Thursday, November 30, 2017

Not content to blow smoke up our butts about trespass issue, Patty Poe also spewed rubbish about Missouri Castle Doctrine and its impact on Carol's case


Patty Poe
As she was unleashing a monstrous lie about plans for deputies to arrest Carol for trespassing, Missouri public defender Patty Poe also was blowing plumes of smoke up our fannies about another legal issue -- one that actually applies to the case and presents grounds for dismissal.

We are talking about Missouri's Castle Doctrine Law, which allows for the use of force to protect the home. In Carol's case, it now is clear she did not use force against deputies who unlawfully entered our home for an eviction in September 2015; Officer Jeremy Lynn, the "victim" of Carol's alleged assault, admits he caused physical contact with Carol, not the other way around -- and that means Carol is not guilty of the "assault" charge against her.

Even if Carol had caused physical contact with Lynn, she would have been acting lawfully under Missouri's Castle Doctrine Law. We know that, despite the following words that Poe sent to us in an August email:

Castle Doctrine does not apply in Carol's case. Pursuant to RSMo 563.031 law enforcement are exempt from the protections of the castle doctrine. What matters is were the law enforcement officers reasonably believe they are executing an arrest (RSMo 563.046). In Carol's case, based on the execution for possession, the law enforcement officers thought they were reasonably executing an arrest for trespass.

We've already shown that Poe's last sentence is off target by the length of several Midwestern cornfields. But her statements regarding the Castle Doctrine also are wildly off base. Missouri's law is not much different from one in Indiana, which specifically allows a citizen to shoot a "public servant" (including a cop) he believes is unlawfully entering his residence. Here's how we summarized the two laws in a previous post:


Our research on the Indiana and Missouri laws shows that, while the language varies between the two, the main difference is this: The Indiana law specifically includes public servants (law-enforcement officers, etc.) among those against whom physical force can be used when they appear to unlawfully be entering a residence. The Missouri law, on the other hand, does not exclude law enforcement types from being the targets of physical force under such circumstances.

Both laws also allow for the use of deadly force against cops who appear to be making unlawful intrusions into a residence. Bottom line: It's a bad idea for cops in Indiana or Missouri to enter a residence without knowing for sure they have lawful grounds to be there.

In our situation, there were at least 10 reasons cops did not have grounds to be there. And Carol had a reasonable belief cops were unlawfully entering our residence, especially since she knew we had filed a Notice of Appeal the day before, putting a stay on execution of the eviction.

So where did Poe come up with her contention that the Missouri Castle Doctrine did not apply in our case? We can only assume she pulled it out of her ass -- or maybe she just enjoys lying straight to the faces of her clients. Let's examine Poe's two claims regarding the Castle Doctrine:

(1) RSMo 563.031 excludes law-enforcement officers --  What does RSMo 563.031 actually say? Here it is, in pertinent part:

563.031. Use of force in defense of persons. — 1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person, unless:

  (1) The actor was the initial aggressor; except that in such case his or her use of force is nevertheless justifiable provided:

  (a) He or she has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; or

  (b) He or she is a law enforcement officer and as such is an aggressor pursuant to section 563.046;

Poe apparently believes item (b) exempts law-enforcement officers from the Castle Doctrine. But it clearly does not do that. It simply says that officers, in instances of entry into a residence, are an aggressor, by definition. In other words, officers (by their job descriptions) are the ones who can seek lawful entry into a private citizen's home, not the other way around -- but if the occupant has reason to believe the officer is attempting to enter unlawfully . . . well, the officer could have problems on his hands.


(2) RSMo 563.046 excludes officers who reasonably believe they are executing an arrest -- What does RSMo 563.046 actually say? Here it is, in pertinent part:

563.046. Law enforcement officer's use of force in making an arrest. — 1. A law enforcement officer need not retreat or desist from efforts to effect the arrest, or from efforts to prevent the escape from custody, of a person he or she reasonably believes to have committed an offense because of resistance or threatened resistance of the arrestee. In addition to the use of physical force authorized under other sections of this chapter, a law enforcement officer is, subject to the provisions of subsections 2 and 3, justified in the use of such physical force as he or she reasonably believes is immediately necessary to effect the arrest or to prevent the escape from custody.

This one is easy to deal with. The statute clearly involves possible use of force in making an arrest or preventing an escape from custody. The officers' own written statements show they were at our residence to conduct an eviction (although it was an unlawful eviction), and there is no indication an arrest was planned or that there were grounds for an arrest -- and Carol certainly was not in custody.

Even if an arrest had been in the picture, Sec. 563.046 includes the following language:

The use of any physical force in making an arrest is not justified under this section unless the arrest is lawful or the law enforcement officer reasonably believes the arrest is lawful, and the amount of physical force used was objectively reasonable in light of the totality of the particular facts and circumstances confronting the officer on the scene, without regard to the officer’s underlying intent or motivation.

It is "objectively reasonable" for an officer to break a tenant's arm while executing an eviction? Uh, I don't think so -- and even the Missouri deputies aren't vacant enough to make that assertion.

Wednesday, November 29, 2017

Report that judge forced Senate candidate Doug Jones off Siegelman defense is wildly deceptive -- portraying Jones as a hero, when he was anything but that


Doug Jones and Don Siegelman (with daughter Dana
and wife Lori)
(By Amy E. Voigt)
A federal judge forced Doug Jones off the Don Siegelman defense team, according to an al.com report yesterday that is misleading and deceptive (at best), knowingly false (at worst).

The article, by Amy Yurkanin, is at odds with Jones' own testimony before the U.S. House Judiciary Committee in 2007. Is the al.com article just a case of shoddy reporting? Or is it a plant by Jones' right-wing supporters -- including Karl Rove, Bob and Rob Riley, and Bill Canary -- to soothe progressives' concerns about Jones' deplorable treatment of Siegelman?

My guess is it's the latter. And it might be driven by a new poll that shows Roy Moore leading Jones by five points in the U.S. Senate special election in Alabama -- to be decided on Dec. 12. Despite numerous reports about Moore and sex-related misconduct involving teen-aged girls, Jones appears to be losing. Did that drive Jones' right-wing supporters to plant the al.com story in an attempt to appeal to Siegelman voters, who probably are less than thrilled with Jones? The answer probably is yes, and they likely are the same right-wing thugs who caused Siegelman to be prosecuted and sent to prison in the first place.

As we've reported here numerous times, Jones charged Siegelman $300,000 for a criminal defense, did almost nothing on the matter, and then bailed out. We've seen no sign that Jones ever returned the money he was paid, for services he did not render. That's about as classless a move as one can imagine in the attorney-client arena -- and quite a few progressives now might be wondering what that says about Jones' integrity.

The al.com piece appears to be a deliberate attempt to obscure what really happened with Jones' "representation" of Siegelman. From the Yurkanin article:

A federal judge ordered Jones off the Siegelman case because of his involvement in related cases during his time as U.S. attorney. Even though he did not represent Siegelman in 2007, Jones still spoke out against his conviction at the (Judiciary Committee) hearing about selective prosecution.

Is the reporter here poorly informed, or is she deliberately misleading her audience? My guess is the latter.

As any informed Alabama citizen knows, there were two Siegelman trials. One in the Northern District of Alabama (Birmingham), involved Dr. Phillip Bobo and allegations of Medicaid rigging. The prosecution dropped the charges after U.S. Judge U.W. Clemon made a number of evidentiary rulings that essentially gutted their case. The second case, in the Middle District of Alabama (Montgomery), primarily involved allegations of bribery -- with both Siegelman and co-defendant Richard Scrushy being convicted, in what generally is considered the most outrageous political prosecution in U.S. history.

