Thursday, January 18, 2018

Lies my Missouri public defender told me: With Carol's freedom at stake in bogus "assault" case, Patty Poe cooked up some double whoppers with cheese (Part 4)

Patty Poe
How can one stand accused of a crime without an accuser? It can't happen, under the law, but it has been happening for months in the case against my wife, Carol, in Missouri.

And that is just one of many issues on which Missouri public defender Patty Poe has attempted to blow smoke up our fannies. In fact, we have come up with this question: How many different ways can a public defender lie to her own client? If you are talking about Patty Poe, of Greene County, Missouri, the answer is "a lot."

Poe represented Carol, for about six months in an "assault of a law enforcement officer case" (1631-CR07731 - ST V CAROL T SHULER at before bailing out in late November after prosecutor Nicholas Jain filed a notice that he was waiving jail time. For the first month or two Poe was on the case, she conned us into believing she actually had integrity and was representing Carol's best interests. But then came a string of lies about case and procedural law in the matter, telling us Poe likely was working for someone else's best interests all along.

In a series of emails to Poe dated Aug. 9, Carol showed that the prosecution had violated her rights under the Confrontation Clause to the Sixth Amendment. (See Email No. 3 embedded with Carol's other emails at the end of this post.) Poe, as we came to realize was her usual style, responded with a crock of garbage. (All of Poe's responses are embedded at the end of this post.) Here is Poe's short, not so sweet, and downright deceitful answer:

The Confrontation Clause only applies at trial. It does not apply as to a probable cause statement. The probable cause statement is sufficient to proceed on the charge, even if untrue. If we proceed to trial though. Capt. Jeremy Lynn will have to testify or someone else who witnessed the "assault." It can't be Debi Wade.

Is Poe's contention about the Confrontation Clause supported by any citation to law. Nope. That's probably because there is no law to support it. To be sure, the U.S. Supreme Court has left some murkiness in the Confrontation Clause picture. Here is how a 2010 Illinois Law Review article described it:

The Supreme Court has never indicated that a defendant has no right to confrontation prior to trial, but it is not clear that the Confrontation Clause applies in full force to pretrial hearings either.

As you can see, that statement hardly is a model of clarity. But two things seem clear: (1) Nothing precludes a defendant's right for confrontation prior to trial; (2) And case law indicates Carol, at a minimum, has a right (pre-trial) to know the identity of her accuser. As it stands, the charges against her are based on the word of an unnamed "ghost," which probably makes them what we call "sub-hearsay.

What is the Confrontation Clause. It's an extremely important component of American criminal law, so important that it is a bedrock of the Sixth Amendment. Here's how we described it in an earlier post:

What about Carol's Sixth Amendment right to "confront her accusers in a criminal case," which is known as the Confrontation Clause. In essence, it holds that if someone accuses you of a crime, you have a right to know who that person is -- and you have a right to confront that person via cross-examination at trial. Historically, the Confrontation Clause has been considered fairly important in the U.S. justice system; it prevents an anonymous individual from accusing someone of a crime and then hiding from the consequences of making an accusation that might be false.

But that is exactly what is happening in Carol's case -- and it suggests that word of the Confrontation Clause, proposed to Congress in 1789, has not reached outposts such as Springfield, Missouri.

For Carol, the Confrontation Cause is critical because there is no accuser in her case. Debi Wade, author of the Probable Cause (PC) Statement, claims Carol pushed Officer Jeremy Lynn as he burst through the front door of our duplex apartment for an unlawful eviction on Sept. 9, 2015. But Wade admits she did not witness the event, that someone "advised" her that it happened. It now has been more than 10 months since Carol's arrest and this "adviser" still does not have a name.

Poe claims it doesn't matter because the Confrontation Clause only applies at trial, not for pre-trial matters. But she could not be more wrong. Who says so? The U.S. Supreme Court. From our earlier post:

Typically, the right to confront your accuser involves cross-examination at trial, and Carol's case has not reached that point. But Crawford v. Washington, 541 U.S. 36 (2004), one of the best-known Sixth Amendment cases in modern history, makes it clear the Confrontation Clause goes beyond trial proceedings. From Crawford:

The text of the Confrontation Clause reflects this focus. It applies to "witnesses" against the accused — in other words, those who "bear testimony. . . . " An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.

Various formulations of this core class of "testimonial" statements exist: "ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, . . . statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, . . . " Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath was not dispositive.

We learn that at least three types of pre-trial statements are covered by the Sixth Amendment's Confrontation Clause:

(1) An out-of-court statement that "bears testimony," such as the one made by Debi Wade's "adviser";

(2) A pretrial statement that would reasonably be expected to be used prosecutorially, at a "later trial."  This includes an affidavit, such as Debi Wade's PC Statement, which included the statement made by Debi Wade's unknown "adviser;"

(3) Testimonial statements taken by police officers in the course of interrogations, even if they are not taken under oath -- such as the one made by Debi Wade's "adviser."

Missouri case law borrows from Crawford to drive home the importance of the Sixth Amendment and its Confrontation Clause. Clearly, Carol has a right to know the identity of her accuser and to confront him in pre-trial activities, such as depositions, interrogatories, and requests for production of documents:

The term "at a later trial" indicates the Confrontation Clause applies to pre-trial activities, including the filing of an affidavit, such as a PC Statement. For good measure, a Missouri case styled State v. Stewart (MO Ct. of App., 2009), borrows from Crawford to drive home the same point. From Stewart:

Finally, while "[t]he Sixth Amendment's Confrontation Clause provides that, '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him,'" Crawford v. Washington, 541 U.S. 36, 42 (2004), that safeguard applies only if the out-of-court statement was "testimonial" in nature. The Court in Crawford did not give a "comprehensive definition of 'testimonial'" but stated that "it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations."

The statement made to Debi Wade was part of a police interrogation, and under the Sixth Amendment, Carol is entitled to know who made the statement and to confront him both at trial and pre-trial. And yet, the person's identity has been kept from her for almost a year. Here is a summary from our earlier post:

Bottom line: The Sixth Amendment's Confrontation Clause ensures that you cannot be accused of a crime by a "ghost." Your accuser must be identified, even in pre-trial documents, and that has not happened in Carol's case. It means she never should have been arrested (twice), incarcerated (twice), or subjected to any criminal proceedings.

Patty Poe's lies have covered a wide range of legal subjects, from her fantasy that cops were on our premises to conduct a trespass arrest, to Missouri's Castle Doctrine Law, to critical constitutional issues (with guidance from Poe's mysterious "friend"), such as the Fourth Amendment right to be free from unlawful searchers -- now to Carol's Sixth Amendment right to confront her accuser.

But we are not finished. There is more about Patty Poe's tendency to obfuscate -- putting her own client at great risk.

(To be continued)

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