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My wife, Carol, is being prosecuted in Missouri under an "assault" statute that has been repealed; it has been off the books for 10 months, but she still faces charges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My wife, Carol, is being prosecuted in Missouri under a law that has been repealed.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

35 comments:

Anonymous said...

Eliza b here
If the eviction had continued on a legal course and you won, you would not have been separated from your possessions. If the landlord had won legally, you would have sought somewhere else to live and not have been separated from your possessions. The illegal eviction was to separate you from your possessions and allow them to be searched. What were they searching for?

legalschnauzer said...

Eliza B --

Good question. You've noted in comments at a previous post the likelihood that someone knew I had copies of transcripts related to the bingo trial, and that's why we were evicted. I see no sign that they were successful in getting the transcripts because I still have them. Must say I had forgotten about them, forgotten I had them, but after your comments the other day, I found them. If the cops mission was to get those transcripts, it failed.

I think similar stuff was in play with my arrest and our unlawful foreclosure in Birmingham. What were they looking for there? Gay-porn photos of Bill Pryor? Photos of Rob Riley and Liberty Duke? Photos of Luther Strange and Jessica Garrison? All three?

I can say for sure they did not find what they were looking for there?

For those who might have missed the Eliza Battle comments over the holiday weekend (from last post of last week), I will republish them in comments below:

https://legalschnauzer.blogspot.com/2017/11/both-judge-margaret-palmietto-and.html

legalschnauzer said...

Interesting stuff from Eliza Battle over the weekend. Will start republishing key parts of comments and responses here:


Anonymous said...
Aboard the Eliza Battle Coach and the General were sleeping like driftwood while John and Thomas Yancey built a stage to showcase their Pinocchio and Howdy Doody puppets to a captive audience in the Sickbay. Upon awakening, Coach exclaimed,"General! wake up! you are the father of twins." The General upon awakening replied," The one with the long nose is surely the son of a politician but the other one looks like Roy Moore." Coach added that Ole Roy is a politician and likes firm flesh. The General replied that Nannie Dee had the firmest flesh he had ever encountered but Nannie Dee was faithful. Meanwhile in the pilothouse the Captain and Admiral Tyron were discussing Roger's eviction. The Admiral said that it was his opinion that the eviction was triggered by Roger's posts on the Bingo Trials in July 2015. The Captain responded that the eviction process began on August 5, therefore we must look for what event happened on August 5. A review of posts do not reveal a reason but a review of the Comments of the July 30 2015 posts show a clue. On Aug 5 2015 , Roger and John Caylor were commenting. Caylor wrote a comment saying that the Bingo Trial transcripts will reveal that Baker was investigating the Russian Mafia. Roger Replied with a long comment but one sentence from that comment has been removed from his blog. Admiral Tyron asked what the sentence said. The Captain replied that all of Roger's posts about the Bingo Trial transcripts were quotes from Josh Moon's copy of the transcript. The line that was removed read" I have a copy of the transcripts but have not had time to review them." The eviction of Roger was a error filled rushed attempt to acquire Roger's copy of the transcripts. The people who removed Roger's belongings were searching his possessions, looking for the transcripts. Carol was apprehended before she could get inside and view them searching their belongings.
November 24, 2017 at 6:45 PM

(cont.)

legalschnauzer said...

legalschnauzer said...
Eliza B --

Another date that might have significance re: our eviction. Our Notice to Vacate from landlord was dated July 2, 2015. Our rent had always been paid on time, and we never caused any problems, so there was no reason to have us vacate. We were due to go month to month on Aug. 1, 2015, but as you note, landlord started eviction proceedings on Aug. 5.

You could say that whole process to force us out started with the Notice to Vacate on July 2. BTW, under Missouri law and the terms of our lease, we had to be given one month's notice to vacate, and it had to be received by a payment date (first of month), which would have been July 1. We got the notice, and it was dated, one day too late. By law, the landlord had to wait until the next first of the month (Aug. 1) to give notice to vacate. But they didn't do that.

