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Thursday, September 21, 2017

Subject of law-enforcement violence against Carol, leading to her broken arm and surgery, takes center stage at hearing yesterday in Greene County, MO


Judge Margaret Holden Palmietto
Police violence against my wife, Carol -- and not the assault "cover charge" cops caused to be brought against her -- was the focus of a hearing yesterday at the Greene County Courthouse in Springfield, Missouri.

It was the first time Carol's injuries -- her left arm was broken so severely that it required hospitalization and trauma surgery (see here and here) -- have been revealed or discussed in court. What impact did that have on Judge Margaret Holden Palmietto? She has a pretty good poker face on the bench, so it's hard to answer that question. But a reasonable person might have thought, "The cops claim Mrs. Shuler assaulted one of their own -- Officer Jeremy Lynn -- and yet Mrs. Shuler was the one who wound up in the hospital, with a broken arm that required surgery. Who assaulted whom here, and did cops push for criminal charges against Mrs. Shuler to help cover up their brutal acts against her?"

Assistant Prosecutor Nicholas Jain has been stonewalling on producing discovery in the case, so Public Defender Patty Poe filed a Motion to Compel on Carol's behalf, and a hearing on that motion was conducted yesterday. Discussion quickly turned toward the injuries Carol sustained during our unlawful eviction from a duplex apartment, owned by landlord Trent Cowherd, in September 2015. (Motion to Compel is embedded at the end of this post.)

Oral argument centered around four items the prosecution has failed to produce, and Poe spells them out in items 6 and 7, on page 2 of the motion:

6. Additionally, Ms. Poe emailed Assistant Prosecutor Nicholas Jain for additional discovery that falls outside of the media category. [Exhibit B].

7. That request included:

a. Copies of all communications between or among the Greene County Sheriff's Office regarding the eviction dated September 9, 2015.

b. Notes or reports from Deputy Scott Harrison regarding Mrs. Shuler's injuries.

c. Statements of any officer present at the scene on September 9, 2015.

d. Citizen complaints or allegations of excessive violence or force by the Greene County Sheriff's Office in the past five years.

Palmietto took the matter under advisement and scheduled the next appearance for Oct. 4. (See docket entries for 1631-CR07731 - ST V CAROL T SHULER at case.net.) The judge appeared set to order production of items a, b, and c. Item d was the main point of contention.

Jain argued that citizen complaints of excessive force were not relevant, based primarily on his interpretation of a case styled State ex rel. City of Springfield v. Brown, 181 SW 3d 219 (Mo. Court of Appeals, Southern Dist., 1st Div. 2005) Poe argued that Carol's injuries made any citizen complaints about excessive force relevant. From the Motion to Compel:

10. The last requested piece of material consists of citizen complaints or allegations of excessive violence or force by the Greene County Sheriff's Office in the last five years. The reason for such a request is based on the fact that after this altercation between Ms. Shuler and the Greene County Sheriff's Office, Ms. Shuler had to be taken to the hospital for a broken arm.

Our impression was that this might have been the first time Palmietto (or Jain, for that matter) had heard about Carol's injuries. They were mentioned prominently, with copies of X-rays, in at least one motion Carol filed while acting pro se. (See Amended Motion to Dismiss Charges Under Missouri's Castle Doctrine Law . . . ) Unfortunately, we've seen no sign that Palmietto has read any of Carol's pro se motions; the judge certainly has not heard oral argument on any of them, or ruled on them.

What do yesterday's developments mean for a bogus criminal case we've had hanging over our heads for eight months now? That the judge now knows Carol was brutalized by Greene County deputies seems to be a positive. At the same time, we continue to pick up troubling vibes from those involved in the case.

Carol filed pro se documents in March, April, and May that should have led to the case being dismissed; by law, it should not have dragged on this long. But Palmietto seems to have ignored those motions, and both she and Poe seem fine with the case going to trial -- even though the case cannot go to trial, on multiple constitutional and state-law grounds.

So, where is this case headed? You might say that Carol and I are "traffled" -- a combination of troubled and baffled. About all we can say for sure is that we should know more on Oct. 4






34 comments:

Anonymous said...

