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 case.net, 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.