Tuesday, February 27, 2018

Missouri prosecutor Nicholas Jain, who brought "assault" charge without probable cause against Carol, is doing the same thing in case of alleged drunk driving


The Missouri prosecutor who is pressing bogus "assault of a law enforcement officer" charges against my wife, Carol, is doing much the same thing in a pending DUI case. And how is this for irony?Prosecutor Nicholas Jain is a convicted drunk driver himself, and he spent two years on probation as a result. You might think that little imbroglio -- not to mention three years of law school, which he entered while on probation -- would have taught Jain something about probable cause. But apparently, you would be wrong.

When I say the charges against Carol are "bogus," I mean they were brought without probable cause -- to arrest her, much less prosecute her. Anyone can read the Probable Cause Statement in her case (embedded at the end of this post) and see that not a single named human makes any accusation of wrongdoing on Carol's part. That means there is no probable cause. Even Officer Jeremy Lynn, the alleged "victim" of a push from Carol as he launched an unlawful eviction, states in his incident report that he initiated contact with Carol, by grabbing her -- and under Missouri law, with the central element of the offense being who "caused (or initiated) physical contact" -- that means Carol is not guilty. That has been apparent since we learned about the charge in January 2017. (Incident reports from Lynn and other officers also are embedded below.)

The Greene County Prosecuting Attorney's Office, under the direction of Dan Patterson, seems to make a habit of bringing cases without probable cause. And Nicholas Jain seems to wind up in the middle of such cases. Patterson and Jain recently received an undeserved victory when the Missouri Court of Appeals overturned a trial-court ruling that a DUI case -- State v. Charles Hollis Roux -- was launched without probable cause.

We do not yet have access to the full file on the Roux case, but our preliminary research indicates the appellate court cut a huge favor for Patterson and Jain. The record before us makes it clear trial judge Margaret Holden Palmietto (who also is handling Carol's case) was correct to find the Roux charge was brought without probable cause -- and there was no probable cause to even administer a portable breath test (PBT) in the matter.

The record we have so far shows Deputy Jason Flora, while on routine patrol, stopped Roux's vehicle because it had a non-functioning tail light. After a brief discussion, Flora asked Roux to step out of the vehicle and submit to a PBT.

According to the case file, Flora reported smelling the odor of alcohol and stated Roux had watery and bloodshot eyes. Roux admitted to drinking two beers, and an occupant of the vehicle also admitted to drinking alcohol. Did the deputy notice anything else that gave him reason to believe Roux was driving while impaired? According to the record before us, the answer is no.

Dan Patterson
In fact, Roux's vehicle did not even have a broken tail light. He simply had forgotten to turn it on. Did Flora observe Roux driving erratically? Nope. Did he notice Roux stumble or slur his words as he got out of the car? Nope. Did a dash-cam video show that Roux was uncooperative in any way? No. Did the deputy administer any field-sobriety tests, other than the PBT, which measured .08 -- the Missouri minimum for intoxication? No.

At a hearing on a motion to suppress, at which Roux argued all evidence was unlawfully gathered without probable cause and was due to be excluded, Judge Palmietto granted the motion and pretty much eviscerated the state's case. Here is her notation in the docket at case.net (State v. Charles Hollis Roux, Case No. 1631-CR00195.):

AFTER REVIEWING THE EVIDENCE PRESENTED AT THE HEARING, THE COURT FINDS THAT THE DEFENDANT FAILED TO TURN ON HIS TAIL LIGHTS ALTHOUGH HIS HEADLIGHTS WERE ON. THE OFFICER STOPPED HIM FOR FAILURE TO HAVE LIGHTED TAIL LIGHTS. THE OFFICER TESTIFIED THAT HE SMELLED THE ODOR OF INTOXICANTS COMING FROM THE VEHICLE AND THAT THE DEFENDANT HAD WATERY BLOOD SHOT EYES. THE DEFENDANT ADMITTED TO DRINKING TWO BEERS. AN OCCUPANT IN THE VEHICLE ALSO ADMITTED TO DRINKING ALCOHOL. THE DASH CAM VIDEO SHOWS THAT THE DEFENDANT WAS COOPERATIVE AND DID NOT STAGGER OR SLUR HIS WORDS. THE OFFICER ASKED THE DEFENDANT TO BLOW INTO A PBT BUT DID NO FURTHER INVESTIGATION AND DID NOT PERFORM ANY FIELD SOBRIETY TEST. THAT THE FACTS THAT DEFENDANT ADMITTED DRINKING, AND THE OFFICER TESTIFIED TO BLOOD SHOT WATERY EYES AND THE ODOR OF INTOXICANTS, ARE NOT SUFFICIENT TO ESTABLISH PROBABLE CAUSE TO BELIEVE THE DEFENDANT WAS IMPAIRED. THE COURT FINDS THAT A POSITIVE PBT IS ALSO INSUFFICIENT IN THE ABSENCE OF OTHER EVIDENCE OF IMPAIRMENT, TO ESTABLISH PROBABLE CAUSE TO ARREST DEFENDANT FOR DRIVING WHILE INTOXICATED OR TO COMPEL HIM TO SUBMIT BREATH TEST. THEREFORE, DEFENDANT'S MOTION TO SUPPRESS IS SUSTAINED.

