Tuesday, November 14, 2017

"Victim's" own words do not support assault charge against Carol, so prosecutors seem to be employing "clown commenters" to engage in pretzel logic

Jeremy Lynn
As a blogger, I know I've hit a nerve when anonymous comments start flying in, filled with twisted "facts" in an apparent effort to change the tone of conversation -- and maybe my reporting. My posts on Ashley Madison have been drawing attacks from such "comment squadrons" for months, and yet no one has come close to showing my AM posts are inaccurate. More recently, posts about criminal charges brought in Missouri against my wife, Carol, have come under such attacks. (See here and here.) They tend to leave me amazed and amused at the lengths some folks will go in an effort to con Legal Schnauzer readers. Be assured the attackers -- we've come to call them "clown commenters" or "CC" for short -- will not be successful. But it's comical to watch them try.

The CCs particularly have come unglued over posts showing that Officer Jeremy Lynn, the supposed "victim" in the assault of a law enforcement officer charge against Carol, admits in a written narrative that he caused contact with Carol, not the other way around. That's important because RSMo 565.083 holds that the central issue in the charge against Carol is whether she "knowingly caused or attempted to cause physical contact with a law enforcement officer." The Probable Cause Statement claims Carol "got physical" with Lynn and "pushed him repeatedly," even thought the statement's author -- Officer Debi Wade -- admits she did not witness such an event and only was "advised" of it by an unknown individual, who remains a "ghost" to this day.

Lynn resolves the matter when he writes in an incident report about his encounter with Carol as he broke into our home for an unlawful eviction on Sept. 9, 2015. These are Lynn's own words:

There was a female, however, that had been trying to force the door closed and she was standing just behind the door and trying again to force it closed. She was very aggressive and fighting against the door. She was grabbed by her arms and restrained to stop her from harming one of us or herself. During this process she was pulling her arms away from me and tried to push me back with her arms and body. She was told to calm down repeatedly and ignored those commands. She was eventually handcuffed and taken outside.

This, especially the part in yellow, tells us all we need to know, under Missouri law. In the first two sentences, Lynn claims Carol made contact with a door -- and that apparently is based on the word of a "ghost" -- but he doesn't say she made contact with him. Then come the key words: "She was grabbed by her arms and restrained . . . " That's the first human-to-human contact described, and it involves Lynn grabbing Carol. Since he "knowingly caused contact" with Carol, she could not have caused contact with him. She could not be guilty of "assault on a law enforcement officer" -- case closed. In fact, what Lynn describes is an assault against Carol, by a thug/cop who had no lawful grounds to be on our rented property, much less breaking into our living quarters.

Clown commenters -- we suspect they are connected to the Office of Greene County Prosecuting Attorney Dan Patterson -- know Lynn's words don't look good for their side. So they have engaged in pretzel logic, twisting words in a way that produces utter nonsense. Here are the key goofy points they try to make:

(1) "Caused contact," under the Missouri statute, does not mean "initiated contact"; it has some mystical meaning that only the commenter knows -- even though he can't describe it.

(2) By Carol allegedly pushing on the door -- and no named accuser is known to have witnessed that -- it caused Lynn to restrain her. In other words, Carol forced Lynn to grab her. (I told you these folks can twist words!)

(3) Carol kicked and flailed against Lynn, words that aren't even present in the PC Statement or the Misdemeanor Information.

Why do we think these comments might come from someone in the Greene County prosecutor's office? Well, they started with an Oct. 18 post titled "What was Prosecutor Dan Patterson thinking when he brought State v. Carol Shuler, a criminal case that provides no evidence of a crime being committed." Is someone trying to protect Patterson's reputation from blow back for bringing a case that, even the "victim" admits, has no basis in fact? That's how it looks from here. Let's take a look at the first clown comment:

FYI "caused contact" does not mean "initiated contact" - even if it did, which it doesn't, Carol pushing a door against the officer led to him restraining her or attempting to. The complaint lays out that when he did this, she fought him. She pushed pulled, flailed against him, kicking, using her body to bump him, etc. IOW fighting the restraint instead of submitting or being still. He describes that contact in sufficient detail to support the charge.

If there is a defense (such as his illegal presence, etc.) for that fighting against the officer with kick and body blows, that is a different issue. If she was justified in resisting, attempting to push the officer away or to escape his grasp would not be a crime.