Any idea how a line from my comment was removed and why?
November 24, 2017 at 9:50 PM

legalschnauzer said...

Anonymous said...
Eliza Battle here
The July 2 date; You wrote a article about Victoryland on June 30, 2015 saying how McGregor could learn the identity of his enemies[people who shut him down]. You wrote to be continued. The plan to search your possessions was hatched but July 2 was the earliest that the notice to vacate could be time stamped. They knew they would have to wait an additional month to legally evict you, but when you told Caylor that you had the Bingo Trial transcripts on August 5 , they needed to search your possessions as soon as possible. Josh Moon lost access to the transcripts when his column was taken away from him. Now who erased the sentence from your comment. As I said before, I requested by FOIA information about the land thieves from Auburn. I waited over 3 years to receive the documents before I called and talked to you. 5 days later I received the documents. I suspected the Obama Justice Dept was monitoring your phone. In March 2016, I make a comment about the Bingo Trial transcripts and some=one posts a comment about snakes in Alabama. They had to have hacked your computer to know I was in Alabama. Recently the Eliza Battle comment containing Young Jessica and the cat in a box, suggested that Roy Moore had leaked the story to the news to get ahead of bad news. No one had commented on your blog for 24 hours but two minutes after my comment and one-half hour before before you post my comment , some-one comments "I knew you would " The only way they could have known what I wrote was to have hacked your computer.
November 25, 2017 at 5:05 AM

legalschnauzer said...

legalschnauzer said...
Eliza B --

Thanks for sharing your insights. As you note, I had just posted some bingo/McGregor-related stuff prior to July 2, too, so I guess that adds another clue. You think they still are checking up on you and what you write here?

In addition to the deleted line in my comment about having the transcripts, I also quoted directly from them in July 30 post, so it was pretty obvious I had them. Are you thinking they thought I had them in paper form, printed out or were they looking for something in digital format? Who do you think wanted the transcripts so badly and launched this eviction fiasco? Bob Riley & Co.? DOJ via Rob Riley and Doug Jones? (Jill Simpson says RR and DJ were feeding info to feds during bingo case.) What do you think they thought was in the transcripts? Something that could be damaging to them, I presume? Here is URL to post on July 28 about Keith Baker plan to share grand jury info with Bob Riley. Maybe that triggered certain events?


https://legalschnauzer.blogspot.com/2015/07/fbi-agent-keith-baker-intended-to-turn.html


(Just to clarify: I think my comments with Caylor were on July 30, and the eviction proceedings began on Aug. 5, via the filing of a rent and possession case. Here is URL to July 30 post with Caylor comments, and I don't see any Caylor stuff on Aug. 5.

(https://legalschnauzer.blogspot.com/2015/07/how-far-did-fbi-agent-keith-bakers-sex.html)
November 25, 2017 at 12:29 PM

legalschnauzer said...

Anonymous said...
Eliza Battle here
My knowledge about the Bingo Trials begins from day one. My neighbor of 30 years was the county commissioner during the attempted thief by the Tax increment district. He was promised my property as a reward. He even sent his wife to view my house because he had told people that he was going to make my house into a restaurant to cater to the people in his RV park. It took a lot of maneuvering but I got the Thief stopped. Later I was talking to my neighbor and asked how he could be so stupid to get involved with those people. He asked me how I knew Milton McGregor. I replied that your "friends" were also trying to steal my sister-in laws property . I said that her Mother is McGregor's sister. I said not only do you try to steal her property but you also try to throw her Uncle in jail to get the DOJ off your ass. The Riley Clan did not start the investigation of McGregor. His Civil Suit has gone thru discovery on the local people but the Mike Hubbard "investigation" and the ongoing special grand jury in Lee County prevents any discovery against Luther Stranges's handlers in Washington DC. As Mike's appeals wind down ,the side items like the Judge holding the Siegelman documents will become clear. I write these Bingo Trial comments and the ones about my fellow Marine Lt McDonald to leave guidance for Future historians to record the Truth.
November 25, 2017 at 1:02 PM
Anonymous said...
EB here
The Caylor comments were on the July 30 post but the comment was dated August 5 on that July 30 post.
November 25, 2017 at 1:05 PM
Anonymous said...
The Obama Justice Dept wanted those transcripts. I bet you lunch [when you get back home here in Alabama] That the Judge in Siegelman's lawsuit had the documents before Obama left office. The sentence was removed to keep readers from seeing it and connecting it to your eviction.
November 25, 2017 at 1:17 PM

