Tuesday, January 9, 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 3)

If you have done your legal homework and presented it to your lawyer to support a key claim or defense in your case, be on alert if you get a response like these: "IN MY OPINION, your research is not on point" or "I DON'T AGREE with all of your contentions." Responses like these -- especially if they are not presented with any relevant and accurate citations to law -- are a strong sign your lawyer is lying to you. And that likely means they are working for the other side, not for you.

My wife, Carol, and I have loads of experience with this in Alabama, and most recently, we got another sour taste of it from our interactions with Missouri public defender Patty Poe. (See here and here.)  In fact, Poe provided a classic example of how the compromised lawyer uses this unseemly trick.

From January through May 2017, Carol represented herself in a bogus criminal "assault on a law enforcement officer" case, brought for the sole reason of impeding civil claims related to our unlawful eviction that ended with cops breaking Carol's left arm. During that time, Carol filed at least four pro se motions that should have disposed of the case -- had Judge Margaret Palmietto bothered to hear them.

After Poe came on board in late May, we asked her multiple times to: (a) Schedule Carol's motions for hearing; (b) Modify them and refile them under her own name (if necessary) and seek a hearing; or (c) Start from scratch and file her own motions that would be dispositive, largely on constitutional grounds, and seek a hearing.

Poe refused to do any of those things, instead insisting that the case was headed for trial. She also claimed motions to dismiss were improper, in the circumstances of Carol's case, under Missouri Criminal Procedure. What was her excuse for failing to seek dismissal and for refusing to file pre-trial motions -- on issues that must be raised before trial or you risk waiving them, both at trial and on appeal? Here is how Poe explained it in an Aug. 27 email to Carol:

In regards to your Pro Se Motions, I won't refile them under my name because I don't agree with all of your points and/or the legal basis. Ethically, I can't file a motion to which I don't wholly support.

In general, A Motion to Dismiss is only used to raise the following defenses: constitutionality of the statute, double jeopardy, vindictive or selective prosecution, or entrapment. (Sup. Ct. R. 24.04). A Motion to Dismiss is not the proper vehicle to attack the sufficiency of the State's evidence, not to assert an affirmative defense, for example, castle doctrine. Additionally, a Motion to Dismiss is appropriate based on defects in the institution of the prosecution, for example the information and probable cause statement. The previous was the basis for dismissal on the trespassing count.

Let's address the second part of Poe's response first. Here are the relevant portions of Missouri Supreme Court Rule 24.04. (Note: As you will see below, Carol raised the issue of vindictive prosecution in a pre-trial motion. Also, she filed two motions that addressed the defective Probable Cause Statement. So, even by Poe's misstated standard, those two issues clearly were in play and should have been raised before the court.)

(b) Motion Raising Defenses and Objections.

1. Defenses and Objections Which May Be Raised. Any defense or objection which is capable of determination without trial of the general issue may be raised before trial by motion.

2. Defenses and Objections Which Must Be Raised. Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.

This section contains quite a bit of legalese, but can anyone find a single sentence that supports Poe's claim that a motion to dismiss is proper only in limited circumstances? I can't. In fact, the gist of the section is this: If you have anything that can be raised in a pre-trial motion, you had better do it or you risk waiving it.

Let's take a look at the four dispositive motions Carol filed pro se:

(1) Motion to Dismiss Charges (filed 3/14/17)

Key Points

(a) The Probable Cause (PC) Statement was made in bad faith, including multiple false statements and omission of facts that point to Carol's innocence;

(b) The PC Statement represents a gross "cover charge," brought only to impede Carol's efforts to achieve justice in a civil proceeding;

(c) Debi Wade, author of the PC Statement, admits she did not witness any alleged push involving Carol and Officer Jeremy Lynn. Wade says she was "advised" of such an event by an unnamed individual, making this inadmissible "sub hearsay";

(d) The PC Statement failed to state that the eviction itself was unlawful on multiple grounds.

(2) Motion to Have Proceeding Declared a Vindictive Prosecution (filed 3/14/17)

Key Point

(a) Charges were brought against Carol only because we challenged landlord Trent Cowherd's unlawful eviction, which ended with cops breaking Carol's arm.

(3) Motion to Dismiss Under Missouri's Castle Doctrine (filed 5/30/17)

Key Points

(a) We had filed a notice of appeal the day before the eviction, putting an automatic stay on execution. Carol knew this, and when unknown men crashed through her front door, she had every reason to believe they were there unlawfully, and we were the apparent victims of a home invasion.

(b) Under Missouri's Castle Doctrine, Carol had every right to defend herself and her property. This is true even though a written statement from "victim" Jeremy Lynn shows that he "caused physical contact" with Carol, not the other way around. In other words, Carol did not "assault" him, but under the circumstances and the Missouri Castle Doctrine, she had every right to use force to protect herself.