She did cause contact. The relevant contact in the complaint to support the charge is distinct from the contact he decided to make with her (to grab her arms IIRC)

Here is my response to this example of brilliant legal "reasoning":

Nice try, but you are wrong. Caused contact means exactly what it says. The cop grabbed Carol, not the other way around. Try actually reading the Probable Cause Statement. Debi Wade, the author of it, admits she didn't witness Carol do anything -- rather, she was "advised" by an unnamed person. You say. "He [Lynn?] describes that contact in sufficient detail to support the charge." Lynn doesn't describe it at all. Debi Wade describes it, based on the word of an unknown "adviser." That does not come close to supporting probable cause, and it violates Carol's Sixth Amendment right to confront her accuser.

In essence there is no accuser in this case. Jeremy Lynn doesn't accuse Carol of assault and neither does Debi Wade. No known person accuses Carol of anything. No named person says Carol pushed against a door, touched Jeremy Lynn, or did anything that remotely constitutes a crime. On top of that, you are just pulling a lot of stuff out of your ass. Even the "adviser" doesn't claim Carol "flailed," or "kicked," or "bumped" anyone. You must be a cop because you sure lie and make stuff up like one.

Finally, Carol is charged with assaulting an officer, not "fighting the restraint" or "failing to submit" or whatever else you can find in your anal cavity. She's not charged with "resisting" because she wasn't under arrest. You should apply at the Greene County Sheriff's Office because your utter lack of knowledge about the law matches theirs. Even if she touched a door, and no named person claims she did, she made contact with her own door, not Jeremy Lynn. If you think that qualifies as an "assault" under Missouri law, you truly are out to lunch.

The essence of the assault claim, under Missouri law, is who caused contact with whom. Jeremy Lynn admits he grabbed Carol, and you seem to admit the same thing -- that he grabbed her and tried to restrain her, even though his own words show she was trying to get away from him.

I notice that you don't cite any law to support your contentions, and that's because there isn't any.

Here are two words to describe you and your comment -- weak and pathetic (and pitiful, make that three words). If you want to try to defend your position, contact me by private email or phone, and I will be glad to discuss. Look forward to hearing from you.

Did the commenter contact me to directly to discuss these matters? Of course not. But that didn't stop him from trying to twist the discussion to fit his own agenda. Here's a follow-up comment, which was attached to the same post on Oct. 19:

Yes, trying to push an officer back by whacking him with a door can be a crime. But after gaining entry, and making the choice to restrain Carol, even if he makes "first contact" if she kicks, pushes, or throws her body weight against him in an attempt to get away, that is "causing contact." This is what is alleged to have occurred, and it is a sufficient basis to charge. Causing contact isn't limited to initiating contact, and the officer initiating contact doesn't excuse any pushing, kicking, or bumping or other fighting on Carol's part. If the officer had a good faith basis to enter the premises and restrain Carol, her fighting back in the ways described is a crime, even if the officer isn't hurt.

Here's a question that changes nothing, but which you have never fully explained. What did Carol,think she was going to accomplish by pushing, kicking, and throwing her weight against the officer attempting to restrain her? Or even fighting against the door, for that matter? She had to have understood that the officers would gain entry and that barricading or shutting the door against the officers was of no practical use. These are officers who believed they were there to carry out a court ordered eviction, and who had received information that you were potentially dangerous. What was the rational, practical benefit to be gained by her reaction? A better way to deal with the situation would have been to begin preparing to move, since it was clear the landlord wanted you to leave (and you weren't even paying rent.) You could have sued for damages after the fact if they breached your lease, you know.

The "clown commenter" quickly followed up with this:

Caused contact does not mean initiated, it means caused. You cause contact if you deliberately push someone, or put your hands on them. Every time she threw her weight against him or pushed him would be "causing contact." It's not a game of who started, it's did she deliberately make contact with the officer. You can ask her public defender.

As you can see, he's starting to repeat himself, so it was not hard for me to respond:

Back for more, I see, and still no citations to law to support anything you say. Gee, that's a surprise. A few points:

(1) You admit the officer initiated (caused) contact. Good deal. For those who know Missouri law, that means case closed.

(2) You describe Carol pushing, kicking, putting force on door etc. Please give the name of the person who witnessed this and put it in the Probable Cause Statement.

(3) You ask about why Carol "fought against the door," etc. You seem to accept that as true. Please provide the name of the person who witnessed those events and provided that information?

(4) Why do I need to ask a public defender anything? You've made no citation to law to ask about. Give me a citation to law, and I'll be glad to ask about it.

(5) Why haven't you contacted me for discussion? I made that good-faith offer, but it's been "crickets" from you. Why?