legalschnauzer said...

legalschnauzer said...
EB @1:17 --

That seems to point to Eric Holder, who helped defend Karl Rove before joining Obama admin. Jill Simpson sez Doug Jones and Rob Riley were feeding stuff to Holder DOJ. Makes me think Jones and RR were involved in our eviction, which would be no surprise at all. I've long felt there was an Alabama-Missouri connection, with my brother-lawyer being the likely conduit. I'm betting my brother has had conversations with Jones, Riley, Jessica Garrison, Bill Swatek -- or some combination thereof. A "friend" named Don Schlueter probably has been part of the conduit, too.
November 25, 2017 at 3:19 PM
legalschnauzer said...
EB @1:05 --

Ah, OK, I understand now about date of Caylor comments.
November 25, 2017 at 3:20 PM
legalschnauzer said...
EB @1:02 --

Has anything been reported in the press about McGregor civil case? Who are the defendants? Is it in federal court? I know very little about it.

Would be surprised if McGregor did anything in state court, since he has to know the AL Supreme Court is is a den of thieves for the Rileys. Do you see McGregor as a good guy or bad guy in all of this? Was he part of the land thieves? I don't know what to make of McGregor at this point. I've written tons of stuff favorable toward him, because I know the courts have ruled unlawfully on VictoryLand, but I don't know what to make of him now. Can't believe he ever was stupid enough to give millions to Rob Riley for a Russian Lottery.
November 25, 2017 at 3:26 PM

legalschnauzer said...

Anonymous said...
Eliza B here
Two weeks after McGregor was indicted , I went to his attorney's office and informed his secretary[ Espy ] of the DOJ investigating the people in Auburn. Two weeks later I went and informed Ronnie Gilley's attorney {Jones} of the DOJ investigation in Auburn. Just my gut feeling but I believe Jones was helping his friend Biden by feeding information to the DOJ Officials in Washington DC.
November 25, 2017 at 3:37 PM
Anonymous said...
Eliza B here
I have met McGregor several times since the trial . He was a victim of the land thieves. I like the guy . He arrives at my nephew's wedding driving a 4 cylinder car with no security . Just him and his wife drive to a venue way out in the country. By throwing side-ways questions to him ,I believe his attorneys do not tell him everything . As for him not winning a civil suit in state court, winning is not the issue. He wants the truth exposed.
November 25, 2017 at 3:52 PM

Anonymous said...

The law is repealed?!?! What a joke. They can't even find a real law, one that is still in force, to prosecute Carol.

Anonymous said...

This makes it obvious Carol is being prosecuted under bad law. It's probably been bad for years, and the legislature finally just got around to realizing it.

This should be additional grounds for dismissal.

Anonymous said...

"Jones also contends that such uncertainty makes the statute susceptible to arbitrary and discriminatory enforcement."


You can bet this law was enforced in an arbitrary and discriminatory fashion, as it was with Carol. Notice that the appellate court makes an extremely weak finding in denying the motion in Jones case.

The court essentially says, "Yes, this statute stinks and it's probably unconstitutional, but it's not unconstitutional in this guy's case."

Anonymous said...

Did Patty Poe, the public defender, inform Carol of this change in the law?

legalschnauzer said...

Patty Poe never said a word about it. I found out about it via a helpful reader. That reader was anon, so I can't thank him or her by name, but I greatly appreciate the help.