Is Palmietto's finding supported by Missouri law? Yes, it is. From a case styled Hinnah v. Director of Revenue, 77 SW 3d 616 (Mo. Supreme Court, 2002):

The trial court, in setting aside the revocation of Hinnah's driver's license, simply indicated that the arresting officer "did not have probable cause to arrest" Hinnah for driving while intoxicated or an alcohol-related traffic offense. "Probable cause to arrest exists when the arresting officer's knowledge of the particular facts and circumstances is sufficient to warrant a prudent person's belief that a suspect has committed an offense." State v. Tokar, 918 S.W.2d 753, 767 (Mo. banc 1996). Whether there is probable cause to arrest depends on the information in the officers' possession prior to the arrest. State v. Wiley, 522 S.W.2d 281, 287 (Mo. banc 1975). There is no precise test for determining whether probable cause exists; rather, it is based on the particular facts and circumstances of the individual case. State v. Pruitt, 479 S.W.2d 785, 788 (Mo. banc 1972).

Notice that there is no precise test for determining whether probable cause exists in a Missouri DUI case. It's left largely to the trial judge, based on the particular facts and circumstances of an individual case.

Here is additional relevant law, from a case styled York v. Director, 186 SW 3d 267 (Mo: Supreme Court, 2006):

The circuit court correctly noted that the only uncontroverted indicia of York's intoxication were the smell of alcohol, the fact that York's eyes were watery, bloodshot and glassy, and York's admission to drinking one or two beers. However, the trial court, in its discretion, was free to draw the conclusion that there was no probable cause based upon its assessment of this evidence and the officer's own equivocation of the existence of probable cause.

That's two cases -- Hinnah and York -- where Missouri appellate courts upheld a trial-court finding that probable cause did not exist in a DUI case. And the circumstances of both were very similar to those in Roux.

So, why did an appellate court overturn Judge Palmietto's finding in Roux, which clearly was supported by Missouri law? Our best guess is that the three-judge appellate panel (two of them Republican appointees) felt they owed Patterson and Jain a favor. They also probably reversed in order to earn political points, in an era where the public largely is disinterested in the facts and law surrounding a DUI -- or any other kind of case.

Given Patterson and Jain's habit of bringing cases without probable cause, they do not deserve any favors. In fact, they deserve to be investigated by the U.S. Justice Department.

25 comments:

Anonymous said...

Clearly you have an axe to grind against Jain. And it leaves you in the position of defending a drunk driver. When's the last time you defended a dangerous driver? Was it your nephew's case? Nah, had a different axe to grind there.

legalschnauzer said...

You seem to be a bit confused:

(a) Jain is the convicted drunk driver.

(b) Roux has not been convicted of anything in this case, and the trial judge found there was no probable cause to even test him for impairment. He was not driving erratically, was not slurring his words, was not weaving as he walked. No probable cause; trial judge determined that, not me. Under Missouri law, the finding is left to discretion of trial judge, and Jain should know the law on that. So, why the appeal, and why the bogus ruling by Missouri Court of Appeals?

(c) Roux is a long way from being a convicted drunk driver; Jain is a convicted drunk driver.

(d) Are you disputing that Jain is a drunk driver? He pleaded guilty, you know, and spent two years on probation. It that's true, where is my "axe to grind"?

You, of course, have no clue. Kind of makes me think you have an axe to grind, and you are defending a legit drunk driver.

Anonymous said...

Hey, stupid -- I mean @6:16,

Try reading the post. Jain wasted taxpayer dollars by bringing an appeal where the trial judge clearly got it right. Jain played hard ass with a citizen who, according to trial judge, did not even exhibit probable cause of impairment -- while Jain himself is a drunk driver.

Jain deserves the public spanking he is getting.

Anonymous said...

Surprised Missouri has such a loosey-goosey law on probable cause in DUI cases. Seems like they leave it almost totally to trial judge's discretion, with very few guidelines.

