Thursday, March 29, 2018

Missouri Public Defender Patty Poe had nothing to do with getting jail time off the table in Carol's case, and her con game is a sign of corruption in the Ozarks

The ugliness of an eviction
For months, Missouri public defender Patty Poe had been trying to con Carol and me with her mantra that "even if cops had acted unlawfully in your eviction, that was not a defense to the 'assault of a law enforcement officer' charges against Carol." As we've already shown, Poe tended to "put the cart before the horse," focusing on Carol's defense, when the first order of business was to attack the state's case.

Given that the prosecution holds the burden of proof -- if it can't make its prima facie case, there is no reason to have a defense -- even we (as non-lawyers) knew Poe was going about things in a bass-ackwards way. Carol was about to drive that home forcefully enough that it apparently caused Poe to bail out of the case -- taking the possibility of jail time with her.

The docket at for State v. Carol T. Shuler (1631-CR07731) reveals a curious time-stamping issue -- and we will address that shortly. But evidence in our possession indicates Carol's ability to back Poe into a corner on relevant law is what caused jail time to be taken off the table.

When we left Poe in our previous post, Carol was shredding her argument from State v. Summers, 43 S.W. 3d 323 (2001)regarding the impact of cops' unlawful actions. Poe left her claim out there that cops' unconstitutional acts provide no defense for victims of those acts, so Carol decided to jump on it -- and she apparently landed a knockout blow. From Carol's email to Poe, promptly showing the latter's claims re: Summers were so much horse feces:

The U.S. Supreme Court disagrees with you. In Soldal v. Cook County, SCOTUS found that an illegal eviction implicates Fourth Amendment rights. From a summary of the case at Wikipedia:

"Soldal v. Cook County, 506 U.S. 56 (1992), was a United States Supreme Court case in which the Court held that a seizure of property like that which occurs during an eviction, even absent a search or an arrest, implicates the Fourth Amendment. The Court also held that the Amendment protects property as well as privacy interests, in both criminal as well as civil contexts. Finally, saying that "certain wrongs affect more than a single right", the Court left open the possibility that the Fourteenth Amendment's protections against deprivation of property without due process of law may also be implicated."

My Fourth Amendment rights were trampled, which means a motion to suppress should kick out all evidence collected due to an illegal eviction. That means the probable cause statement has to be kicked, leaving the prosecution with no case.

I would call that a defense; you might call it something else. But whatever you call it, this case demands that a motion to suppress be filed -- and based on my reading of 24.04, a motion to dismiss also would be proper -- to get all evidence booted because it was the fruit of an illegal seizure/search. Even you don't make much of an argument that the search was legal. You seem to claim it doesn't matter. Well, Soldal makes it clear that it does matter. Palmietto's comments from the bench at my last hearing make it clear she knows it matters. Therefore, we need to file a motion to suppress or dismiss -- I believe either is proper under the law.

Soldal is so on point that it even involves an eviction. Here is a summary of the issues at hand, from the opinion itself, written by the late Justice Byron "Whizzer" White:

While eviction proceedings were pending, Terrace Properties and its manager, Margaret Hale, forcibly evicted petitioners, the Soldal family, and their mobile home from a Terrace Properties' mobile home park. At Hale's request, Cook County, Illinois, Sheriff's Department deputies were present at the eviction. Although they knew that there was no eviction order and that Terrace Properties' actions were illegal, the deputies refused to take Mr. Soldal's complaint for criminal trespass or otherwise interfere with the eviction. Subsequently, the state judge assigned to the pending eviction proceedings ruled that the eviction had been unauthorized, and the trailer, badly damaged during the eviction, was returned to the lot. Petitioners brought an action in the Federal District Court under 42 U. S. C. § 1983, claiming that Terrace Properties and Hale had conspired with the deputy sheriffs to unreasonably seize and remove their home in violation of their Fourth and Fourteenth Amendment rights. The court granted defendants' motion for summary judgment, and the Court of Appeals affirmed. Acknowledging that what had occurred was a "seizure" in the literal sense of the word, the court reasoned that it was not a seizure as contemplated by the Fourth Amendment because, inter alia, it did not invade petitioners' privacy.

Held: The seizure and removal of the trailer home implicated petitioners' Fourth Amendment rights.

The similarities between Soldal and our situation are stark and stunning. Here are just a few:

(1) Soldal involved unlawful police actions while eviction proceedings were pending. The same was true in our case. Cops had only an interlocutory order here in Missouri, with a followup hearing set for a month away to consider other issues, including our counterclaim;

(2) Cops in Soldal knew there was no eviction order. That almost certainly was true in our case, as well. There could not have been a valid eviction order in Missouri because the judgment was not final. Plus, we've seen no evidence of a writ of execution that was signed by a judge or included the county seal, as required by law.