Anonymous said...

Eliza Battle here
In 2009, I took some altered Deeds to the City Managers office in Auburn and told an assistant that they needed to get the land thieves under control. I informed him that the thieves had tried to pull this same crap on my sister-in -law and me. I told him if you do not stop them , then my sister-in -law's uncle Milton McGregor will assist us to stop them. That is why I believe the investigation of McGregor was started by the land thieves.

Anonymous said...

The assault statutes were consolidated not appealed. Under 565.054 her charge would now be a D felony because a law enforcement officer is considered a "special victim" under 565.002.

Anonymous said...

Eliza Battle here
In November 2009 after I paid my taxes for 2008, I viewed my appraisal information for the next tax year. The appraisal showed my house being used for storage. A house being used for storage only is BLIGHT. They were given fair warning. I contacted the DOJ in Washington DC and informed them of events the thieves had taken that fell under Federal Jurisdiction. Getting Campus Crest entwined was a brilliant move on their part.

Anonymous said...

You need to take a look at the visitor log.

legalschnauzer said...

@2:22 --

Are you the same fraud-tard who keeps pulling garbage out of your ass about leases?

For the record, the "assault" statute in Carol's case (along with two others) was repealed and was not transferred/consolidated. Here is link to the revisions:

https://law.justia.com/codes/missouri/2016/title-xxxviii/chapter-565/

I'll even cut and paste the info for a certain Mr. Blockhead:


Section 565.081 (Repealed L. 2014 S.B. 491 § A)
Section 565.082 (Repealed L. 2014 S.B. 491 § A)
Section 565.083 (Repealed L. 2014 S.B. 491 § A)

legalschnauzer said...

@2:58 --

The visitor log for what?

Anonymous said...

@2:22 --

I did a little digging of my own, and turns out Mr. Schnauzer is doing you a favor by calling you Mr. Blockhead. You're worse than a blockhead; you are a con man. You refer to 565.054, which reads:

565.054. 1. A person commits the offense of assault in the third degree if he or she knowingly causes physical injury to another person.

Not even the cops have claimed Carol caused physical injury. The cops, on the other hand, caused huge physical injury to Carol.

Do you basically spend your life defending wife beaters, child beaters, and other abusers? Maybe you get a kick out of seeing someone abuse a puppy or a kitten? Do you get your rocks off from doing that? You are a sick bastard.

Anonymous said...

Serious question. Have you ever considered that aliens may be involved?

legalschnauzer said...

Involved in what? Serious question.

Anonymous said...

Your incarceration. Now, the eviction.

Anonymous said...

How did the @ 10;36 comment disappear?

legalschnauzer said...

@4:20 --

Don't know. Did aliens write your comment?

legalschnauzer said...

@4:36 --

Not sure. Who wants to know?

Anonymous said...

In my view, if Ms. Poe failed to inform Carol that this statute had been repealed, that's real close to legal malpractice. If nothing else, a public defender's job is to keep up with the latest in criminal law. The repeal of this statute was part of a long, extensive, and well-publicized effort to clean up Missouri's criminal code. There is no excuse for a public defender not to know about it, and no excuse for not informing any defendant who is faced with charges based on a repealed law. And there is no excuse for not filing a motion to dismiss based on the statute being bad law -- so bad that it has been repealed.

As a member of the "legal tribe" myself, I'm not one to recklessly call for legal-malpractice claims. But it might be called for in this instance, perhaps against Poe and her director, whoever was supervising her handling of the case.

Carol should have known about this repeal long ago. That she was not so informed speaks very badly of the Public Defender's Office.

Anonymous said...

"They were given fair warning. I contacted the DOJ in Washington DC and informed them of events the thieves had taken that fell under Federal Jurisdiction. Getting Campus Crest entwined was a brilliant move on their part."

Question: Whose part on the "brilliant move" with Campus Crest--the Feds or the land thieves or both? And why do you think it was brilliant--your reports so far suggest that Rollins/CC didn't bite?

legalschnauzer said...