Anonymous said...

I have no idea if Mr. Schnauzer has an "axe to grind" with Prosecutor Jain, but if he does, so what? Jain brought charges without probable cause against LS's wife. That would piss me off. Sometimes, an "axe to grind" is merited. And having one is not necessarily improper, unethical, or unlawful.

Anonymous said...

Looks like the white boy bitches are out early, protecting their fat, drunk, corrupt, lazy-ass prosecutor hero.

White boy bitches lead very empty lives.

Anonymous said...

The record is very clear that Nicholas Jain is bad at his job. Big waste of taxpayer dollars.

Anonymous said...

Wonder why the cop did not conduct any field-sobriety tests? Lazy?

Anonymous said...

The cop who made this arrest probably has the IQ of a gnat. Police depts don't hire the sharpest knives in the drawer.

Anonymous said...

White boy bitches never discuss issues actually raised in the post. They aren't capable of it. That's why they are white boy bitches.

Anonymous said...

I'm a black woman you idiot.

Anonymous said...

yep. Roux is innocent until proven guilty. But Noah Shuler is guilty until proven innocent. On this blog anyway.

Anonymous said...

It would be nice to know what time the officer pulled over Mr. Roux. The document you link to says that it was in the "early morning hours" and that the pulled over a 2013 Sukuzi that was driving without illuminated tail lights. 2013 Suzuki's do have daytime running lights and if they are not separate DRLs, they are typically the bright bulbs at 33% power. It is possible that Roux could have forgotten to turn his headlights on but driving at night without taillights on is a driving hazard and I would expect to be pulled over if I did that.

Also field sobriety tests are not considered scientifically reliable. They are individually 65% to 77% accurate and when combined, they are 82% accurate.

http://www.fieldsobrietytests.org/accuracyoffieldsobrietytests.html

Where the state's case against Roux falls apart is that the reading of 0.08% falls within the PBT's margin of error. Breathanalyzers have at least a 0.01% margin of error if not higher and for the test to be reasonably accurate, the person being tested needs to be monitored for at least 20 minutes before the test is administrated to allow for any alcohol in the mouth to evaporate.

I do believe there was probable cause to pull Roux over.
I do believe there was probable cause to suspect Roux of driving drunk. The officer smelled alcohol and Roux admitted to having two beers.
I am not convinced there was sufficient evidence to convict Roux of driving drunk.

legalschnauzer said...

@10:34 --

I don't think anyone disputes there was probable cause to pull Roux over. That's not the issue. But the trial judge found lack of probable cause that Roux was impaired -- thus no probable cause for the PBT or for DUI. As you can see from the post, such rulings are almost totally in the trial judge's discretion in Missouri, with very little in the way of guidelines.

Jain and his boss, Patterson, brought an appeal without legal justification, based on my research. The Missouri Court of Appeals probably reversed to earn political points.

legalschnauzer said...

@9:41 --

Can you cite anything from this blog that suggests Noah Shuler is guilty until proven innocent?

legalschnauzer said...

@8:42 --

You are a black woman who feels the need to defend a white, conservative, fat, drunk-driving prosecutor such as Nicholas Jain? Really? You must be a most unusual black woman.

What are your motivations for defending a worthless tub of lard like Mr. Jain?

Anonymous said...

not defending, just weary of your hypocrisy

legalschnauzer said...

Hypocrisy about what?

Anonymous said...

So the officer smelling alcohol and Roux admitting to the officer that he had been drinking alcohol when asked is not probable cause to test Roux?

"Flora reported smelling the odor of alcohol and stated Roux had watery and bloodshot eyes. Roux admitted to drinking two beers"

legalschnauzer said...

@7:58 --

I've learned some interesting stuff from researching Missouri DUI law, and quite a bit of it surprised me. I'm guessing Missouri has DUI laws similar to those in other states. A couple of key things I've learned:

(1) The key element in a DUI is driving while impaired, or exhibiting signs that you were driving while impaired. It's not an offense to drive with the smell of alcohol coming from your vehicle. It's not an offense to drive with bloodshot eyes. The offense is driving while impaired.

(2) Under Missouri law, determinations about probable cause re: DUI are left almost entirely to the discretion of the trial judge -- with very little in the ways of guidelines.

The point of my post is to provide insight on Missouri DUI law and to show that the trial judge acted within the law -- and Jain/Patterson brought an appeal with no substantial justification, even though they got a reversal.

Reasonable people can disagree about Missouri law on this subject. But the post shows the trial judge acted correctly under the law, and the case should not have been appealed -- and it certainly should not have been reversed.