I would take this as good news. Bravo!

Anonymous said...

Hard to believe Carol's injuries are just now being raised in this case.

legalschnauzer said...

@1:00 --

I agree. Carol's injuries actually were raised in at least one of her pro se Motions to Dismiss, filed back in May. But the judge seems determined to ignore Carol's pro se motions, which I'm pretty sure is contrary to law. Yesterday was the first time the issue was raised and discussed in open court.

Anonymous said...

Seems odd that prosecutors would bring a dubious case and then try to withhold discovery. If their case is so solid, they shouldn't have a problem producing discovery.

legalschnauzer said...

@1:22 --

Good point. Of course, the problem for the prosecution is that their case isn't solid. In fact, it's nonexistent. Even the "victim," Officer Jeremy Lynn, admits he caused contact with Carol, not the other way around.

Tim said...

Roger, is this a jury trial (I hope)?

legalschnauzer said...

Tim:

As I understand it, could be either -- Carol's choice. By law, it can't go to trial and must be dismissed on about a half dozen grounds. Who knows if this judge considers small details like that.

Anonymous said...

This case is super easy, on at least two grounds:

(1) If you bother to read the probable cause statement, you see there is no probable cause. There is a claim by an unidentified individual (a "ghost," as you call it) that Carol pushed Jeremy Lynn, but the affiant admits she didn't see it. That's not probable cause -- case dismissed.

(2) If you bother to read the officers' narratives, which you have published, you see that Officer "Victim" Lynn says he initiated contact with Carol, by grabbing her. That means Carol did not assault him, in the "victim's" own words -- case dismissed.

Why is this joke of a case still going on?

Anonymous said...

It appears clear to me that your lawyer is both diligent and competent.

legalschnauzer said...

@4:05 --

You summed it up nicely. There are other grounds for dismissal, but you really don't need to go beyond these two. I would only add that the case would have to improve to be a joke.

legalschnauzer said...

@4:06 --

I generally have held a favorable view of Ms. Poe, as I've written here before. But I don't understand why she suddenly is resistant to seeking dismissal of a case that, by law, has to be dismissed on 5-6 grounds. It shouldn't be that hard; in fact, the motions already have been filed for her, before she ever got involved.

BTW, she is not my lawyer, she's Carol's lawyer/public defender.

Anonymous said...

So nice to see tax dollars wisely used in Missouri. I assume it's a right-leaning state, filled with people who supposedly oppose government waste?

legalschnauzer said...

@4:14 --

Oh yes, very right, especially the southern half of the state. Southern Missouri is basically Alabama, with snowballs.

Anonymous said...

Hopefully the judge knows how to read the law. Success to the Shulers, I am praying.

Anonymous said...

Your public defender got one of the counts dismissed, correct? I wonder why she isn't doing the same for the remaining count. Have you asked her why? It seems like she's doing everything else, maybe she interprets the law differently than you.

legalschnauzer said...

@8:02 --

Yes, she got one of the counts dismissed, and I don't know why she isn't doing the same for the remaining count (assault on LEO). It is no stronger than the trespass count, but she seems to treat it like it's legit -- and it isn't. One problem is that the PD's case load is so heavy that it's almost impossible to communicate with her. We asked today for a copy of a document that never was sent to us, and her response was that she's so swamped it would be at least 10 days before we could get the document. This was the kind of thing that made us concerned about having a public defender in the first place, especially in Missouri, which has one of the most poorly funded, overwhelmed PD systems in the country.

I get the impression that she does "interpret" the law differently from Carol, but that's a copout -- and the PD is wrong. The law around Carol's case is not complicated, and it's not open to a lot of different interpretations. Anyone who is interested can log into case.net, examine Carol's pro se motions, and check the citations to law to see if they are accurate.

No one has to take my word for it. It's public record, and Carol welcomes scrutiny of anything she's filed. If anyone does the legwork and concludes that the citations to law in her documents are incorrect, please let us know. We'd be happy to check it out.

Anonymous said...

