Wednesday, November 1, 2017

Missouri deputies fail to mention Carol's broken arm in Probable Cause Statement, and that omission means criminal charges against her should be dismissed

X-ray of the comminuted fracture in
Carol Shuler's left arm
We've been reporting here for more than two years that my wife, Carol, had to be taken to the hospital with a broken arm after an encounter with Greene County, Missouri, deputies during an unlawful eviction in September 2015. But that minor detail had not been revealed in court until a recent motion hearing (Sept. 20) in the criminal case where Carol is charged with a misdemeanor count of "assault of a law enforcement officer, third degree."

Public Defender Patty Poe referenced Carol's injuries in a Motion to Compel Discovery, on which the prosecution has been stonewalling. Poe also noted, in oral argument before Judge Margaret Holden Palmietto, that Carol's broken arm required hospitalization and surgery. As part of her discovery request, Poe asks for notes or reports "from Deputy Scott Harrison regarding Ms. Shuler's injuries" (Item 7b.) On the evening of our eviction (Sept. 9, 2015), Harrison accompanied Carol to the emergency room at Cox North Medical Center, where X-rays of her left arm revealed a comminuted fracture, which is a break into three or more pieces.

That means the Greene County Sheriff's Office (GCSO) knew about Carol's injuries -- because Harrison was present when her broken arm was diagnosed, and he took photographs of her arm. Deputies have hinted in incident reports that Carol must have broken her own arm by flailing about in the back seat of a patrol car. That, however, is nonsense, for two reasons: (1) Carol was handcuffed and seat-belted in the patrol car and could not have flailed about, even if she had wanted to -- and having just been brutalized by cops, I doubt she wanted to; (2) A comminuted fracture usually is the result of trauma, such as a vehicle accident, and is not consistent with any kind of alleged flailing in a tight space.

All of this raises a troubling question about the GCSO's actions: If deputies knew about Carol's injuries, why did they fail to mention them in the Probable Cause (PC) Statement that was the basis for Carol's arrest? Under Missouri law, such an omission presents grounds to have the charges dismissed. In fact, Carol has filed a "Motion to Dismiss Based on Defective Probable Cause Statement and Gross Omission of Facts . . . " She filed it on May 30, while still acting pro so, but we've seen no signs that Judge Palmietto has considered it -- or any of Carol's other pro se motions, which should have caused the charges to be tossed at least in June, maybe earlier. (The PC Statement, Motion to Compel, and Motion to Dismiss Based on Defective Probable Cause Statement . . . are embedded at the end of this post.)

Missouri courts have held that a PC statement can be defective both when law enforcement officers include false information or omit favorable information against the defendant. From a case styled State v. Turner, 471 S.W. 3d 405 (Mo. App., E.D., 2015), which references Franks v. Delaware, 438 U.S. 154 (1978), a U.S. Supreme Court case:

While Franks dealt with express misrepresentation in warrant-application affidavits, the same analysis has been applied to material omissions of fact.

Such omissions were the focus of a Missouri case styled State v. Weide, 812 S.W. 2d 866 (Mo. App. W.D., 1991). From Weide:

No Missouri case is found applying Franks to a situation involving alleged material omissions from an affidavit in support of a search warrant. However, the Eighth Circuit has addressed this question.

In United States v. Reivich, 793 F.2d 957 (8th Cir.1986), the court held that affidavits in support of a search warrant are subject to challenge on the basis of alleged deliberate material omissions. The challenge must show that (1) the police omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading; and (2) that the affidavit, if supplemented by the omitted information, would not have been sufficient to support a finding of probable cause.

We find the position of the Eighth Circuit persuasive on the issue of alleged deliberate material omissions from an affidavit . . .