The Birmingham case is the one where the court did force Jones off the Siegelman defense team. From Jones' testimony before the House Judiciary Committee:

Other than an initial contact with the Government to make sure that they were not going to seek arrest and perp walk the Governor, I had nothing to do with the defense of the Birmingham case. The Government made it clear from the outset that they were going to seek to have me recused because of my involvement in allowing the case to go forward against Dr. Bobo when I was U. S. Attorney. While I disagreed with that position, the Court ultimately held that I was precluded from representing the Governor in that particular matter.

OK, this establishes that the court blocked Jones from participating in the Birmingham case. But the al.com piece never mentions the first case. It mentions only the Montgomery case -- the one where Siegelman was convicted -- and gives the clear impression that a judge forced Jones off that matter. That is absolutely false, as Jones' own words before the Judiciary Committee make clear:

Because of a trial conflict in the spring of 2006, and the Governor’s insistence on a speedy trial before June 2006 primary, I had no real choice but to withdraw as lead counsel. However, facing incredible challenges in sifting through mountains of discovery in a short period of time, Gov. Siegelman was the beneficiary of exceptional legal talent lead by attorneys Vince Kilborn, David McDonald and Redding Pitt. But at the end of the day, despite acquittals on an overwhelming number of the charges, matters involving Mr. Scrushy and one obstruction of justice count did stick, and Gov. Siegelman was convicted. As you are aware, following sentencing, an appeal bond was denied and he was shackled and taken into custody from the courtroom.

From reading the al.com article, one could almost see Jones as a hero in the Siegelman case -- the guy who could have saved the governor, if only a judge hadn't forced him off the case. That, however, is pure rubbish. Jones left the Montgomery case of his own accord, because of his own conflict, and we've seen zero evidence that he even had the decency to return Siegelman's $300,000 -- a sum Jones almost certainly did not earn.

An enterprising reporter should ask Jones to provide his time-keeping information on the Montgomery case, to prove how much time he spent on the case and what hourly rate he charged. Jones' likely response? Loud shuffling of feet.

My guess is the Jones campaign is catching heat from progressives for his deplorable treatment of Siegelman. Opposition researcher, whistle blower, and retired attorney Jill Simpson has been ripping Jones to shreds on Facebook as a two-timing, back-stabbing, opportunist, whose loyalty (if elected) would be to the right-wing Alabama Gang headed by Bob Riley. Simpson's reports are both insightful and on target, and it appears true Alabama Democrats are beginning to realize she is right -- that Doug Jones is a fraud, with a history of stabbing Siegelman, Milton McGregor, Ronnie Gilley, and others right between the shoulder blades.

From our chair, the al.com article looks like a right-wing plant job, designed to portray Doug Jones as a hero in the Siegelman case -- when, in fact, Jones played a significant role in ensuring the former governor would be convicted.

Tuesday, November 28, 2017

Tennessee's courtship of football coach Greg Schiano, botched because of his supposed ties to Penn State's Jerry Sandusky scandal, is a legal screw-up for the ages


Greg Schiano
(From Associated Press)
The University of Tennessee, in its never-ending quest to secure a football coach who can win at least nine or 10 games a year, has created one of the most gross injustices in recent memory -- at least in the employment arena.

Over the weekend, UT officials worked out a memorandum of understanding for Ohio State defensive coordinator Greg Schiano to become the Vols new head coach. Word of the agreement leaked on Sunday morning, and protesters promptly gathered on campus -- with various political and social-media types joining in from a distance.

What were they protesting? Schiano, it turns out, had worked as an assistant coach at Penn State during the time convicted child sex abuser Jerry Sandusky was on the football staff there. A court document unsealed last year suggested Schiano had witnessed Sandusky engaging in inappropriate acts with a boy in a shower at a Penn State locker-room facility. UT protesters apparently took that to mean Schiano had witnessed a heinous crime and failed to report it, meaning he did not have the bedrock principles required of a Vols' head coach.

With protesters blowing hot air down their necks, UT officials broke their agreement with Schiano -- booting him out of a job he essentially had been offered and accepted. There is a slight problem with this rush to judgment. Not one shred of evidence suggests Schiano had anything to do with the Sandusky scandal, not even as a bystander. The unsealed court document certainly provides no such evidence.

So Greg Schiano is unworthy of working at UT simply because he and Jerry Sandusky shared air space for a few years. What's next? Are all Penn State grads from that era supposed to be fired from their jobs? Does UT have faculty members or administrators who are Penn State grads? You can almost bet the answer is yes, so are they going to be fired? Will UT no longer accept Penn State grads in its graduate or professional programs?

Not only is this a moral outrage, it's a journalistic train wreck. I've seen reports that the court documents were from a trial; they weren't. I've seen reports that Schiano testified; he didn't. Here's how The Centre Daily Times, the closest daily newspaper to the Penn State community, described the unsealed court documents:

Court documents released in the summer of 2016 included a deposition from former Penn State assistant coach Mike McQueary, who indicated former Penn State assistant Tom Bradley said Schiano went to him in the early 1990s "white as a ghost and said he just saw Jerry doing something to a boy in the shower."

Two key points here:

(1) This was from a deposition, not a trial. Depositions are taken under oath, but they can be filled with statements that would not be admissible in court;

(2) This was a statement by Mike McQueary, as heard from Tom Bradley, about Greg Schiano. That sounds like hearsay to the third degree. Even under the worst of judges, such a statement would not be allowed in court.

So, there is no admissible evidence regarding Greg Schiano's actions, and nothing about Schiano and Sandusky ever has been adjudicated in a court of law. But the U of Tennessee allows campus mobs and social-media cranks to make its personnel decisions? What a show of courage.

Here are a couple of other factors the public often does not consider:

(1) Even if true, the statement regarding Schiano gives no indication he knew he had witnessed a criminal act. A coach who happened upon a disturbing scene in a shower -- as Penn State defensive coordinator, Sandusky was Schiano's direct supervisor -- is likely to think, "My God, I didn't just see Jerry doing what I thought he was doing, did I? No way, one of the most respected defensive coaches in the country could have been doing that. I mustn't have seen that right." It's highly unlikely that Schiano stood there for several minutes, assessing the shower scene. He probably averted his eyes and hustled away as soon as possible. After a taking a few deep breaths, he maybe said to himself, "That couldn't have been what it appeared to be."

(2) Reporting crimes, especially when you aren't sure what you saw, can come with high risk. I know because I was sued for "malicious prosecution" by our criminally inclined neighbor in Alabama, Mike McGarity, after he was "acquitted" on criminal trespassing charges. (That's the Mike McGarity with both a job at Blue Cross and Blue Shield of Alabama and an extensive criminal record; perhaps BC/BS spokesperson Koko Mackin can explain that soon.) I was absolutely sure about what I saw (and what my wife, Carol, saw), and McGarity even unknowingly confessed to trespassing. But Judge Ron Jackson found him not guilty -- after reading McGarity the riot act about staying off our property in the future -- so that gave McGarity the opporunity to sue, with the help of corrupt lawyer Bill Swatek. If Schiano had reported Sandusky as a child molester -- and Sandusky had been acquitted at trial, no matter how unlawful the verdict -- Schiano would have been subject to civil liability that might have cost him several million dollars.