Do you think she doesn't believe Carol? Or, is it that she may agree with her on some points of the law, but doesn't see the motion to dismiss as the proper avenue? Seems like she's happy to go to bat at trial for Carol though. I've heard some PDs won't even go to trial and force their clients to take pleas even if they're innocent.

legalschnauzer said...

Doesn't believe Carol about what? Not sure I follow.

Why would the motion to dismiss not be the proper avenue? Carol's Fourth Amendment and Sixth Amendment rights were violated; both the PC Statement and Misdemeanor Information are defective; the cops had no lawful grounds to even be on the property, much less break into our home; the "victim" admits he caused contact with Carol, not the other way around; even if Carol caused contact (and the "victim" admits she didn't), that would not be unlawful under Missouri's Castle Doctrine Law.

There is all kinds of Missouri law where a Motion to Dismiss is proper vehicle when Constitutional violations are in play, the PCS and MI are defective, and the "victim's" own words show Carol committed no crime. I would invite you to look up such dismissal cases yourself.

What makes this really important is that such motions have to be brought pretrial. If you don't, the issue essentially is waived. That causes you to run the risk of being convicted by a (possibly) compromised judge or an ignorant, bored jury. And you lose the right to raise those issues on appeal.

Any PD who is happy to go to bat at trial for a client, should be happy to go to bat pretrial to get a worthless case dismissed. It's not that hard. She doesn't just represent Carol at trial; she represents Carol pretrial. And the PD has an obligation to handle pretrial issues properly and pursue legitimate grounds for dismissal. If she doesn't do it, you are looking at ineffective assistance of counsel issues.

Again, if anyone thinks Carol doesn't have legit grounds for dismissal, I invite them to check her pro se documents and point out anything that is lacking. I think they will have a hard time finding anything.

Re: your final point: Nobody is going to force Carol to plea to something that even the "victim" admits she didn't do. I can guarantee you that Carol will not take a plea in this case. If anyone thinks she is going to take a plea, they are way off target.

Anonymous said...

I think Carol should trust her attorney. She did spend years studying the law after all. You two did not.

Otherwise, why doesn't Carol just represent herself?

legalschnauzer said...

Ms. Poe still is on the case, so Carol is trusting her. But Carol has concerns, and so do I.

This is Roger talking, not Carol: I don't care how many years Ms. Poe (or any other lawyer) spent studying the law. I care about her knowledge of the law relevant to Carol's case and her willingness to zealously and fully represent Carol -- in all phases of the process, including pretrial. I'm concerned with Ms. Poe's ability and willingness to apply the relevant law. I want results, and it should not be hard to get them considering the prosecution has no case.

The issues in this case are not complicated, and there is no excuse for thinking about a trial when there can't be one, under the law.

This seems to be only common sense. You pursue all avenues for winning this case. If you have grounds to get a case dismissed, you should pursue that aggressively, rather than risk going to trial. I assume you agree with that.

Anonymous said...

@10:41 -- "Otherwise, why doesn't Carol just represent herself?" Because Judge Palmietto forcibly assigned her to an overworked public defender. (Roger will have to point that post out, but he's written about it.) Oy vey.

legalschnauzer said...

@11:48 --

Yes, Carol was told she was not going to be allowed to leave the courtroom unless she filled out a public defender application. Here's the post:

https://legalschnauzer.blogspot.com/2017/06/my-wife-carol-walks-into-court-this.html

Here's key part:

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.


Carol's has had a lawyer since May 15, and her pro se motions still have not been considered. That's more than four months they've been sitting there, and the judge has been aware of them.

Here's another relevant post:

http://legalschnauzer.blogspot.com/2017/05/patricia-lillian-poe-public-defender-we.html

Anonymous said...

LOL. I knew you'd sour on Poe, just like you do every other lawyer. You're smarter than them all. (which is why you've done so well in all your previous pro series litigation, btw).

I called it way back when you first mentioned Poe. LOL.

e.a.f. said...

if this case goes to court and a judge finds in favour of Carol and dismisses charges laid by the prosecutor it could mean a very big law suit for the "justice system" in the area. Even judges who are in to impartial may not want that.