Memo to Mr. Blockhead:

At 2:22 yesterday you claimed the assault law had not been repealed. Now, you admit it has been repealed. Can't keep your story straight, so why do you expect anyone here to respect your opinions? Are you just arguing with yourself?

Anonymous said...

Eliza B here to @11:37
That is a Damn good Question. The land thieves probably knew nothing about Rollins. That leaves the Feds. So you thinking Holder made Rollins a hostage to control the White House. That would explain the treatment Don Siegelman received from Obama. I think it was brilliant because The Alabama Republicans had a Democratic president Assist them in gaining control of State Government.

Anonymous said...

EB@8:18pm -- All of the Eliza Battle reportage stated that Rollins/Campus Crest didn't bite when the land thieves attempted to suck the company in, so, unless I'm missing something, I don't see Rollins/Biden/Obama as hostages.

Anonymous said...

Eliza Battle to !0:22 You are correct that they did not bite. The Eliza Battle has said that they were tricked. They only needed Campus Crest at the location. Let me explain. When the county commissioners determine your property is blight, you have 10 days to prove fraud. I caught the error in the deed of my father-in-law . At one of the commission meetings , a man who lost his property due to a error in the mapping department spent 20,000 dollars getting his property back. The estate attorney said the court house made the mistake and he would get it corrected but it would take time. There were multiple errors on My property. First, 14 dollar timber tax because there was not any buildings on property. Next ,Yes there were buildings but they were barns. Next, yes it was a house but it was being used for storage. I take my altered neighbor's deed to the mapping dept and ask the mapper to show me what property was sold. He reads the deed , pushes his chair back and says" You can't prove what we are doing. Go hire yourself an attorney and still can't prove what we are doing." Weeks later I get a phone call from the wife of a former employee "reading" a plea from the heart for money to feed her children. But she wanted me to bring a specific amount to a location of her choosing. The phone she called on was in chambers county. I make a phone call and learn her husband is in jail for drug charges. It takes the FBI to monitor a phone call. These Son of a Bitches do not use greed to try and entrap me but a woman pleading for help to feed her children. They just needed me to be at a specific location. That is why the Eliza Battle Tales made sure to note that Campus Crest did not bite.

Anonymous said...

10:22 here. Thanks, EB! I've been following the Eliza Battle story from the beginning and remember the part with the "wife and kids" incident. While it takes the FBI to monitor a phone call legally, there certainly are ways to monitor illegally, and the SOBs--if Mr. Mapper is representative--seem to be folks who aren't concerned with trivialities like entrapment, legality and justice. If you don't mind saying--knowing full well that Roger's blog is being monitored--what do you think the SOBs (land thieves and DOJ lackies) endgame is?

Anonymous said...

Eliza Battle to @ 12:20
Since there is a wind coming from the northeast that has the trees leaning, I can only observe the ones already down. Civil Suits are probably the greatest danger. Hubbard has 4 choices 1. Gamble that he can prove Matt Hart is corrupt using the Henderson trial.
2. Clear his name by exposing the Bingo Trial corruption but that will result in Don Siegelman getting his documents and suing the Riley Machine. 3 Accept a large sum of money and go to prison but he will want his money up front and the Riley Machine would have to trust him.
4. Go to prison and trust the Riley Machine to pay him later. If Roger does have the Bingo Trial transcripts, then that will expose the corruption anyway. I feel like Option #2 is the best choice. If you keep up with Alabama news, You would have read that the current Alabama Attorney General is trying to shut McGregor down which would limit damages. Steve Flowers and Bill Britt are reporting that Canary will be put on a bus back to New York. These events point to Mike accepting option 2. I held a round table discussion with the Ghost of the Eliza Battle and they feel that after a little wheeling, dealing and feeling { The General} by the litigants---- The ghosts want to stay with the prediction made by the Eliza Battle on the March 2, 2016 post at 11:05.