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)


Anonymous said...

That Carol has faced criminal charges for almost a year, where there is no accuser, is an outrage against our democracy. It shows we are living in an era of sham justice.

legalschnauzer said...

@12:46 --

Well stated, and the charges have been pending for more than year, dating to 9/16. Carol did not know about them until late Jan. 2017, but they've existed for about 16 months. For all that time, there has been no named accuser -- zip.

Anonymous said...

I've seen Patty Poe's behavior in other people, and it's always infuriating. She could have said, "I don't know," and that might have been a truthful answer regarding the Sixth Amendment. As a lawyer, she should have been able to say, "I don't know, but I will look it up for you." I don't think any of us expect a lawyer to have everything at her finger tips. But we don't expect to be lied to, either.

legalschnauzer said...

@12:54 --

Agreed. "I don't know," if truthful, is always an acceptable answer -- and as you note, in the realm of the law, the attorney should have the skills and the desire to look it up. In this instance, Carol looked it up, so Poe should have been able to do the same.

In Poe's case, I think Poe represented Carol honestly for maybe a couple of months, but then things changed -- and she either did know the correct law or didn't want to look it up because it likely would produce an answer her controllers didn't want to hear.

legalschnauzer said...

A critical point to show how serious Poe's violation of trust was.

We trusted in her as long as we could, but it became clear (at some point) that she absolutely would not file any pre-trial motions. And that involved issues that have to be brought via pre-trial motion or you waive them -- both at trial and on appeal.

In other words, Poe was setting her own client up to be a loser -- with no grounds for appeal, and waiving critical defenses at trial -- and this was while jail time still was on the table. Poe was willing to see Carol go to jail for up to a year -- for an offense Poe knew Carol had not committed. Those are lies with serious consequences, and I hope the public understands that.

That's why I view Poe's actions so harshly. I think they were despicable, unforgivable.

Anonymous said...

Why didn't Debi Wade just lie and say she witnessed the "push." She lied about other stuff in that affidavit, so why not add one more lie?

Steve said...

“And we can find no case law that indicates Carol, at a bare minimum, has a right pre-trial to know the identity of her accuser.” Should that be “No right...” ?

legalschnauzer said...

Good point, Steve. Carol's case is filled with rights that she has under the U.S. Constitution, but have been denied to her. All shows that the southern half of Missouri -- below Kansas City, Columbia, and St. Louis -- is as right-wing as Alabama. In fact, it's so unfriendly to constitutional principles that you might as well call it Alabamistan.

Two biggies in Carol's case are the Fourth Amendment right to be free from unlawful search and seizure and the Sixth Amendment right to confront your accuser. Neither seems to exist in SW Missouri.

To borrow your phrase, Patty Poe, in essence, was trying to make sure Carol had "no right" to know the identity of her accuser. Shows how vile the U.S. system has become. People who supposedly are trained in the law -- the ones upon whom we depend to guide us -- will lie right to your face, with jail time on the table.

Anonymous said...

I don't see this case going away on it's own and finding a new attorney to take it seems unlikely. When is Carol going to just represent herself and demand the motions she filed be heard. Then either the case is dismissed or she can move to the next phase to prepare for trial. That's way better than just sitting around complaining about the past.

legalschnauzer said...

Carol very well may represent herself. She certainly would do a better job of it than Patty Poe did. Not sure what you mean by "complaining about the past." Is all journalism, and all history, "complaining about the past"? BTW, I'm the one who wrote the post, not Carol, so I guess I'm "complaining about the past"? That tells me you know my reporting is on target, so you want to dismiss it with the weak "complaining about the past" business. Shallow thinking, to say the least.

I suspect you would take it seriously if your constitutional rights were violated this way. But it's no big deal when it happens to someone else. Typical self-centered Americanism, with no appreciation for a constitutional. You've got to be a Republican and a Trumpist.

Anonymous said...

@1:22 -- Would you follow your own advice? I doubt it. If you were arrested without an accuser, you would squeal like a "little girl."

Anonymous said...

@1:05 -- I bet I know why Debi Wade didn't lie about witnessing "the push." She probably knew multiple dash cams caught the activity on video and show that she was outside when the alleged push took place. I suspect video will show she could not have witnessed the push, so she concocted an unnamed "witness" to make that claim. I'm guessing no one witnessed the push because there was no push. But they needed that for a cover charge, so they could have an excuse for breaking Carol's arm. Cops are such bastards!

Either way, I think this points to video that captured what happened outside the apartment.

Anonymous said...

Roger: How is it that you view Poe as your public defender?

legalschnauzer said...

@3:06 --

I don't. As I've written many times, I'm not a party to this case, so Patty Poe obviously isn't my public defender. If I've written something that gives you that impression, either I made a mistake or you made a mistake in comprehending what I wrote.

Anonymous said...

Hope you will be able to file bar complaints against both Patty Poe and your brother. The Missouri State Bar probably is worthless, like the one in Alabama, but I hope you file complaints anyway. Would be nice to see them squirm.

legalschnauzer said...