I know from personal experience that reporting crimes is not worth it. Judges and prosecutors cannot be trusted to do their jobs, and that can leave victims or witnesses hanging. It's likely I never will report another crime. And even if Greg Schiano knew he had witnessed a criminal act -- and there is no admissible evidence that he did -- I would not blame him one bit for refusing to report it.

Who will be the big loser in all of this? Probably the U of Tennessee. From 2001-2011, Schiano compiled a 67-66 record at Rutgers, a school where it has been notoriously difficult to win in the modern era. The coach before Schiano went 11-44 at Rutgers.

Schiano probably would have done an outstanding job at UT, and he is highly respected in the coaching profession. But, hey, he once breathed the same air as Jerry Sandusky, so he can't possibly deserve a fair shake. 

Before bailing out in Carol's case, Missouri public defender Patty Poe told a veritable plethora of lies, including one of the nuttiest whoppers I've ever heard


Patty Poe
Before bailing out on my wife Carol's case, public defender Patty Poe told a lie that was so gargantuan that even Missouri deputies couldn't think of it. Now that's a whopper of a lie.

Poe told us that our eviction -- which was unlawful on at least 10 grounds -- actually was fine and dandy because deputies reasonably believed they were at our duplex apartment to (get this) execute an arrest for trespassing. And we've got Poe's statement in writing.

How mind-blowing is all this? I had to read the sentence about five times before I could believe she actually was stating this. How ironic is it? Poe herself got the trespass count against Carol dismissed because there was not a single word about it in the Probable Cause (PC) Statement. In other words, even the cops who prepared the charging documents in Carol's case did not include one shred of evidence about trespass.

This is at least the third big lie that Poe told us in the weeks and months leading to her ignominious exit from Carol's case last week. And we've got many more to reveal.

The ones we've addressed so far tend to be in the category of "Stuff Lawyers Often Lie About" -- discovery, what the law actually says, etc. But this one about trespass . . . it's as if Poe traveled to the moon and found it hidden amidst the cheese on the surface.

In early August, we sent a series of emails to Poe about issues in Carol's case. She promised to read them and get back to us -- and her response came about three weeks later. It included her take on information we had provided that shows our eviction was unlawful on so many grounds they have reached double figures. (Copies of our emails, plus Poe's responses to them, are embedded at the end of this post.)

One ground was that even if Carol caused physical contact with Officer Jeremy Lynn -- and Lynn's own written statement shows he made physical contact with her, not the other way around -- Carol would have been acting lawfully under Missouri's Castle Doctrine Law.

That can't seriously be disputed, but Poe decided to try it anyway. Here is part of her response:

Castle Doctrine does not apply in Carol's case. Pursuant to RSMo 563.031 law enforcement are exempt from the protections of the castle doctrine. What matters is were the law enforcement officers reasonably believe they are executing an arrest (RSMo 563.046). In Carol's case, based on the execution for possession, the law enforcement officers thought they were reasonably executing an arrest for trespass.

That part in yellow is so nuts that I'm not sure I have enough fingers to count all of the nuttiness. It's not hard to show that Poe is crackers on this one. You can read the PC Statement and see it includes not one word about trespass. You can read written statements from four officers, and not one them states he was there for an arrest, much less an arrest for trespass.

The comminuted fracture in
Carol Shuler's left arm, courtesy of
Missouri deputies.

The idea of arresting Carol never arose until three cops surrounded her as she tried to enter the apartment (as she'd been told she could do) to retrieve our cat's litter box. A male cop in a blue shirt came up from behind her, body slammed her butt-first to the ground, and yanked on her limbs so viciously that her left arm shattered just above the elbow. A split second later, Sheriff Jim Arnott -- quickly realizing his officers had screwed up big time -- pointed at Carol and said, "She assaulted a police officer." Only then was she placed in handcuffs, arrested, and taken to jail -- to be released when X-rays at a nearby emergency room revealed a comminuted fracture in her left arm that would require trauma surgery.


Why were cops, in their own words, on the property we rented from landlord Trent Cowherd? This is what you might call the "mission statement," from Officer Debi Wade:

On September 9, 2015, we responded to 4070 S. Fort to execute a Writ of Execution and Court Order (1531-                                                           ACO4535) to remove lessee Roger Shuler from the                                                             rental.

Cops were there for an eviction, however unlawful it might have been. Wade's "mission statement" makes no mention of trespass, makes no mention of Carol, period. So how did Poe come up with the notion that officers were there to arrest Carol for trespass? If that was the case, why didn't they arrest me for trespass?

I can only assume Poe fell victim to a malady that tends to afflict those who concoct tall tales: At some point, they can't keep their lies straight -- and they wind up tossing out absurdities.

Poe did not only screw up on the trespass issue; she also botched the Castle Doctrine. We will show you how in an upcoming post.








Monday, November 27, 2017

Ashley Madison customers revealed: Spencer Desai, one of the top bankruptcy attorneys in St. Louis, appears on Missouri list for notorious Web site


Spencer P. Desai
(From carmodymacdonald.com)
One of the top-rated bankruptcy attorneys in St. Louis appears on the Missouri list of paying customers for the Ashley Madison extramarital-affairs Web site.

Spencer P. Desai, who has achieved "Super Lawyer" status, is a principal at the Carmody MacDonald firm. Before that, Desai was a named and co-founding partner with Desai Eggman and Mason. That firm closed last December, with a number of its key attorneys joining the Carmody firm.

Desai is among 12 Carmody attorneys included in August on the "Best Lawyers in America" listing for 2017. He is recognized in the banking and finance law category.

This is from Desai's bio at the Carmody MacDonald Web site:

Spencer P. Desai has more than 25 years of experience in bankruptcy law. He has focused his practice on bankruptcy, business reorganization, business loan workouts, debtor/creditor rights, Chapter 7 and 11 bankruptcy, and commercial litigation. His representation of corporate and individual borrowers includes bankruptcy proceedings, workouts, defense of fraud and collection actions and asset protection planning. Mr. Desai has advocated for banks and lenders on a wide array of issues, including loan enforcement, workouts, lender liability defense, prosecution of fraud actions, and stay relief and other matters in the United States Bankruptcy Courts. He has also represented a broad diversity of other constituencies including Chapter 7 trustees, creditors’ committees, lessors, and business acquirers.
Spencer Desai home in Chesterfield, MO
(From realtor.com)
Public records show that Desai is married to Jennifer E. Desai, and they live at 17902 Bonhomme Ridge Ct. in Chesterfield, MO.

The most recent purchase price for their house (in 2016) was $1.175 million. It has 6,270 square feet, with five bedrooms, four baths, and a 1.1-acre lot. Zillow lists the home's current market value at $1.257 million. Here is how Zillow describes the propert:

Grand brick and stone manse located in prestigious Greystone. 1.5 story on private lushly landscaped corner lot with in-ground pool. Enjoy Schierholz quality and design: dramatic tall ceilings, 4 extra large bedrooms on second floor plus main floor master suite, paneled office, extensive millwork with trayed and vaulted ceilings throughout, wood floors, French doors and so much more. Gourmet kitchen and breakfast room surrounded by tall arched windows - including Viking range, Sub-Zero refrigerator, granite countertops, cozy window seat and an adjoining two-story hearth room with impressive fireplace. Elegant dining and living rooms with floor to ceiling windows and limestone fireplace. High pour finished walk out lower level for family fun with cherry bar, cedar and wine closets, billiard area, mirrored fitness room and full bath. Low maintenance deck and private pool patio complete the resort-style feel of this elegant and family-friendly home. Experience the luxury you deserve!