We already have addressed expressed misrepresentations in the PC Statement, and they are spelled out in No. 12 of Carol's Motion to Dismiss Because of Defective Probable Cause Statement . . . . What about material omissions? That is spelled out in No. 13:

13. As for omissions, the list is lengthy. Here is a brief summary of key omissions: 
(a) The eviction was unlawfully scheduled during a 10-day window when execution could not take place; 
(b) The Shulers timely filed a Notice of Appeal and paid fees, putting a stay on execution, which landlord Trent Cowherd and Sheriff Jim Arnott ignored; 
(c) By law, eviction proceedings in Missouri cannot begin until rent is at least one month late. The Shulers’ rent was late by five days when eviction proceedings began; 
(d) Under Missouri Castle Doctrine Law, Carol Shuler “reasonably believed” deputies were unlawfully forcing their way into her home and she had the right to use force, even deadly force, to protect her home. Shuler did not use such force, but she is being charged for a “crime,” based on alleged conduct that is legal, even encouraged, under Missouri law. 
(e) The judgment in the underlying eviction case is listed in the docket as interlocutory, with the Shulers’ counterclaim and other issues, set for hearing on Oct. 1, 2015. That means the Shulers’ appeal was premature, and the window for filing an appeal could not begin until a final judgment was issued after Oct. 1. The lack of lawful grounds for an eviction was even more blatant than the Shulers originally believed. (For more details, see Shuler’s Amended Motion to Dismiss Charges Under Missouri’s Castle Doctrine Law, filed May 30, 2017.

You will notice that list does not even include the fact deputies omitted information about Carol's injuries. All five of the listed omissions present grounds for dismissal of the case. But the most powerful ground probably involves omission of the "inconvenient truth" that cops brutalized Carol to the point that she was left with a shattered left arm. Carol likely will be filing a separate Motion to Dismiss on that omission alone.

Let's return to State v. Weide and its analysis of material omissions:

The challenge must show that (1) the police omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading; and (2) that the affidavit, if supplemented by the omitted information, would not have been sufficient to support a finding of probable cause.

Now, we'll apply that analysis to the reality of Carol's left arm, shattered by the cops who failed to mention it in their Probable Cause Statement:

(1) Did the cops omit information about Carol's injuries with the intent to make the affidavit misleading? Well, we've established above that the GCSO knew about Carol's injuries on the night of  our eviction, and yet they did not mention them in the PC Statement. It's hard to imagine how intent to make the affidavit misleading could be more clear.

(2) If the affidavit had been supplemented with the omitted information, would it have supported a finding of probable cause? With the omitted information included, it turns the case on its head -- instead of a perpetrator of an assault, Carol becomes the victim of an assault -- and probable cause appears to go out the window.

That's a legal analysis, but we also can do a "common sense" analysis. Why did deputies fail to mention Carol's broken arm in their PC Statement? Common sense tells us they knew it would hurt their case -- probably ruin it -- so they left it out. And knowing they face serious civil liability toward Carol (and me), they were determined to bring a criminal case against Carol, as a "cover charge" to discourage a civil action.

Under Missouri law, that omission should cause dismissal of the case against Carol -- not to mention the other five omissions noted above.


Anonymous said...

I know this is a serious matter, but it almost makes me laugh to think of cops going before a real judge. "You want to know about Mrs. Shuler's broken arm, Your Honor. Oh, that's right, we did break her arm. Darned, we forgot about that, just slipped our minds."

legalschnauzer said...

@8:41 --

It slipped their minds, of course, because it was obvious Carol broke her own arm by flailing about in the backseat of a patrol car -- while seat-belted and handcuffed.

Anonymous said...

Every time I look at that X-ray, I want to throw up.

Anonymous said...

Classic case of police dishonesty. Lying is a part of their culture.

Anonymous said...

I find it hard to believe that cops have an obligation to put info about your wife's broken arm in their probable cause statement. If she pushed an officer, how is her arm relevant?

legalschnauzer said...

@9:34 --

First, I would suggest you read the cases cited in the post. There are links that go right to them.

Second, the issue isn't whether Carol pushed the officer. The issue, by law, is: Who caused physical contact with whom? And the cop ("victim") admits he caused contact with Carol by grabbing her. He also admits that she didn't push him.