(4) Motion to Dismiss for Defective Probable Cause Statement (filed 5/30/17)

Key Points

(a) Debi Wade claims Carol "barreled headfirst" into her, but the Misdemeanor Information (MI) makes no mention of such an incident, so Carol is not charged with that. The two charging documents contradict each other, raising questions about the accuracy of both.

(b) The PC Statement omitted at least six key facts that are favorable to Carol and point to her innocence.

By clicking on the four links above, you can see that Carol's pro se motions are supported by accurate citations to law. Compare that to Poe's email statement claiming to disagree with Carol's assertions -- and you will notice that Poe's words are supported by . . . well, nothing.

As for Poe's stated concerns about her ethical obligations, that is laughable -- as we will show in an upcoming post.

(To be continued)


Lies my Missouri public defender told me (Part 1) -- 1/3/18

Lies my Missouri public defender told me (Part 2) -- 1/8/18


Anonymous said...

Ms. Poe might be better off in another profession.

Anonymous said...

I don't see why this landlord didn't do some relatively simple things, like demanding that you pay allegedly late rent. How hard is that? And why wouldn't his lawyer know that you can't file a rent and possession case if you haven't demanded rent be made. That's just a common-sense regulation to try to avoid unnecessary litigation.

legalschnauzer said...

@1:47 --

Good points, and I've wondered the same things. I do know why the landlord didn't demand that rent be paid: That's because our rent wasn't late, and it had been paid.

Still, so many simple things, like you can't evict someone based on an interlocutory, non-final judgment. That should be law school 101. In fact, any landlord should know that, without having to consult a lawyer.

Stupid, stupid, stupid.

Anonymous said...

@1:42 --

Not sure I agree that Ms. Poe's needs a new profession. But I'm not sure she has the constitution for criminal defense work. When someone's freedom is at stake, it's essential that a lawyer be straightforward and 100 percent honest with them. That's not only the law, it's a matter of simple humanity.

I'm not going to make a judgment about whether Ms. Poe lied to the Shulers, but I see a lot of fudging and uncertainty in her statements, giving the sense that she was less than transparent -- and I can see why that troubles them.

Anonymous said...

Let's cut to the chase: If the cops don't break Carol's arm, she isn't facing criminal charges. It's classic "Blaming the Victim." It's a grotesque form of obstruction of justice.

legalschnauzer said...

@3:41 --

You did an excellent job of cutting to the chase. I'm starting to think America should replace all of its cops and deputies and jails and replace them with Citizens' Watch programs. It would be a helluva lot cheaper, and the amateurs probably would do better job than the professionals.

Anonymous said...

Did anyone on the scene during your eviction suggest Carol had committed any offense until the "blue Shirt" cop slammed her to the ground and broke her arm?

legalschnauzer said...

@6:49 --

Nope, not a word was said about any offense re: either of us until "Blue Shirt" slammed Carol to the ground and yanked on her limbs, breaking her arm. Within 2-3 seconds of that happening, Sheriff Arnott pointed at Carol and said she had "assaulted a police officer," and two thugs put her in handcuffs. Before that, nothing.

Arnott was 10-15 feet closer to the incident than I was -- although I had an unobstructed view -- but I think his closeness and angle might have allowed him to see the grotesque twisting on Carol's arm that told him it was broken, and he had better make up a story fast. It's also possible he was close enough to hear the bones breaking in her arm.

Thomas S. Bean said...

Good lord, since when does The Sherrif bother showing up at an eviction?

Usually, the senior supervisor (The Sherrif) dispatches deputies for routine boring duties like evictions: unusual behavior suggests there might be more to this bizarre conspiracy by police state actors, especially with the abuse of force.

I think it's all a political harassment of a controversial blogger whose real enemies live in Dixie-Alabama, but somehow the long arm of The Republican Party can whip up an interstate police harassment campaign ( that unfortunately will likely never end....just saying from my thirty year stalking campaign).

Republicans are very vindictive, punitive, unstable, petty jack asses....and are famous for abusing any power they can grasp, even when they're not personally effected. Interstate politicized harassment, I assume, involves a fed agent likely to be monitoring and orchestrating the protocol of saddism ( COIN program). I hope I'm wrong. Cops and Feds live to harass any available target and will secretly maximize the intrusion using any available technology and organized chicanery.

They enjoy destroying family, friends, reputations, careers, and the rule of law....and usually get away with it.

With over staffing and a paucity of real authentic terrorism to focus on, you can bet Feds lust after a chance to unleash all their favorite dirty tricks and enjoy targeting any person deemed a non conformist or dissenter.

The Authoritarian Personality's defects include saddism to punish non conformity. Although it's a stretch to call a blogger a terrorist....cops and Feds are notorious for stretching threat assessments into laughable excuses to cover up an over aggressive response to what they disagree with. They don't like enemies of The GOP. They don't like educated people. They don't like a free press. The eviction leading to the assault was just a way of manufacturing a pretense for escalation and they likely knew they were on shakey legal ground.

All too typical and pathetic.