We sought comment from Spencer Desai for this post, but he has not responded to our queries.

Previously:

Article with links to 1-40 in Ashley Madison series

(41) David Armistead, director of enterprise sales, TekLinks, Birmingham (10/19/17)

(42) William House, VP and controller, HealthSouth, Birmingham (10/26/17)

(43) Olin B. Barnes III, VP, One Resource Group, Birmingham (11/1/17)

(44) T.J. Bunn Jr., ST Bunn Construction, Tuscaloosa (11/2/17)

(45) Todd Deffenbaugh, VP and controller, Express Oil Change, Birmingham (11/6/17)

(46) Richard D. Crites, lawyer and reserve deputy, Springfield, MO (11/13/17)

(47) Mark C. Trudeau, CEO, Mallinckrodt Pharmaceuticals, St. Louis, MO (11/15/17)

(48) Peter Blasi, lawyer, Evans Blasi, St. Louis, MO (11/16/17)

(49) Todd Wiesehan, director of resource management, Christian Co., MO (11/22/17)

My wife, Carol, is being prosecuted in Missouri under an "assault" statute that has been repealed; it has been off the books for 10 months, but she still faces charges


Carol Tovich Shuler
My wife, Carol, is being prosecuted in Missouri under a law that has been repealed. She faces up to one year in jail and a $1,000 fine for allegedly violating a law that no longer exists. No joke.

How can this happen? Well, here is the kicker with RSMo 565.083 ("Assault of a law enforcement officer, third degree.") The Missouri General Assembly voted to repeal the statute, and quite a few others in the criminal code, in May 2014. Gov. Jay Nixon did not sign the bill in question, but it became law, with repeal becoming effective on Jan. 1, 2017. Carol was not arrested until Jan. 30 of this year -- after repeal had taken effect -- but charges were filed on Sept. 16, 2016. Under Missouri's "savings statute" (RSMo 1.160),  Carol's prosecution can proceed because charges were brought before repeal became effective.

Does that mean her prosecution is technically lawful? Yes. Is it ethical? Reasonable people can argue about that? Is it constitutional? There is a good chance the answer is no. (More on that in a moment.)

The repeal of the law governing Carol's case was part of a massive bill -- eight years in the making -- that revised Missouri's criminal code for the first time since 1979. From a 2014 St. Louis Post-Dispatch article on the revision:

Attorneys, judges, legislators and advocacy groups worked eight years to develop the measure. The legislation streamlines existing criminal statutes, creates new classes of felonies and misdemeanors and boosts sentences for drunken drivers who kill someone.

It also has been touted as tough on crimes against children by increasing the number of felony child molestation charges and adding incest as an aggravating factor in child sex abuse cases. It also eliminates the possibility of jail time for first-time offenders convicted of possessing 10 grams or less of marijuana.

The Post-Dispatch followed up with another article late last year, as the revisions were about to take effect:

At one point, both sides of the courtroom — lawyers who prosecute crime and lawyers who defend alleged offenders — pored through the state’s crime laws word by word, line by line.

The result of that is a lot of cleanup and consolidation, such as condensing Missouri’s 25 assault statutes, said Sen. Bob Dixon, R-Springfield, who co-sponsored the package.

Eight sections of Missouri's old assault law were transferred, meaning they were consolidated into other statutes. But the statute governing Carol's case was not transferred; it was dumped, repealed -- and it has been off the books for more than 10 months now.

Does it seem fair that Carol is now being prosecuted under a law that is kaput? If your answer is no, I am in hearty agreement. Here is the technicality, from the Missouri savings statute, that allows Greene County prosecutors to get away it:

No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except that all such proceedings shall be conducted according to existing procedural laws.

Here is the key question regarding Carol's situation: When does a prosecution commence under Missouri law? Here is the answer, from RSMo 556.036:

A prosecution is commenced for a misdemeanor or infraction when the information is filed . . .

That means the prosecution in Carol's case is lawful because the information was filed in September 2016, before repeal became effective. Is it ethical? Well, given that the alleged "victim" (Officer Jeremy Lynn) admits in a written statement that he "caused contact" with Carol (and that is the central element in the offense) -- and deputies had no lawful grounds to even be on our rented property, much less breaking into our duplex apartment -- the prosecution is unethical in a myriad of ways. But since it is technically lawful, that takes us to perhaps the biggest question of all -- is the prosecution constitutional?

Well, that might depend on why the statute was repealed. Obviously, legal types from across the spectrum thought something was wrong with the statute. Have cops been bringing such "assault" charges in an abusive and inconsistent fashion? You probably can count on that being the case. Was the statute, as written, unconstitutionally vague?  That already has been argued in a case styled State v. Jones, 892 SW 2d 737 (Mo: Court of Appeals, 1994). From the Jones opinion:

In arguing that section 565.083.1(5) is unconstitutionally vague, Jones offers the hypothetical situation of a citizen who pats a police officer on the back or who taps a police officer on the shoulder, and the hypothetical situation of a handcuffed prisoner who is stumbling down the courthouse steps and grabs a law enforcement officer in order to avoid falling. Jones argues that such conduct might be a violation of the terms of section 565.083.1(5), and therefore the statute fails to give adequate notice of the type of conduct which it proscribes. Jones also contends that such uncertainty makes the statute susceptible to arbitrary and discriminatory enforcement.

In my view, Jones made a compelling argument, but the appellate court ruled against him, finding:

However, a person to whom a statute may constitutionally be applied will not be heard to challenge the facial validity of that statute on the ground that it may conceivably be applied unconstitutionally to others, in situations not before the court. Broadrick v. Oklahoma, 413 U.S. 601, 610-611, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973); State v. Worthington, 582 S.W.2d 286, 289 (Mo.App.1979). A defendant may not espouse the cause of differently situated persons as a defense in a prosecution where the statute clearly applies to him.

It now is 23 years later, and conditions have changed. Missouri legislators have repealed Sec. 565.083 for everyone in the state, and it likely is because a cross-section of legal professionals found the statute was flawed, maybe even unconstitutional.

The repeal was part of a massive, eight-year revision, so we have not been able to find the grounds under which Sec. 565.083 was dumped. But if it was sidelined, in part, over constitutional concerns,  that could add to the growing number of grounds upon which the charge against Carol must be dismissed.

Wednesday, November 22, 2017

Both Judge Margaret Palmietto and public defender Patty Poe show an utter lack of class and grace, as Poe rushes out the door to withdraw from Carol's case


Patricia Poe
A Missouri judge this morning approved public defender Patty Poe's motion to withdraw from Carol's "assault case." The good news is that we won't have to deal anymore with Poe -- and her tendency to blow smoke up our rear ends. The bad news is . . . well, I'm not sure there is any bad news. Carol will have to find a private attorney or represent herself, but either option is preferable to being represented by a public defender who would have to improve significantly to be worthless.

Poe was in such a hurry to get away that she scrambled out of the courtroom before Carol's hearing even was finished. Perhaps she wanted to make sure she had no conversation with Carol or me. If so, her quick exit probably was a good idea. I doubt Poe wanted to hear what I think of her, and I really don't think she's worth putting forth the effort to tell her she's a louse -- a louse who lies, a lot.

In a little more than five months of "representing" Carol, Patty Poe accomplished one thing: She got the trespass charge against Carol dismissed. But Carol already had filed a pro se motion that would have accomplished the same thing if Judge Margaret Holden Palmietto had bothered to read it. In the end, Poe wasted five months of our time, on a case that, by law, should have been dismissed back in May or June.

