Thursday, July 20, 2017

Carol arrived for a court appearance yesterday in Springfield, MO, only to learn cops and prosecutors are dragging their feet on turning over discovery

Carol Tovich Shuler
My wife, Carol, had a court appearance yesterday and arrived to find -- get this -- the prosecutors and cops who brought the bogus "assault" case against her are stonewalling on discovery.

Let's allow that to settle in for a moment. Prosecutors and cops deal every work day with allegedly criminal matters. They know discovery is the process where both sides gather evidence -- via interrogatories, depositions, requests for production of documents -- to make their cases. For a defendant, like Carol, it's a critical component to proving her innocence, avoiding jail time, and restoring her good name.

Now, let's allow this to percolate a little more. Prosecutors and cops waited until the last possible day to beat the one-year statute of limitations and bring trespass and "assault on a law enforcement officer" charges against Carol, related to our unlawful eviction on September 9, 2015, in Greene County, Missouri. (Judge Margaret Holden Palmietto already has dismissed the trespass claim.) They waited another four months-plus to seek Carol's arrest -- and that came only after they knowingly had sent a summons to the wrong address, causing Carol to be hit with a failure-to-appear charge.

In short, the "legal professionals" had 16 months to get their case prepared and have evidence ready -- knowing it likely would be requested in discovery -- and they either don't have it or are griping about turning it over. Here is a message for Nicholas Jain, the chief prosecutor in Carol's case, and his boss, Greene County Prosecuting Attorney Dan Patterson: If your case is so weak that you don't want to turn over discoverable information, don't bring it.

Defendants once were not entitled to much discovery for criminal cases. That changed in 1963 with a landmark U.S. Supreme Court case styled Brady v. Maryland, 373 U.S. 83, 83 S.Ct. (1963), In Alabama, the right of defendants to discovery is spelled out in Rule 16, Alabama Rules of Criminal Procedure (ARCP). The key passage is in the comments to Rule 16:

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requires the state to disclose any information it has which is favorable to the defendant. Requiring the disclosure of evidence in the state’s possession which is material to the preparation of a defense is an extension of this requirement of due process.

Since the defendant may not know exactly what evidence the prosecution has, it would be difficult to know whether it would be material to his defense. The state is, therefore, required to disclose exculpatory evidence.

Missouri law is even more straightforward, as found at Rule 25.04, Missouri Supreme Court Rules. It states, in part:

If the court finds the request to be reasonable, the court shall order the state to disclose to the defendant that material and information requested which is found by the court to be relevant and material to the defendant's case.

Public Defender Patty Poe, who is representing Carol, told us yesterday that she had filed discovery requests with Nicholas Jain, and he had responded to some requests, while objecting to others -- claiming we were not entitled to certain information. Poe works dozens of cases like this at a time, and she seems to know Carol is entitled to a broad range of information, anything that would be material to her defense.

Poe intends to file a Motion to Compel, designed to force Jain to turn over discoverable information. A hearing is set on that motion for August 16. (See, No. 1631-CRO7731.) If Judge Palmietto orders information be produced, and Jail fails to comply, that could be grounds for sanctions, including dismissal of the case against Carol, Poe said.

If the case is tossed in the trash (where it belongs) on those grounds, we would be fine with that. It should be dismissed on multiple other grounds, under Missouri's Castle Doctrine Law, plus violations of Carol's constitutional rights under the Fourth Amendment (unlawful search and seizure) and Sixth Amendment (failure to allow Carol to confront her accuser). Police actions in our eviction represent a Forcible Entry and Detainer under Missour law, and the case against Carol should be dismissed on those grounds, too.

What are we seeking in discovery, and what are the likely basis for Jain's objections? We will examine that question in an upcoming post.

For now, our primary discovery requests, and the prosecution's responses, are embedded below.


Anonymous said...

Carol should just admit she did something wrong, which she did.

Anonymous said...

Does the right to a speedy trial apply in this situation? Could a dismissal motion be filed?

Anonymous said...

This is no surprise at all. They expected Carol to cave and cop some ridiculous plea, with Carol admitting to something she didn't do. The prosecutors weren't expecting to have to do any work, so they are pissed that Carol is making them do work.

legalschnauzer said...