Anonymous said...

It seems like there might be some minor deficiencies with the police paperwork in this case. Greene County Missouri is just a piece down the road from well known centers of educational excellence such Arkansas and Oklahoma after all. Also you probably are aware that Western Tennessee and Mississippi Hill Country (and all their centers of educational excellence) are just one more Sonic Footlong Chili Cheese Coney with Butterfinger Sonic Blast further down the road from Springfield.

However, it's always a large leap to go from sloppy and incomplete (remember- law enforcement can legally make sure NOT to hire smart people) to the supposition that paperwork oversights might be an intentional attempt to tilt the playing field against a defendant. Are we really supposed to think law enforcement could be that smart and/or venal?

Here is one way to analyze a situation like this: Do you think that the probable cause statement would have mentioned the injuries suffered if it had been a police officer injured in the same way your wife apparently was? Whether not not the injuries were alleged to have been caused by a defendant like your wife in this hypothetical situation?

Curious to know what you think about this hypothetical.

legalschnauzer said...

@9:45 --

Thanks for a thoughtful and hysterical comment. It's unusual to find both qualities in one comment. I'd never thought of the question you pose: Would the probable cause statement have mentioned the injuries if it had been a police officer who wound up with a shattered left arm? That's a downright brilliant question, and my answer is "Absolute - damned - tively." Do you agree?

BTW, I like your style. Anyone who mentions a Sonic Footlong Chili Cheese Coney, plus a Butterfinger Sonic Blast, is a pretty cool dude in my book. You speak my language!

Anonymous said...

I can't imagine law enforcement (officers, the officers' supervisors, the prosecution) leaving any injuries to a police officer at an arrest scene out of a probable cause statement.

That's why the omission of the serious injury suffered by your wife (which required hospitalization and orthopedic surgical repair) from the probable cause statement are significant and possibly inculpatory.

Could be an interesting line of questioning to be asked at some point.

legalschnauzer said...

@10:32 --

Agreed. And thanks again for raising this question. I had never thought of it from that standpoint, but I think you make a profound point.

Anonymous said...

Time to fire Poe and force those Motions to be filed upon. This case should have been dismissed long ago, as a matter of law!

Anonymous said...

Is omitting the injury from an official report a form of perjury?

legalschnauzer said...

@12:30 --

Yes, it should have been dismissed months ago. Just this week, Poe said she would not be pursuing a motion to dismiss -- even though the judge said she would hear Carol's pro se motions once she had an attorney -- and Poe's grounds for her position are simply false. They do not square with Missouri law on the subject. And that is just one of 8-10 false assertions Poe has made regarding the relevant law. So, once again, we are in the hands of a compromised lawyer, who has no problem lying to our faces.

The big question: Why is Poe now clearly compromised? Is someone pulling her strings? Is she angling for another gig, trying to get out of the hopelessly underfunded Missouri PD office? We are going to be watching and taking action, when appropriate.

legalschnauzer said...

@1:31 --

Excellent question. I don't think an omission of fact would constitute perjury, but it is grounds for dismissing the charges. It probably would take a false statement to constitute perjury, and Carol's pro Motion to Dismiss, which is embedded above, lists false statements at item No. 12. Those probably are perjury, but it would be difficult to get a prosecutor to bring such an action.

The PC Statement says false statements are "punishable by law," which I assume means perjury. We are going to look into filing a false statements/perjury charge against Debi Wade.

Anonymous said...

From what you say, Poe must have been compromised. There's no valid reason for her not to use your research and arguments to get this dismissed asba matter of law. The system is rigged!!! Time to fight!!!

Anonymous said...

legalschnauzer said...

@3:11 --

Thanks for sharing. I think the nurse's lawyers let the thugs off easy. Interesting to note that the nurse was not injured, although she clearly was abused. Carol almost had her arm ripped off at the elbow.