Followup to Steve at 1:10 --

I didn't write that paragraph very clearly. I've made a few changes and hope it is more clear now.

legalschnauzer said...

@3:03 --

I think you are onto something. The cops probably thought they could massage Wade's other lies, but it's hard to do that with a lie where video proves Wade was lying.

That might also explain why the prosecutor didn't bring a charge on Wade's claim that Carol "barreled into her headfirst." The same dash cams likely caught that outside activity and show Wade's version of events is a sham.

Anonymous said...

After Crawford v Washington The Govt cannot use out of court statements that are offered as testimony unless the witness is unavailable and the defendant has had a previous opportunity to cross exam the witness. Me thinks that if you do not file your pre-trial motions, your witness at trial will be an affidavit signed with a Pseudonym. I also believe by reading your reader's comments that some of them underestimate your adversary.
Mad Dog

legalschnauzer said...

@6:24 --

You can rest assured Carol will file pre-trial motions. Several already have been filed, which would have forced dismissal of the case -- if Judge Palmietto had bothered to read them. Carol will file more pre-trial motions shortly.

Palmietto claims she won't take up those pre-trial motions until Carol has a lawyer or has waived her right to an attorney. I've found no law that supports Palmietto's position, and Palmietto has not cited any from the bench. There might be such law, but it troubles me that Palmietto seems to be pulling her position from thin air -- and that makes me wonder about her integrity, even though she has made a number of correct rulings in this case.

Interesting statement about our "adversary." No doubt it goes beyond the boundaries of Greene County, Missouri -- beyond the boundaries of Missouri, period.

Anonymous said...

Greene County could have produced 1000 witnesses if their objective was to prosecute Carol. Their strategy is to hamper your civil suit by getting the Judge to allow the person who broke Carol's arm to testify using a pseudonym. Me thinks that they would want you to have a attorney and the court will tell your attorney the witnesses' name ,and not you, to stay in the legal boundary.
Mad Dog

Thomas S. Bean said...

The prosecutor has already declared that he is taking jail time away from any sentence?

Sounds like he wants the usual plea bargain of guilty without putting on a case?

Prosecutors and Judges and Public Defendors will do avoid a trial and possible appeal: you have demonstrated that you plan on swimming up stream against the court's usual and expected chicanery. THAT IS A BARGAINING CHIP, for sure.

I suspect.....the prosecutor will eventually offer a plea deal: "will make it all go away" if you agree to a "disorderly" charge with no jail time.

Innocent people plea guilty all the time......because Public Defendors are part of a cronyistic jack ass group of two legged crap makers that I call "The Court House Gang" (Prosecutors, Defendors, Judges, cops). This gang only wants to avoid work, review, trials, research, arguments, practising law.

They want all the respect and power......and no challenges or fair playing fields.

legalschnauzer said...

Mr. Bean --

You should write a book on the sad realities of the American prosecutorial system. You've got it nailed. Maybe we could write it together and expand to include all the dubious characters you call "The Court House Gang."

You make lots of good points here, but one in particular jumps out at me -- these SOBs (and they aren't all guys) are flat lazy. Yes, they are corrupt, greedy, not-too-bright, but they are lazy--both physically and intellectually.

Our broken system needs to be exposed by a major book and documentary. And there needs to be a corresponding push by the DOJ to send a bunch of court crooks to prison.

Thomas S. Bean said...

"Maybe we could write it together and expand to include all the dubious characters you call "The Court House Gang."

1) I had alot of similar experiences with you and your wife (no broken bones for me though) leading to the possible suspicion that "there is a protocol" used by vigilante surveillance who must be philosophically connected to our good solid citizens (Jurors-Judges-Prosecutors-Pub Defendors-Def Attys-journalists).

2) Oddly and ironically enough...this shitstorm of chicanery (30 years) forced me to study and investigate the enemy down info pathways that shined a brief light on some of the tentacles of enraged beast (think, "20,000 leagues Under The Sea" with Kirk Douglas harpoon in hand on the deck of The Nautilas). The best personality profile for these wierdos starts with The Authoritarian Personality and leads to Psychopathology, Sociopathic traits, and Narcissistic traits: sprinkled in with "Group Dynamics" where conformity and fear of sticking out leads to outrageous recklessness/criminality under color of law.

3) It's all a very strange long trip down an unexpected trail.

4) Republicans, conservatives, ex military trash, conformists, rage filled power trippers: that's the enemy. They are all weirdo, repressed, dorky, Gov tit vultures who have always deluded themselves concerning their own self righteousness and self important role in society as "the ultimate secret weapon" against the status quo (corruption).

I'll dig up some links showing similar people to you (A Targeted Individual) to review in your spare time. Right now, you are probabely busy thinking about it all: I suspect, that's one goal (Distraction to Neutralize) to rationalize the extrajudicial tactics. PTSD is common for us: obsessive replaying of bad memories in an attempt at putting a bizarre jigsaw puzzle together.