@1:59 --

You ask a complicated question. Yes, the right to a speedy trial applies in all criminal cases. But Carol, while acting pro se, already has filed an appropriate dismissal motion -- plus the case, by law, has to be tossed on 5-6 grounds. So, yes, Carol has a right to a speedy trial, but the case can't lawfully go to trial, because her constitutional rights (4th and 6th amendments) -- plus her rights under Missouri law -- have been trampled.

I don't think the judge has even read the motions Carol filed, pro se, and that concerns me. We are trying to be patient with a system we know is slow. But truthfully, the entire case -- both counts -- should have been dismissed months ago. The assault count is no stronger than the trespass count, which has been dismissed.

legalschnauzer said...

@1:28 --

Care to fill us in on the "something" that Carol did wrong?

Anonymous said...

Congrats to @1:28 for the dumbest comment I've read on any blog or forum . . . ever.

S C said...

I'm sorry but breaking someone's arm is a huge deal. Can you imagine if OJ's arm had been broken by law enf when he was arrested? Lord. He's have sued and kept LAPD in court for years, no matter his guilt or innocence.

legalschnauzer said...

SC --

You are on target. And as I wrote the other day, a comminuted fracture like the one Carol had, puts you at risk for shock, blood loss, nerve damage, kidney damage, and more. It puts your whole health at risk. That's what these SOBs did to her.

And you raise an interesting point about O.J. Cops probably treated him way better than Carol has been treated in Missouri. And to extend that point, cops wouldn't dream of roughing up O.J. inside his own home, as they did with me in Alabama. O.J. was a suspected double murderer, and my "crime" was blogging. In fact, mine was a totally civil matter, with no one even alleging a crime was involved.

I'm sure O.J. thinks he's been dumped on, but he's been treated like fine china, compared to Carol and me. It's hard to the public to comprehend the level of violence that has been directed at us -- by cops.

Anonymous said...

I agree with @2:06. This shows the prosecutors are lazy. It also shows they have no case.

Anonymous said...

Glad to see the public defender is going after their lazy asses.

Gomers Piles said...

You claim that "Prosecutors who brought bogus case against my wife now are dragging their feet on producing discovery"?


Anonymous said...


Why is 1:28's comment the dumbest you've ever heard? I'll admit it doesn't say a whole lot. I'd call it sort of a "nothing burger" comment. But I don't see it being the dumbest comment I've ever heard, far from it.

legalschnauzer said...

@6:31 --

I'm not @2:35, but since I don't know if he will be back to see your question, I thought I would respond -- from my perspective. I doubt it's the dumbest comment I've ever read, but it did make me guffaw when I read it. Here' why: We aren't arrested and prosecuted in this country because we did "something wrong." We are arrested/prosecuted because there is probable cause to believe we committed an act that is described, by statute, as a crime.

Heck, I stopped to fill up the car once and left the gas-tank top sitting on the trunk of the car. When I drove off, it went clanging to the concrete, and I stopped and retreat and pick it up -- feeling a bit stupid. Did I do "something wrong"? Yes. Was I arrested for it? No, it's not a crime.

In Carol's case, the prosecution's own evidence shows she did not commit the specific crime with which she's charged -- assault on a law enforcement officer. I'm not aware of anything Carol did "wrong," much less committing a crime. Given that officers had no grounds to be on the property that day, and we were in lawful possession of the apartment, Carol couldn't have done anything "wrong." Hell, under Missouri's Castle Doctrine Law, she would have been within her lawful rights to shoot the bastards as they were breaking into our home.

My verdict? Not the dumbest comment I've ever read. But it's pretty darned dumb, enough to make me laugh out loud.

Anonymous said...

The legal system--there is no "justice" system IMHO--is simply that, a system, no more no less. It may have originally been established for the good/benefit of--and to maintain--a civil society but has morphed into something unrecognizable. Keep up the hammering--maybe you can knock out a few gears!

legalschnauzer said...

@1:51 --

You are on target. The problem, of course, is that the public pays for the system via our taxes, so we are being screwed. We are entitled to a justice system, and we should stand up and demand that we have one.