Speaking of Palmietto, the whole public defender fiasco largely was her fault. At a hearing in May, Palmietto essentially forced Carol to fill out an application with the public defender's office, saying Carol would not be allowed to leave the courtroom until the application was finished.

On that day, Palmietto made it clear she knew about Carol's pro se motions -- I think five had been filed, three of them within a few days of that hearing date. In fact, Palmietto said she was not going to read Carol's motions until she had an attorney or waived her right to an attorney. Well, Carol had an attorney for more than five months, and Palmietto still has not heard, or ruled on, any of her motions -- most of which would have kicked out the prosecution's case, as a matter of law.

That Palmietto said she would hear Carol's motions, and then didn't, raises questions about her integrity -- at least with me. In terms of basic courtesy, Palmietto could have said something this morning like, "Mrs. Shuler, I'm the one who sent you to the public defender, so I'm sorry this didn't work out and it has wasted a lot of your time." Better yet, Palmietto could have directed a glare at Poe and said, "Ms. Poe, I sent Mrs. Shuler to you, with the expectation that your office would fulfill it's duty to provide a competent defense. So why are you seeking to withdraw now? What's the problem?"

Palmietto said nothing of the sort. I couldn't tell that she questioned Poe about anything. Poe, on the surface, is withdrawing because Prosecutor Nicholas Jain filed a Notice of Jail Waiver of Jail Time, and Missouri law states as follows (RSMo 600.042. 4(2)):

4. The director and defenders shall provide legal services to an eligible person:

(2) Who is detained or charged with a misdemeanor which will probably result in confinement in the county jail upon conviction, including appeals from a conviction in such a case, unless the prosecuting or circuit attorney has waived a jail sentence;

That seems like a nifty way for a prosecutor and a public defender to conspire to deprive an eligible person of her right to counsel. I'm not sure how that is constitutional, but it probably stands because no one has thought to challenge it. (Poe's Motion to Withdraw and Jain's Notice of Jail Waiver are embedded at the end of this post.)

The dubious nature of that Missouri statute is one reason it's disturbing that Palmietto seemed to approve Poe's motion with a wave of the hand -- without asking a few hard questions. We're only talking about the right to counsel here.

Speaking of the prosecutor, Jain was not present this morning, and we hear he is planning to run for prosecuting attorney in some Missouri county. Hopefully, it's one where the citizens are smart enough to pick someone -- anyone -- other than Jain. I've met billy goats who have more legal talent and integrity than this guy. When I heard of his plans, I could not suppress a guffaw. Not sure I've encountered anyone who has a more inflated assessment of his own abilities than Nicholas Jain.

I'm holding out some hope still for Palmietto -- she has made two or three rulings that actually were correct, under the law -- but she receives a failing grade from me today. This clearly is a case of Poe and Jain colluding to leave Carol without legal representation, and a judge should have enough curiosity to want to get to the bottom of it. The real reason for Poe's withdrawal, in my estimation, is that Carol was not buying her shuck and jive routine. Carol knew Poe repeatedly had made false statements regarding relevant law in the case, and Carol made it clear she wasn't buying Poe's BS. That likely made Poe uncomfortable -- and it might have made her boss uncomfortable, too -- so they bailed out.

In fairness to Palmietto, this was your standard "cattle call" court day, with little time to consider the niceties of any case. But at the very least, Palmietto should have asked Carol, "Mrs. Shuler, why is Ms. Poe withdrawing from this case -- in your view -- and how do you feel about that?" Carol's answer likely would have shined considerable light on the sorry representation she's received.

Given that Poe is a lawyer, this comes as no surprise, but her exit this morning was utterly without class. Carol and Poe were sitting shoulder to shoulder before the judge, and Carol said Poe didn't speak a word to her -- and I didn't notice Poe even glance at Carol. In fact, Carol was speaking to the judge when Poe turned and rushed out of the courtroom. I'm not sure Palmietto had even officially granted her motion yet. Unprofessional? To the max.

Poe has said multiple times that she is convinced Carol is not guilty -- "You don't look like the kind of person who would assault a police officer" -- and admitted the cops' story that Carol broke her own arm by flailing about in the back seat of a patrol car was pure rubbish. You'd think as a small sign of human decency, Poe might have said something like, "Good luck, Carol; I know you're going to have a good outcome with this case, and I'm sorry you've been put through this."

But that apparently is too much to expect of Patty Poe. Instead, she rushed out of the courtroom before the hearing was over, without a word to her "client" -- showing not the slightest concern about issues of justice. Why not give Carol a word of encouragement, especially when Poe knows Carol is innocent, probably one of the few truly innocent people to come through that courtroom -- and Poe knows cops abused Carol to the point that they practically ripped her left arm apart at the elbow?

From my seat, it appeared Poe was too busy covering her own ample ass to worry about Carol. I'm not sure Poe is even 30 years old, but she's already proven to be a heartless, graceless sellout for the legal tribe. She deserves to have her bar card stripped, and I wouldn't mind helping to make that happen.

What a worthless piece of excrement, and my feelings about her exit from Carol's case can be summed up in two words -- good riddance.

If Carol can find a private attorney we can afford, and is worthy of our trust, that would be great. But if Carol has to represent herself, I have no doubt she would do a better job than Patty Poe and Her Traveling Clown Show.








Ashley Madison customers revealed: Todd Wiesehan, key administrator and planner for Missouri's fastest-growing county, appears at cheaters' Web site


Todd and Paula Wiesehan
(From facebook.com)
The director of resource management for Missouri's fastest growing county appears on the list of paying customers for the Ashley Madison extramarital-affairs Web site.

Todd Wiesehan was promoted in June 2017 to director of the Christian County Resource Management Department. Before that, he served for six years as the Christian County Planning Department Administrator. On his LinkedIn page, here is how Wiesehan describes that job:

I am a Planner and serve as the Planning and Zoning Department Administrator for the unincorporated portion of Christian County Missouri. My mission is to lead my department with an eye toward guided and organized development which is in line with the vision set forth in our comprehensive plan. I supervise a staff of five and work closely with our County Commission as well as our appointed Planning and Zoning Commission and Board of Adjustment. I also serve as the County's representative on numerous local and regional planning organizations.

That is a challenging task because Christian County is to southwest Missouri what Shelby County is to north central Alabama. It is filled with bedroom communities, such as Ozark and Nixa, which are burgeoning with each census period. From the Christian County Assessor's Web page:

The county had a population of 54,285 in 2000 census. According to the 2010 census, the county's population is 77,422 (a 42.6 percentage increase from 2000 census), making it the fastest growing county in Missouri and one of the fastest growing in the nation as the county becomes more suburban as growth continues in Springfield. Its county seat is Ozark. The county was organized in 1859 and is named after William Christian, a Kentucky soldier of the American Revolutionary War.

Christian County is part of the Springfield Metropolitan Statistical Area.

According to Wiesehan's Facebook page, he is studying homeland security at Missouri State University. He is married to Paula Wiesehan, who works as a nurse practitioner at Burrell Behavioral Health. According to her Facebook page, she studied psychiatric mental-health nursing at the University of Kansas.

Based on their Facebook pages, the couple has one child, a daughter who is into softball. The Wiesehans live at 3433 E. Blueridge St. in Springfield, MO, in a house with an appraised value of $228,800.

