Thursday, August 3, 2017

Missouri prosecutor Nicholas Jain likely is dragging his feet on discovery because he's trying to protect those responsible for bringing bogus case against Carol

Carol Tovich Shuler
Why is Missouri prosecutor Nicholas Jain dragging his feet on producing discovery in the bogus "assault on a law enforcement officer" case brought against my wife, Carol?

I have three guesses: (1) Jain knows he doesn't have a case, and he doesn't want to produce information that will prove that; (2) Jain knows the case was brought only to intimidate and harass us, and he doesn't want to produce information that will prove that; (3) Jain knows the case likely involves criminal actions by prominent individuals -- including his boss, Greene County Prosecuting Attorney Dan Patterson, and Sheriff Jim Arnott, plus Springfield lawyer Craig Lowther and landlord Trent Cowherd -- so he doesn't want to produce information that might prove that.

Regardless of which guess proves correct -- and all three might be correct -- this is certain: Jain is conducting a deceptive dance to avoid providing, at all costs, certain discoverable information. And that likely means his No. 1 goal at the moment, related to Carol's case, is to cover ass -- both his own, plus asses belonging to others.

Jain is resorting to one of the crooked lawyer's favorite tricks -- making citations to law that are not remotely in line with what the law actually says. This is apparent from checking Carol's "Motion for Disclosure . . . " and Jain's "State's Response . . . ", plus Carol's "Motion to Compel . . . " and Jain's "Opposition to Motion to Dismiss . . . ", plus Carol's "Motion to Dismiss . . . . All five documents are embedded at the end of this post.

Let's examine several components of Jain's con game, followed by Carol's responses, based on actual law:

(1) Attacking the state's evidence

Jain: He claims a motion to dismiss is not the proper vehicle for attacking the sufficiency of evidence in a criminal case, citing State v. Halliburton, 11 S.W. 3d 602 (Mo. App. E.D., 1999).

Carol: She claims Halliburton doesn't say that. From her Motion to Dismiss Charges: "The Halliburton case . . . 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."

The Verdict: Carol is right, and Jain is selling the court a load of horse feces.

(2) A Probable Cause Statement based on hearsay

Jain: He claims hearsay is fine in a Probable Cause Statement, citing State v. Turner, 471 S.W. 3d 405 (Mo. App., E.D., 2015).

Carol: She claims Turner doesn't say that. From her motion: "The Turner case . . . 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 Verdict: Carol is right, and Jain is selling the court a load of horse feces.

(3) A matter of prejudice

Jain: He claims a defective Probable Cause Statement is fine as long as it does not prejudice the substantial rights of the Defendant. He also says the state must only advise the Defendant of charges, and there is no prejudice if such notice is given, citing State v. Book, 436 S.W. 3d 671 (Mo. App., S.D., 2014).

Carol: She says, in so many words, "Bullshit!" From her motion: "The Book case makes no holding that mere notice is sufficient to ensure that a defendant is not prejudiced. Rather, the Book court found as follows: "Failure to allege an essential element in the information does not automatically require reversal. . . . Rule 24.04(b)(2) provides 'defenses and objections based on defects . . . in the indictment or information . . . may be raised only by motion before trial. . . . Failure to present 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."

The Verdict: Carol is right, and Jain . . . well, you know about his habits with horse feces.

(4) Defendants have no right to discovery?

Jain: He claims, under Missouri law, there is "no 'general right of discovery' in criminal cases," citing State v. Aubuchon, 381 S.W. 2d 807 (Mo., 1964).

Carol and Roger say: This is so off the charts that Carol doesn't even address it in her documents, but I will address it here. As you will note, the Aubuchon case is more than 50 years old, and it once was an accurate statement of Missouri law. But it hasn't been accurate for a long time. This is from State v. Smothers, 605 SW 2d 128 (Mo: Supreme Court, 1980): "On October 9, 1973, this Court, as part of its Rules of Criminal Procedure, provided for pretrial discovery in criminal cases. See present Rule 25. Rule 25 represents an attempt to provide the process due the people of Missouri (the public, the victims, and the accused) in the administration of criminal justice. Mo.Const., art. I, §§ 2 and 10. See ABA Standards Relating to Discovery and Procedure Before Trial (1970)."

The Verdict: There has been a right to pretrial discovery in Missouri criminal cases for more than 40 years, and for Jain to hint otherwise suggests he is desperate. It also suggests he is a world-class distributor of horse feces.

The evidence is clear that Jain is trying to pull a con game on the court. Why? In an upcoming post, we will look at several of our discovery requests that might be particularly sensitive.

(To be continued)

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