Wednesday, December 20, 2017

Public defender Patty Poe put "the cart before the horse," focusing on a defense for Carol before challenging weaknesses in the government's evidence

Patty Poe, on law-school graduation day
Missouri public defender Patty Poe is not stupid. After all, she made a special point of telling Carol and me that she had gone to law school for three years, paid $300 to take the bar exam, and passed it. Despite that, Poe tried her best to act dumb in the final weeks and months she represented Carol, before bailing out on the case without so much as a "good luck."

Here is an example. Carol sent written information to Poe, complete with proper citations, addressing this central question in her case: Was the eviction at our rented duplex in September 2015 legal or illegal? If it was illegal, and Carol presented to Poe 10 grounds that it was, it was an unlawful seizure under the Fourth Amendment, and any evidence gathered must be suppressed -- leaving the state with no case. This is all spelled out in a seminal 1961 U.S. Supreme Court case called Mapp. v. Ohio.

Mapp might be one of the 10 most important high-court cases of our lifetimes. On paper, it protects citizens from being the victims of a police state. If you are reading this post right now, Mapp protects you from being the target of an unlawful search and seizure -- in your home, your vehicle, your vehicle, anywhere. It makes sure you can't be incarcerated, based on evidence that was unlawfully gathered. If you ponder that for a moment -- and its possible ramifications in your own life -- you can see this is an issue of profound importance. In many ways, it separates our country from those run by despots and dictators.

You would think Poe might take such an issue seriously. But her response, as Mapp applied to Carol's case, was to shrug her shoulders. In so many words, said it didn't matter if the eviction was lawful or not because that was not a defense. She repeated that refrain over and over, to the point that we started to wonder, "Who are you working for, Carol or the prosecution?" Here are Poe's exact words on the subject, from a Nov. 2 email:

Whether or not the eviction was unlawful is not a defense. . . . As we discussed on Monday, I may discuss the eviction proceedings at trial to help the judge understand Carol's state of mind at the time, or why she would be mistaken in believing that the person at her door wasn't a police officer because she thought the eviction was stayed.

If you notice the two highlighted sections above, they both deal with Carol's defense. But in making this statement, Poe ignores a legal principle that any first-year law student should know. Heck, anyone who has watched Matlock for a few episodes should know this: In any criminal case, the burden of proof is on the government.

An online article tiled "The Four Phases of a Criminal Trial" makes that clear: At every phase in the process -- opening arguments, witness testimony, closing arguments -- the prosecution goes first. If the prosecution fails to make a prima facie (on its face) case, the defense can move for a Judgment as a Matter of Law. If the judge grants the motion, the case is over, and the defense doesn't have to defend anything. A defense only comes into play if the government sufficiently presents an "on its face" case.

If the defense is convinced the prosecution has not made its case, it can rest -- without calling any witnesses, including the defendant. This happens in many criminal cases, with varying degrees of success. I'm not a fan of this strategy, but many criminal-defense lawyers abide by it. If the government hasn't made its case -- the theory goes -- present little or no defense. That will keep the proceeding short and sweet -- which jurors are likely to appreciate -- and you won't have to deal with extraneous issues that might come up on cross-examination.

Preparing a defense is important, of course. But the first order of business is to see if you can attack the government's case -- and this often must be done via pre-trial motions. Poe, however consistently resisted the idea of filing any pre-trial motions. She also resisted the idea of pushing the state to produce key documents via discovery.

This would have had two negative impacts for Carol: (1) It would have forced her to trial, in a case that cannot go to trial, by law; (2) It likely would have waived key issues, meaning they could not be raised on appeal; (3) It meant Carol would have had little or no evidence with which to attack the government's case.

This suggests Patty Poe is not just incompetent or compromised; it points to her being downright evil -- that she was willing to cheat Carol at both the trial and appellate levels. And she was willing to let Carol go to trial without gathering evidence with which to fight back. Patty Poe is the equivalent of someone who would stand on the shore and watch a child drown in two feet of water rather than do anything that might cause her to get wet.

The first order of business for Patty Poe should have been to look for ways to attack the government's case. And one of the first questions in any criminal matter is this: Was the prosecution's evidence lawfully gathered, within the boundaries of the Fourth Amendment right to be free from unreasonable and unlawful seizures? If not, it must be suppressed under Mapp, and the prosecution likely will be badly damaged or fully gutted.

That Patty Poe would let any client go to trial without filing pre-trial motions on any number of issues -- especially regarding the gathering of evidence -- raises questions about whether she is fit to have a bar card. That she would allow the state to get away with discovery abuses -- and Carol still has almost zero discovery, even material the court has ordered produced -- suggests to me that Poe is a hideously rotten human being.

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