When asked for comment, Todd Wiesehan replied as follows:

I understand that you are going to publish whatever you deem appropriate for your story. For my part, all I can say is that, between the end of my first marriage and prior to meeting my current wife, I explored several typical dating websites, and out of curiosity (and perhaps hurt/anger), looked into this one. I’m sure this sounds naive, but as a recent victim of infidelity myself at that moment in my life, it was worth a few bucks just to see if what this site was advertising could even be real and that so many people were doing what was done to me. I never met or communicated with anyone as a result of giving the site my information and creating a profile. I basically concluded that it was mainly a creepy scam and moved on, somewhat encouraged that I could trust again.

I have never cheated on my past or present spouse or with another married person during that period when I was single – and I never will. Again, I do understand the intent of your series of articles and I do regret the mistake of ever clicking on that popup ad. Beyond that, I have no guilt or apology to make to my wife or anyone else in relation to that website.


Previously:

Article with links to 1-40 in Ashley Madison series

(41) David Armistead, director of enterprise sales, TekLinks, Birmingham (10/19/17)

(42) William House, VP and controller, HealthSouth, Birmingham (10/26/17)

(43) Olin B. Barnes III, VP, One Resource Group, Birmingham (11/1/17)

(44) T.J. Bunn Jr., ST Bunn Construction, Tuscaloosa (11/2/17)

(45) Todd Deffenbaugh, VP and controller, Express Oil Change, Birmingham (11/6/17)

(46) Richard D. Crites, lawyer and reserve deputy, Springfield, MO (11/13/17)

(47) Mark C. Trudeau, CEO, Mallinckrodt Pharmaceuticals, St. Louis, MO (11/15/17)

(48) Peter Blasi, lawyer, Evans Blasi, St. Louis, MO (11/16/17)

Tuesday, November 21, 2017

Missouri public defender Patty Poe likely will bail on Carol's case tomorrow, but her exit comes only after she's blown plumes of smoke about relevant law


Patty Poe
(From facebook.com)
Before seeking to withdraw from my wife, Carol's, "assault" case in Missouri, public defender Patty Poe had been blowing smoke up our fannies for months about relevant law in the matter. Poe's Motion for Leave to Withdraw and prosecutor Nicholas Jain's Notice of Jail Waiver will be heard on Wednesday (11/22) at the Greene County Courthouse.

We assume Judge Margaret Holden Palmietto will approve both documents, and we look forward to seeing Poe in the rear-view mirror. It might not, however, be the last she hears from us. The string of lies she told us should be subject to review by the Missouri State Bar, assuming this state has some requirement that lawyers deal with their own clients honestly. Also, more than one reader with experience in the "justice system" has noted that Poe could be called as a witness -- or be deposed -- in any criminal or civil proceeding that is down the road.

Carol and I certainly would like to see Poe forced to answer certain questions under oath. A big question: Who encouraged her to blow copious amounts of smoke up our fannies, and why did she do it? Did she ever take a course on legal ethics at the University of Missouri School of Law -- or did she sleep through that one, as my brother (David Shuler) apparently did 20-some years earlier?

Let's examine two of Poe's biggest whoppers -- and these involve basic matters in Carol's case. If you ever find your own lawyer lying to your face about such fundamental issues, you should know it's time to look for a new lawyer. Here are two key issues: (1) Was the eviction carried out lawfully? (2) Did prosecutors turn over discovery, as required? We'll zoom in for a closer look:

(1) Did deputies have lawful grounds to even be on our rented property?

We have written sporadically about various issues that made the eviction itself unlawful. Just yesterday, we wrote about four more grounds that made the eviction unlawful -- bringing the total to 10. We submitted that it might have been the most screwed up eviction in history; it literally was screwed up 10 ways to Sunday -- and it's possible we haven't caught all the screw-ups yet; I wouldn't be surprised to see the list grow to 12-13 before it's over. (The 10 grounds by which the eviction was unlawful are embedded at the end of this post.)

The "10 Grounds" document includes 19 links to law or evidence that shows deputies had no lawful grounds to be on our rented property -- much less inside our home -- and landlord Trent Cowherd and his lawyer (Craig Lowther) had no grounds to seek our eviction. (We have one piece of evidence that has not been scanned, and when it's in a digital format, will create a 20th link.)

Why do these grounds matter? That question perhaps is best answered by turning to Mapp v. Ohio, one of the seminal U.S. Supreme Court cases from the second half of the 20th Century. Here is the introduction to Mapp:

Appellant [Mapp] stands convicted of knowingly having had in her possession and under her control certain lewd and lascivious books, pictures, and photographs in violation of . . . of Ohio's Revised Code.As officially stated in the syllabus to its opinion, the Supreme Court of Ohio found that her conviction was valid though "based primarily upon the introduction in evidence of lewd and lascivious books and pictures unlawfully seized during an unlawful search of defendant's home . . . ."

As noted by the highlighted words above, Mapp was about material that police "unlawfully" seized during an "unlawful" search. Hence, the importance of our "10 grounds" document embedded below, outlining 10 ways our eviction was unlawful.

At the time of Mapp, the legal doctrine that excluded evidence obtained via an unlawful search or seizure, violative of the Fourth Amendment, applied only to federal cases. The Mapp ruling extended the so-called "exclusionary rule" to state cases and threw out the unlawfully obtained evidence against Mapp.

That means any evidence obtained against Carol, such as the Probable Cause Statement where an unnamed individual advised that Carol had pushed Officer Jeremy Lynn  (although Lynn's own words show he caused physical contact with her), must be excluded by law, as a violation of the Fourth Amendment. That leaves the prosecution with no case.


(2) What about discovery?

No progress has been made on this issue, and Poe made it clear (before seeking to withdraw) that she had no intention of trying to make progress.

The issue should not be controversial. At a hearing on Sept. 20, the sides agreed the prosecution would turn over the following:

(a) Various forms of media related to our eviction, including CAD logs and recordings (computer aided dispatch), 911 calls, dash camera recordings, and photos;

(b) Copies of all communications between or among sheriff's office personnel regarding the Sept. 9, 2015, eviction;

(c) Notes for reports from deputy Scott Harrison regarding Carol's injuries, which included a shattered left arm requiring trauma surgery;

(d) Statements of any officer present at the scene for the eviction;

(e) Citizen complaints or allegations of excessive violence against any officers on the scene from the past five years.


Item No. e was ordered produced by the court. Prosecutor Nicholas Jain had agreed that he would produce items a-d. In an e-mail, Poe asked for a copy of the Greene County Sheriff's Office (GCSO) Policies and Procedures Manual, and Jain indicated he would produce that only via a court order -- although one has not been filed. This is the same manual that had been available online to anyone in the world with an Internet connection, but it disappeared not long after it became clear cops had broken Carol's arm.

We scheduled a meeting with Poe on Oct. 30, mainly to learn about any progress on discovery -- and to press her on numerous dubious statements she had made about relevant law in Carol's case.

As for discovery, we learned zero progress had been made. Poe informed us that the prosecution claimed it did not have copies of any citizen complaints made against officers involved in our eviction -- and the prosecution apparently also claimed it had no relevant media and no communications (emails, texts, etc.)  When asked what she intended to do to make sure the discovery was produced, Poe said she would do nothing. "I can't prove that they don't have it," she said.

Let that sink in for a moment: The GCSO has a special page on its Web site for citizens to file complaints, but we are to believe none have been filed against the 6-8 officers present for our eviction? We're supposed to believe there were no CAD logs, dash-cam recordings or any other form of media -- not to mention no communications between or among officers, in any format (digital or analog)? Perhaps Poe noticed the looks on our faces that probably seemed to say, "You expect us to believe this heaping helping of cow feces?"

