Despite attorney's claim, a defendant cannot face a criminal count that isn't "plainly stated" in charging documents, under both Missouri and federal law

Carol Tovich Shuler

Can a defendant face a criminal count that is not mentioned in charging documents? In other words, can you face a criminal charge that, on paper, does not exist?

An attorney connected to my wife Carol's case in Missouri suggests the answer is yes. Missouri and federal law say the answer is no. Just another case of a lawyer knowingly spreading horse manure? The answer probably is yes.

The issue arises from Officer Debi Wade's claim in her Probable Cause (PC) Statement that Carol "barreled head first" into her during our unlawful eviction in September 2015. Anyone who knows Carol must chuckle at that assertion, but it's a serious matter. Such an act could be construed as "Assault on a Law Enforcement Officer," and that's the one charge Carol still faces for an alleged push of Officer Jeremy Lynn -- which Lynn himself admits, in his incident report, didn't happen.

The Lynn charge, at least, is mentioned in the Misdemeanor Information (MI), which is the official charging document in Missouri. That's more than can be said for Debi Wade's "barreling" allegation, which is mentioned only in her PC Statement -- the document that, under Missouri law, is supposed to provide evidence to support the MI. Wade's allegation is nowhere to be found in the MI, so that means Carol isn't charged with it, right?

Well, not according to our lawyer contact. Said lawyer suggests that, because Wade is author of the PC Statement, her allegations automatically are incorporated into the MI. Just one problem with the lawyer's interpretation: It's way off target. (The PC Statement and MI are embedded at the end of this post.)

A single Missouri case tells us so. The case is styled State v. Metzinger (Mo. Ct. of Appeals, 2015), and it shows that the lawyer in question is wrong on at least three grounds:


(1) A case is due to be dismissed if the information is insufficient, and it is insufficient if it fails to allege facts constituting an offense. From Metzinger:

The trial court dismissed the charge on the basis of a deficiency in the information – specifically, its failure to allege facts constituting an offense . . . The trial court heard arguments on Defendant’s motion to dismiss the information, but it did not hear evidence on the question of Defendant’s guilt or innocence.

What do we learn? A case is toast if the information is deficient. Guilt or innocence isn't an issue when prosecutors bring deficient charges.


(2) The charges in an information are important, based on the U.S. Constitution and the Missouri Constitution. From Metzinger:

The Sixth Amendment of the United States Constitution and article I, section 18(a) of the Missouri Constitution guarantee a defendant the right “to be informed of the nature and cause of the accusation . . . .” Rule 23.01 provides that the indictment or information shall “[s]tate plainly, concisely, and definitely the essential facts constituting the elements of the offense charged . . . .” Measured by these standards, the test of the sufficiency of an indictment is whether it contains all the essential elements of the offense as set out in the statute and clearly apprises defendant of the facts constituting the offense in order to enable him to meet the charge and to bar further prosecution.

What do we learn? The information in Carol's case alleges no facts that constitute an offense regarding Debi Wade. Thus, Carol's guilt or innocence is not an issue. There is no charge involving Debi Wade.


(3) An information is not just words on paper. It has an important purpose, under the law. From Metzinger:

One purpose of an indictment or information is to “permit[] the trial court to determine whether sufficient facts are averred to support a conviction. . . . ” Thus, “[a]n indictment is bad and is properly dismissed if all the facts stated are true, and yet the accused can be innocent of the crime intended to be charged, or if the acts alleged in the indictment if proven do not constitute a violation of the law. . . . ” Defenses based on defects in the . . . information are generally required to be raised by motion before trial[.] . . . 

What do we learn? The court cannot determine if facts could support a conviction on the Debi Wade claim because no facts are presented in the information about the Debi Wade claim.  An "indictment (or information) is bad if all the facts stated are true, and yet the accused can be innocent of the crime intended to be charged." Well, the information clearly is bad if no facts are stated at all.

(Note: Carol has filed a pre-trial motion pointing to defects in both the PC Statement and MI that should force dismissal of the case. We've seen no sign that Judge Margaret Palmietto has read the motion. That's troubling, given that Carol has a constitutional right to have this matter resolved in a speedy fashion.)

Why did the prosecutor fail to include Debi Wade's claim in the MI? We don't know, and it's not Carol's duty to find out. It's the prosecution's duty to properly bring its case. On the Debi Wade claim, they failed miserably.