In the wake of this back and forth, we've presented case law that proves this clown has no clue on the matters at hand:

(1) There is no difference between "causing contact" and "initiating contact" 

Under Missouri law, per State v. Armstrong, 968 SW 2d 154 (Mo. Court of Appeals, 1998), these two terms mean the same thing. From the Armstrong ruling:

There was evidence indicating that the victim of the assault had arrested or was attempting to arrest Appellant when Appellant launched himself backwards into the deputy, knocking him off his feet and into a ditch. It is certainly reasonable to infer that the officer did not give his consent to being knocked down, as well as consent to other physical contact upon himself.

We do not view the State's two witnesses as being in direct contradiction, as one was not sure how the contact was initiated, but the other witness was.

The key question under Armstrong? Who initiated contact with whom? The answer in Carol's case? According to Jeremy Lynn's own words, it was him.

(2) Making contact with an inanimate object does not mean one has made contact with a living being

Our clown commenter claims that pushing on a door -- which no specific witness claims Carol did -- is the same as pushing on Jeremy Lynn. Missouri's appellate courts disagree, per a case styled JDB v. Juvenile Officer, 2 SW 3d 150 (Mo. Court of Appeals, 1999). JDB involved a juvenile who decided it would be fun to circle and then chase after the car of a woman (Ms. Hord) who lived nearby. In a roundabout chain of events, the juvenile was charged with third-degree assault. From the JDB opinion:

Ms. Hord testified that, at some time during the late afternoon or evening hours on that day, J.D.B. and two of his friends, wearing Halloween masks, surrounded her car and "gyrat[ed] their hips in a sexual manner." Ms. Hord became "upset" and left to run errands. Later that evening, at approximately 8:20, Ms. Hord again encountered the three teens while she was outside near her mailbox. When she saw them approaching, Ms. Hord got in her car and locked the doors. She testified that the boys again surrounded her car, this time holding the masks in their hands and also one of the boys "[n]ot J.D.B., [a]nother one" was carrying a plastic "machete." Ms. Hord testified the boys were again gyrating their hips and that J.D.B. was right next to her driver's side window "pumping his hips right into the car, so the car was moving."

Did the juveniles contact with Ms. Hord's car amount to an assault, even though he never touched her? The court answered in the negative:

This court has previously defined physical contact sufficient to constitute an assault as "the touching of the person of another or something so intimately associated with, or attached to his person to be regarded as a part thereof." State v. Greathouse, 789 S.W.2d 50, 52 (Mo.App., 1990).

Viewing the record in the light most favorable to the judgment, the only possible evidence of contact between Ms. Hord and J.D.B. was Ms. Hord's testimony that the juvenile was pushing against her car in such a manner that the car was moving. There is also J.D.B.'s testimony that he would apologize for scratching Ms. Hord's vehicle, which he then claimed was done not by him but by another of the juveniles. There is no evidence in the record of any contact that J.D.B. had with Ms. Hord's actual person. In order to support a conviction under this theory of assault, it must be found that the juvenile's contact with Ms. Hord's car was with something so intimately associated with or attached to her as to be considered a part of her person. The juvenile officer cites to no authority that would support such a finding, and this court can find no such Missouri authority.

As in J.D.B., there is no evidence that Carol made contact with Jeremy Lynn's actual person; in fact, he admits he initiated contact with her person. There is no admissible evidence -- other than hearsay of the highest order, from a "ghost" -- that Carol even made contact with the door. Once again, our clown commenter makes an argument that has no support under Missouri law.

(3) He who grabs first, commits the crime

Finally, we have State v. Raymond, (Mo. Court of Appeals, Eastern Dist., 2004), which involved a district attorney who became upset with two state troopers over the way they handled money seized in a pending case and wound up physically throwing one of the troopers out of his office. Before flying out the door, the trooper momentarily grabbed the DA in a headlock before deciding that was a bad idea and released him. This was a case of both parties making contact, but the trial court found the DA initiated contact and pronounced him guilty of assault of a law enforcement officer, third degree -- the same offense facing Carol. The verdict was upheld on appeal.

Even if you accept the clown commenter's assertions as true -- and they are not supported by statements from anyone on the scene that day -- Jeremy Lynn admits to causing physical contact with Carol. Even if she made incidental contact with him after being grabbed -- and there is no evidence that she did -- that does not amount to assault of a law enforcement officer, as a matter of law.

It's always interesting when someone makes a claim regarding a legal matter, but they can't make a single citation to law that supports their contention. That's the case with this clown. But we have pointed to plenty of citations that show he is wrong.

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