Monday, November 27, 2017

My wife, Carol, is being prosecuted in Missouri under an "assault" statute that has been repealed; it has been off the books for 10 months, but she still faces charges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My wife, Carol, is being prosecuted in Missouri under a law that has been repealed.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

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