The answer to your question is, "The trial judge found it was not probable cause, and Missouri law puts that determination in her hands. So, no, there was no probable cause to test Roux and certainly not to arrest and charge him."

That might not smell right to you, but it's in line with Missouri law.

Anonymous said...

But if you'd had a case in front of this judge, he'd be corrupt if he ruled against you, right?

But he's in line with Missouri law here because it fits the narrative you want to promote about Jain.

legalschnauzer said...

First, the judge in the case is a woman. You might try getting that fact straight before going on to your other "points."

legalschnauzer said...

Memo to @10:41 AM --

I've warned you not to communicate with me further, and I've warned you that you are on the verge of facing criminal charges. I also encouraged you to take my warnings seriously, but apparently you've chosen to ignore them.

Final warning: I'd better not hear from you anymore. You are engaging in harassing communications, and it had better cease.

Thomas S. Bean said...

..."Anyone can read the Probable Cause Statement in her case (embedded at the end of this post) and see that not a single named human makes any accusation of wrongdoing on Carol's part. That means there is no probable cause."....

____________

Note: Another con run on me is the pattern and practice used by law enforcement to hide the specific name of the source of the info that tripped the patrol cops to respond. They did that to several of my known associates. They did it to me. If you cannot afford a zealous attorney willing to investigate (costs money), you will likely plead guilty to save money rather than gamble.

The police reports often times keep the defendant blind so you cannot find and subpoena the witness against you. I suspect, law enforcement has been hiding a secret, intrusive, illegal civilian run surveillance that doesn't use warrants (to avoid future due process exposure, time limitations or minimization). What does "stiffing the call" and "The Hand Off Method" of laundering tainted evidence mean?

This chicanery allows law enforcement to: track vehicles using electronics forever (thirty years in my case) while also avoiding compliance with Discovery and due process to subvert an Exclusionary Rule application to Suppress Tainted Evidence. This allows law enforcement to run a secret star chamber court that metes out punishment in the form of intrusive foot, vehicle, electronic surveillance in public and in private at your home. That surveillance delivers tainted evidence used by cops who consider it an "anonymous tip" or "civilian source" with no focus on the crimes committed by civilians operating without warrants.

It's a big partnership of right wing Republican trash (civilians, cops) where criminal and civil liability is avoided with every authority figure (Judges, Prosecutors, Cops, Feds, Public Defenders) all staking out their gilded edge version of Plausible Deniability to secure Plausible Credibility.

My guess: that's what DOJ's Community Policing Programs is, a platform for COINTELPRO with optional NSA classified programs deploying Military Technology.

At some point long ago, the Judges in most states created The Citizen Rule Exception to The Exclusionary Rule to allow tainted evidence (derived from warrantless use of electronics) to be used against targets. The abuse of this loophole is rarely challenged due to a lack of notice to the target after charges are filed. That issue needs to be revisited with the argument that "civilian vigilantes are police state actors" because "they have a mutual intent and patterns and practices". If it quacks like a duck, walks like a duck, looks like a duck and runs surveillance like a duck..........it's a police state actor duck and the civilian rule exception cannot be applied.

It would not surprise me that the eviction team had monitored the Shuler targets in their home using invasive electronics as a common Community Policing tactic deployed by unidentified civilian vigilantes who collude with law enforcement. I've always seen the Shuler unemployment and eviction facts as the tip of the iceberg where more outrageous criminality and chicanery looms beneath the waters of assumed reality.

Law enforcement plays a "Win At All Costs" game on a tilted playing field while pretending to be all american heroes dedicated to serving justice.

Thomas S. Bean said...

http://visupview.blogspot.com/2013/05/the-process-strange-and-terrible.html


..."The Bureau has a saying that goes something like "once FBI, always FBI" and for good reason. Any number of former Bureau men, typically operating through private detective firms, have continue to operate on behalf of the FBI in a more covert fashion. In such cases they are typically gathering intelligence, usually relating to industrial security, for the Bureau or another agency in the US intelligence community.

While some may scoff at the notion that Gunderson was working under deep cover during his affiliation with the conspiratorial right, such an operation is hardly without precedent. Guy Bannister, a "former" FBI Agent and New Orleans private detective who has been widely linked to both CIA plots to overthrow Castro and the Kennedy assassination, was the Louisiana organizer of the Minutemen (the 1960s version, which was a prototype of the modern day militia movement) in addition to being a member of the John Birch Society and affiliating with various paramilitary anti-Castro Cuban organizations such as the Cuban Revolutionary Council. All the while working as a private detective and collaborating with these "patriot" type organization Bannister continued to report to the FBI."....