Perhaps they all think that if this drags out long enough Carol will give up. obviously they don't know Carol that well.

However, now that the damage has been brought to court and the judge is aware, that is a good thing. It makes it harder for the police/prosecution to argue their case. good luck

Anonymous said...

Looks like she gave Carol the option to waive counsel instead of filling out an application. My advice, have Poe explain why she isn't arguing Carol's motions or a motion to dismiss. I bet she can point out why you're wrong on several points. I'm not a lawyer, so I don't think I'm qualified to review your motions and tell you why you're off point, but I'm sure she can.

legalschnauzer said...

@8:49 --

You admit you don't know what you're talking about, but you want to give us advice, and you make assumptions about what Ms. Poe can or cannot do -- on a subject about which you admit you aren't qualified. Got it.

legalschnauzer said...

e.a.f --

Yes, the case is in "drag out" mode -- and it has been for a while. These folks definitely don't know Carol, and there is going to be a lawsuit filed soon, regardless of findings in this joke of a criminal case.

legalschnauzer said...

@12:39 --

So you think the case, by law, should go to trial? Tell us why, oh prescient one.

Share with us the thought behind your comment, if there is any thought behind it.

Anonymous said...

Surely there are recordings of the incident. That would solve this immediately. You could see who is telling the truth and who is in the wrong. Cops almost always have at least audio when a person in the back of a unit. That audio would clear up if she was thrashing around in the back as the police claim she was and you say she wasn't. That would solve most of the case right there.

legalschnauzer said...

@12:19 --

A few responses/clarifications:

(1) Our discovery request asks for all "media" connected to the eviction, including dashcam footage etc. We've received only a 911 call (made by Burrell Health) and a few photos of Carol's injuries. The prosecution is stonewalling on the rest. I will be writing about this in upcoming post.

(2) As reported here, Carol had a comminuted fracture, which is a break into more than two pieces, which generally is caused by trauma, such as a car accident. It happened here from cops yanking on Carol's arms (while she was seated on the ground) in an upward and backward motion. But no way it happens from being handcuffed and seat-belted and flailing around in backseat of patrol car. We would like to see footage of Carol in backseat, but evidence already shows she didn't flail around and break her own arm.

(3) As for solving the case, you might be thinking ahead to the civil case we are going to file shortly. In the current criminal case, the only charge remaining is that Carol "pushed" Officer Jeremy Lynn, "causing contact" with him that amounts to assault of an LEO under Missouri law. But Lynn's own written report shows he grabbed Carol, causing contact with her. So that solves the criminal case right there; Jeremy Lynn admits Carol did not cause contact with him. The events you describe certainly will be central to the civil case.

Bottom line: The criminal case already is solved and it's been due to be dismissed for a long time, on multiple grounds. It's just a matter now of getting Carol's PD and the judge to understand that. Also, the prosecutor could understand that and drop it's own case, but it's unlikely he has enough integrity to do that.

Anonymous said...

what is the maximum penalty if Carol is found guilty?

legalschnauzer said...

@4:48 --

She is charged with a Class A Misdemanor: https://scholar.google.com/scholar_case?case=16685760700519629092&q=565.083&hl=en&as_sdt=4,26

The maximum penalty is one year imprisonment: http://law.justia.com/codes/missouri/2016/title-xxxviii/chapter-558/section-558.011/

Anonymous said...

"Bottom line: The criminal case already is solved"

As you have demonstrated repeatedly, there is no criminal case.

"and it's been due to be dismissed for a long time, on multiple grounds."

See above. It should have been dismissed the first time the judge read it.

"It's just a matter now of getting Carol's PD and the judge to understand that."

They already understand it--they need to nip this abuse of prosecutorial authority in the bud, stop the game-playing with the sheriff's department and dismiss this piece of crap.

"Also, the prosecutor could understand that and drop it's own case, but it's unlikely he has enough integrity to do that."

Has nothing to do with integrity. You're dealing with the legal mafia and you're not part of the family.

legalschnauzer said...

@6:52 --

You said a mouthful, especially with this:


Has nothing to do with integrity. You're dealing with the legal mafia and you're not part of the family.