So what discovery do we have? We have photos that Deputy Harrison took of Carol's injuries, and a copy of a 911 call, which I supposedly made, but we now know came from an employee at Burrell Behavioral Health. And we've had those two items for months, even before Poe filed a Motion to Compel, if my memory is correct.

Poe also mentioned photos that cops had taken of the back seat of the patrol car where Carol was placed after they had broken her arm. We assume this includes a photo of the safety harness that restrained Carol's movement (not to mention her handcuffs) and would have made it impossible for her to break her own arm by flailing around in the back seat, as officers had suggested. But that's it for discovery -- photos of Carol's injuries, the 911 call from Burrell, photos of a patrol car's back seat.

Under Patty Poe's "I can't prove they don't have it" standard, no one ever would turn over discovery. I don't pretend to be an expert on all the steps a lawyer can take in response to such stonewalling, but I'm pretty sure they include seeking a court order or subpoena, asking to have the stonewaller held in contempt of court, asking to have the charges dismissed for failure to obey court orders and discovery rules.

These are just two of many examples where Poe has blown plumes of smoke up our fannies. It's a wonder the local fire marshal hasn't responded to our residence.

You can see why we will be glad to see Poe in the rear-view mirror, although she might have cause to deal with us in the future -- and it might come with her bar card, or even her freedom, on the line.


(To be continued)






Monday, November 20, 2017

We've discovered four more grounds upon which our eviction was unlawful, bringing the total to 10 and making it perhaps the most screwed up eviction ever


(From haikudeck.com)
Has an eviction in U.S. history ever been as screwed up (and unlawful) as the one in Missouri that ended with cops shattering my wife's left arm -- and with bogus criminal charges filed against HER? I'm not sure it's possible for an eviction to match the level of incompetence and corruption present in our case.

That's because we recently discovered four more grounds upon which our September 2015 eviction was unlawful. Add those to the six unlawful grounds of which we already were aware (see here, here, and here), and that makes 10 ways to Sunday that our eviction was contrary to law. And that doesn't even count that Carol was brutalized during the eviction, and bogus charges were brought against her after it was over. (A list of the 10 grounds upon which our eviction was unlawful is embedded at the end of this post.)

Why does this matter? Because all of these unlawful grounds mean we were subjected to an unreasonable search and seizure, violating the Fourth Amendment to the U.S. Constitution. And, under a U.S. Supreme Court case styled Mapp v. Ohio, 367 U.S. 643 (1961), evidence gathered via an unconstitutional search and seizure must be suppressed. There isn't much evidence in Carol's case -- only the Probable Cause Statement concocted by Deputy Debi Wade -- but the Fourth Amendment violations mean the PC statement must be excluded. That leaves the prosecution with . . . nothing -- no evidence, no case, nada, zero, zilch.

How gross is all of this? We're talking about grounds upon which landlord Trent Cowherd and his lawyer (Craig Lowther) could not, by law, bring an eviction -- meaning deputies from the Greene County Sheriff's Office (GCSO) had no right to even be on our rented property, much less to break into our home and wreak havoc -- leading to almost all of our personal property being stolen by Cowherd's eviction crew (based on the word of a neighbor, who was an eyewitness). On hand to witness the whole thing was Sheriff Jim Arnott himself, standing there like "a slab of meet with mittens."

BTW, when I say "bogus charges," those aren't just the words of an angry husband who happens to be fond of the defendant -- enough to have been married to her for 28 years. Even the so-called "victim" in the "assault of a law enforcement officer"charge -- Officer Jeremy Lynn -- admits he "caused physical contact" with Carol, not the other way around. That's the fundamental element of the offense in Missouri, and Lynn's own words show that Carol, as a matter of Missouri law, is not guilty of the charge.

What about the four new grounds we've discovered regarding the unlawful eviction, making it even more unlawful than we already knew? Let's take a look at them:


(1) Where was the demand for rent?

Under RSMo 535.020, a landlord must make a demand for rent before seeking to "dispossess" a tenant via eviction:

Whenever any rent has become due and payable, and payment has been demanded by the landlord or the landlord's agent from the lessee or person occupying the premises, and payment thereof has not been made, the landlord or agent may file a statement, verified by affidavit, with any associate circuit judge in the county in which the property is situated, setting forth the terms on which such property was rented, and the amount of rent actually due to such landlord; that the rent has been demanded from the tenant, lessee or person occupying the premises, and that payment has not been made, and substantially describing the property rented or leased.

Did Cowherd demand rent from us? Nope, and that's because our rent was paid through July 2015. A Notice to Vacate, dated July 2, 2015, was attached to our door -- and it makes no mention of late rent or a demand for rent. Cowherd simply tells us to be out by the end of the month (July 31). It is lawful in Missouri for a landlord to tell a tenant to vacate -- but at least one month's notice must be given, and it wasn't in our case. Also, such a notice is not grounds for a rent-and-possession case, which is what Cowherd filed. To file a rent-and-possession case in Missouri, you must want the tenant to leave because rent is late. But Cowherd's own Notice to Vacate shows our rent wasn't late, and that wasn't the reason the landlord sought to dispossess us.


(2) Was the judgment, which granted possession to Cowherd, even final?

Under RSMo 81.05, a judgment does not become final until 30 days after its entry. How do we determine that? It's spelled out at this post:

a. Supreme Court Rule 74.01 states that "a judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated "judgment" or "decree" is filed." The docket for our eviction case, Cowherd v. Shuler (Case No. 1531-AC04535) can be found at case.net, and it shows judgment was entered on August 31, 2015.

b. Supreme Court Rule 44.01 states that the first day of "an act, event, or default" is not to be included in computation of time, but the final day of the period is included." If you add 30 days to the date our judgment was entered (August 31, 2015), that means our judgment was not final until Oct. 1, 2015.

c. RSMo 534.350 states no execution may be levied until after the time for appeal has expired, which is 10 days. If you add 10 days to Oct. 1, that means our eviction could not be executed until Oct. 10, 2015.

So why did Cowherd and Lowther schedule our eviction for Sept. 9 -- 31 days too early, by law -- and why did the GCSO carry it out, contrary to Missouri law? The answer to that question is not clear, but the FAQ Web page for Anderson and Associates, a Kansas City law firm that represents landlords in both Missouri and Kansas makes it clear our eviction was butchered:

Any judgment, other than a default judgment, becomes final after 30 days. After a judgment becomes final, the writ of restitution can be issued to the Deputy Sheriff.

Even a landlord with ants in his pants must wait 30 days, until the judgment is final, to move forward with execution. That did not happen in our case -- not even close.


(3)  Did Cowherd give proper notice to vacate?

The Notice to Vacate attached to our door is dated July 2, telling us to exit the premises by July 31. That's odd when you consider that RSMo. 441.060 states that a tenancy can be terminated only by giving one month's notice, in writing. If you count from July 2 to July 31, you get 29 days -- and that is not one month.

To make matters even more glaring, item No. 15 in our rental agreement states "the 30-day notice must be given on the 1st of the month, to be vacated by the last day of the same month." Someone from Cowherd even underlined that in blue, as if to highlight its importance. So, why couldn't the landlord himself follow the rule that he made and highlighted?

