded. Mapp v. Ohio, 367 U.S. 643 (1961). In the instant case, all evidence was obtained during a search and seizure that violated the Fourth Amendment. Therefore, it all must be suppressed, and there is no factual basis for Carol Shuler’s arrest, incarceration, or a trial.

Assistant Prosecuting Attorney Nicholas Jain is left with no facts and no legal argument. If Judge Palmietto is serious about her oath to uphold the law, she will dismiss the case today. If her main objective is to protect the Greene County Sheriff's Office (and others) from civil liability, she will let the case continue.

We are likely to learn a lot about Judge Palmietto today. If she proves to be a person of integrity, I will be shocked.


Anonymous said...

This is one of the worst "cover your ass" charges I've ever heard of. Break someone's arm and then charge them with a "crime" to cover up. Gee . . . and cops wonder why the public doesn't trust them.

Anonymous said...

Everyone is focused on Trump and Russia, but cases like this -- at the grassroots -- show our democracy is rotting away at our feet.

Steve said...

I wish Carol the very best of luck. But she shouldn't need it.
Luck should never be a factor in law only good judgment.
Here's hoping.

legalschnauzer said...

Thanks for your kind thoughts, Steve. Perhaps the rule of law will rise again.

Anonymous said...

Kick 'em in the nuts, Carol!

Anonymous said...

Officer Jeremy Lynn is a disgrace. He claims a woman pushed him while he unlawfully was breaking into her home? He's lucky she didn't shoot his ass. What a fine example of "manhood."

Anonymous said...

All signs point to this case being politically sensitive, so don't look for it to be resolved quickly. The system doesn't work that way, and I suspect the judge has a lot of people talking in her ear.

Anonymous said...

I hope the public defender proves to be an asset. If you get the right one, I hear, they can be better than a private lawyer.

S C said...

How did it go??

legalschnauzer said...

SC --

The bad news: The charges were not dismissed. The good news: That wasn't even taken up. The best news: The public defender, Patty Poe, made a positive impression on both Carol and me. She filed a motion to have the trespass charge dismissed, and that seemed to be the primary matter the judge considered. The asst. prosecutor who has been handling the case wasn't there, and the young woman who was pinch-hitting for him said she had not been able to review the motion, so the judge set the followup hearing for next Wed. (6/14). Patty P. told us in advance the system moves slowly, and she figured the judge would not address our broader dismissal motions today, especially at a cattle-call sort of sessions. But Patty did seem to get that Carol was a victim, not the other way around. "You don't look like the sort of person to 'barrel' into somebody headfirst," she said. That gave us the impression she had reviewed our docs and had a fair understanding of the case, considering she is swamped with cases. Will have more details in post tomorrow. Thanks for asking.

S C said...

Oh wow, nice! Great news re Ms. Poe and the others who impressed upon you some grace after everything that has transpired.

S C said...

p.s. i wish it had been good news/good news, but it sounds promising

Anonymous said...

Congratulations,Carol and LS! Had a feeling (based on absolutely nothing but good will) that you would like Ms. Poe. As an old friend (now deceased) used to say, "The wheels of the gods grind slowly." Keep the faith!

Anonymous said...

Still waiting on the dash-/body-cam footage. Since you were supposedly "so dangerous" that they needed assault weaponry to illegally evict you, it's not going to be a good look if they claim there is none, or, worse, destroy/suppress that evidence.

legalschnauzer said...

@5:46 --

We've discovered something interesting about questions such as yours. Carol asked in discovery -- before the PD came on board -- for any audio or video that was taken from any kind of device during the eviction. That was one of several requests where we got an answer like this: "The State is not AWARE of any such audio or video." That made us realize we are dealing with two distinct entities here. One, of course, is the Greene County Sheriff's Office, and the other is "The State," in the form of lawyers from the Greene County Prosecuting Attorney's Office. The answer noted above says "the State" (prosecutors) isn't AWARE of any such audio or video (which likely is in control of sheriff's office). The answer doesn't say such audio/video doesn't exist; it suggests merely that prosecutors aren't AWARE of any, probably because they haven't asked -- and they don't want to ask.