How does failure to give 30 days notice on the first of the month affect a landlord? Our friends from Anderson and Associates spell it out:

To terminate a month-to-month tenancy, you must provide the tenant(s) with one month’s notice, calculated from a rent paying date. For example, if rent is due on the 1st day of each month, the Landlord must give notice on July 1st to terminate on July 31st. The Law Offices of Anderson and Associates will file your eviction on August 1st. If the Landlord gives notice on July 5th, he cannot terminate until August 31st.

By failing to give timely notice on July 1, Cowherd (by law) had to wait to give it another shot on August 1. He did not do that.


(4) What about the county seal?

A blank Missouri form for "Execution in Landlord's Action for Possession . . . " contains the following language in red:

Note: The seal of the Greene County Circuit Court MUST be affixed for this Execution to be valid.
Why is that language there? Probably to prevent landlords and/or lawyers from moving on their own to evict tenants without court approval. In other words, the language probably is there to keep landlords like Cowherd and lawyers like Lowther from doing exactly what they did in our case.

No such document that we received included the Greene County seal, indicating we were kicked to the curb via an extrajudicial and unlawful action.

Again, why does all of this matter? Let's turn to Mapp v. Ohio, which might be one of the 25 most important U.S. Supreme Court decisions of the past 60 years. The appellant (Mapp) was convicted in state court of "having under her control certain lewd and lascivious books, pictures, and photographs," contrary to Ohio law. How did police become aware of this material? Well, the process wasn't pretty -- and it certainly was not constitutional. Here are the key facts in Mapp, and they sound a lot like our experience in Greene County, MO:

On May 23, 1957, three Cleveland police officers arrived at appellant's residence in that city pursuant to information that "a person [was] hiding out in the home, who was wanted for questioning in connection with a recent bombing, and that there was a large amount of policy paraphernalia being hidden in the home." Miss Mapp and her daughter by a former marriage lived on the top floor of the two-family dwelling. Upon their arrival at that house, the officers knocked on the door and demanded entrance, but appellant, after telephoning her attorney, refused to admit them without a search warrant. They advised their headquarters of the situation and undertook a surveillance of the house.

The officers again sought entrance some three hours later when four or more additional officers arrived on the scene. When Miss Mapp did not come to the door immediately, at least one of the several doors to the house was forcibly opened . . .  and the policemen gained admittance. Meanwhile Miss Mapp's attorney arrived, but the officers, having secured their own entry, and continuing in their defianc√© of the law, would permit him neither to see Miss Mapp nor to enter the house. It appears that Miss Mapp was halfway down the stairs from the upper floor to the front door when the officers, in this highhanded manner, broke into the hall. She demanded to see the search warrant. A paper, claimed to be a warrant, was held up by one of the officers. She grabbed the "warrant" and placed it in her bosom. A struggle ensued in which the officers recovered the piece of paper and as a result of which they handcuffed appellant because she had been "belligerent" in resisting their official rescue of the "warrant" from her person.

What happened next? From the Mapp opinion:

Running roughshod over appellant, a policeman "grabbed" her, "twisted [her] hand," and she "yelled [and] pleaded with him" because "it was hurting." Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet and some suitcases. They also looked into a photo album and through personal papers belonging to the appellant. The search spread to the rest of the second floor including the child's bedroom, the living room, the kitchen and a dinette. The basement of the building and a trunk found therein were also searched. The obscene materials for possession of which she was ultimately convicted were discovered in the course of that widespread search.

At the trial, no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for. At best, "There is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant's home" . . . . The Ohio Supreme Court believed a "reasonable argument" could be made that the conviction should be reversed "because the methods' employed to obtain the [evidence] . . . were such as to 'offend "a sense of justice,"'" but the court found determinative the fact that the evidence had not been taken "from defendant's person by the use of brutal or offensive physical force against defendant." . . .

Did the U.S. Supreme Court let stand the fallout from such brown-shirt policing? Absolutely not. It found that evidence produced in an unreasonable search and seizure -- in a prosecution in a State court, for a State crime -- must not be admitted. The high court found that constitutional protections that had only applied in federal court now applied in state-court actions. From a concurring opinion by Justice Douglas:

We held in Wolf v. Colorado, 338 U. S. 25, that the Fourth Amendment was applicable to the States by reason of the Due Process Clause of the Fourteenth Amendment. But a majority held that the exclusionary rule of the Weeks case was not required of the States, that they could apply such sanctions as they chose. That position had the necessary votes to carry the day. But, with all respect, it was not the voice of reason or principle.

As stated in the Weeks case, if evidence seized in violation of the Fourth Amendment can be used against an accused, "his right to be secure against such searches and seizures is of no value, and . . . might as well be stricken from the Constitution." 232 U.S. at 393.

When we allowed States to give constitutional sanction to the "shabby business" of unlawful entry into a home . . . , we did indeed rob the Fourth Amendment of much meaningful force. . . .

Without judicial action making the exclusionary rule applicable to the States, Wolf v. Colorado, in practical effect, reduced the guarantee against unreasonable searches and seizures to "a dead letter" . . .


Thursday, November 16, 2017

Ashley Madison customers revealed: Attorney Peter S. Blasi, with active practices in Missouri and Illinois, appears at notorious extramarital-affairs Web site


Peter S. Blasi and family
(From facebook.com)
A named partner at a St. Louis law firm that focuses on workers' compensation, personal injury, negligence, and products liability appears on the Missouri list of paying customers at the Ashley Madison extramarital-affairs Web site.

Peter S. Blasi heads the workers' comp and employment section at the Evans Blasi law firm. Blasi is licensed to practice in Missouri and Illinois, and he serves as an arbitrator for uninsured/underinsured motorist cases throughout Illinois and Missouri. Blasi has been named a "Super Lawyer" in Illinois, an honor that is based on peer recognition and professional achievement. From Blasi's bio at the Evans Blasi Web site:

Peter S. Blasi, heads the firm’s workers’ compensation and employment practice group. In addition, Peter maintains a diverse civil litigation practice handling both plaintiff and defendant personal injury, workers' compensation, employment and title insurance litigation claims. Peter has successfully represented hundreds of clients for over decade before the Illinois Workers’ Compensation Commission, Missouri Division of Workers Compensation and the Illinois Department of Human Rights. Mr. Blasi has taken hundreds of cases to trial, hearing and or appeal including cases addressing first impression issues involving independent contractor/employee issues and joint contribution amongst employers. Peter has secured millions of dollars in benefits for his employee clients over the years as well as save his employer clients from paying out large awards on questionable claims.

Blasi is married to Tami Blasi, and her Facebook page indicates the couple has four children. The Blasis live at 9137 Park Haven Ln, Saint Louis, MO. Their house, according to Zillow, has an estimated market value of $452.052.

We sought comment from Peter Blasi for this post, but he has not responded to our queries.


Previously:

Article with links to 1-40 in Ashley Madison series

(41) David Armistead, director of enterprise sales, TekLinks, Birmingham (10/19/17)

(42) William House, VP and controller, HealthSouth, Birmingham (10/26/17)

(43) Olin B. Barnes III, VP, One Resource Group, Birmingham (11/1/17)

(44) T.J. Bunn Jr., ST Bunn Construction, Tuscaloosa (11/2/17)

(45) Todd Deffenbaugh, VP and controller, Express Oil Change, Birmingham (11/6/17)

(46) Richard D. Crites, lawyer and reserve deputy, Springfield, MO (11/13/17)

(47) Mark C. Trudeau, CEO, Mallinckrodt Pharmaceuticals, St. Louis, MO (11/15/17)