(3) In Soldal, the landlord showed utter disregard for the law, moving ahead with an eviction when she knew it had not been authorized by the court. Landlord Trent Cowherd acted in much the same fashion here in Missouri.

Here is Patty Poe's limp-wristed response to Carol's assertions about Soldal:

Hi Carol:

I don't find the Soldal case to be analogous to your case in many regards, especially considering there was a judgment in your case and not in the Soldal case. It goes back to what the officers reasonably believed, in Soldal they knew that there wasn't an eviction notice. Additionally, there are around 45 cases that declined to adopt Soldal or had some negative treatment.

Additionally, the State filed a notice of jail waiver (attached). Therefore, I will be withdrawing my representation pursuant to RSMo 600.042.4(2). My motion to withdraw will be heard on November 22 at 9:00 AM, you need to be there anyway. If the judge sustains my motion to withdraw you will need to hire private counsel or represent yourself. The good news is, they can only seek a fine, community service, or some type of class instead of jail time.

I will not be doing any further work on your case.



Poe's first paragraph is pure rubbish. There was no final judgment in either our case or the Soldal case, so they absolutely are analogous. Poe provides no evidence, and we have not found any, to show that Soldal is anything but good law.

In the second paragraph, Carol learns that Poe is bailing out of the case, and jail time is off the table. Is that because of anything Poe did? I don't see how. From where I sit it's clear, Carol backed Poe into a corner by showing motions to suppress had to be filed, and Poe was too big a wuss to do it -- so she bailed out. What a profile in courage!

As for the time-stamping issue, the docket shows prosecutor Nicholas Jain filed his Notice of Jail Waiver on 11/1/17, with Poe filing her Motion to Withdraw on 11/6/17. If that were the case, why didn't Poe tell Carol that up front? Why go through the rigmarole re: Summers and Soldal, etc.?

Experience has taught me that courthouse clerks' offices are among the most corrupt places on earth. I suspect the Jain and Poe documents were prepared simultaneously, and someone arranged for his to have an early time stamp, covering up signs of possible collusion.

My guess is that Jain and Poe know they can't possibly get a conviction against Carol in a court with the slightest hint of integrity. Their only hope is that Judge Margaret Holden Palmietto is corrupt and acts contrary to black-letter law by denying Carol's motions to suppress. And given evidence in recent months, it's starting to appear that Palmietto is utterly lacking in integrity -- showing my efforts to cut her slack and give her the benefit of the doubt were wildly misguided.

Those, by the way, are the motions Poe steadfastly refused to file, costing us at least five or six months of court headaches. So, we're supposed to believe Patty Poe was acting out of the goodness of  her heart by helping get jail time off the table?

Not for one second. I, for one, don't believe there is any goodness in her heart. And it's becoming clear the Greene County Courthouse and its environs -- judges, sheriff's office personnel, public defenders, prosecutors -- contain a virulent form of corruption that could give Shelby County, Alabama, a run for its money.

They all are packed into a tight legal-tribe nest that needs to be fumigated. I would be happy to be involved in that project.


Anonymous said...

The big questions is: Who caused Poe to become compromised? I don't think she made that decision on her own.

Anonymous said...

When Poe said she wasn't going to push to make prosecutors to turn over discovery, that was a sure sign she was corrupted.

Anonymous said...

I had never heard of the Soldal case out of Cook County, IL (Chicago). Interesting case and very much in line with what you and Carol have experienced.

legalschnauzer said...

Shortly after Carol raised Soldal, Poe bailed out.

Anonymous said...

Any decent lawyer should know the first goal is to attack the prosecution's case. If you do a good enough job with that, you don't have to prepare a defense.

Poe must not be a decent lawyer.

Anonymous said...

My guess is that Poe hardly is alone in trying to cover up police misconduct. I'd say Poe's boss, the judge, presiding judge, prosecutor, sheriff all are involve. Call me "CT," but I smell a conspiracy.

Anonymous said...

There was no judgment in the Soldal case. You had a judgment against you, but that's only part of the process. The landlord and cops must have a valid writ of execution to move forward with eviction. I've seen the writs you've posted here, and they are not lawful. Not signed by the judge, not posted with County Seal. This is very poor legal work by the lawyer involved and terrible policing by the deputies.

So you have no judgment in the Soldal and no valid writ in your case. That makes the two cases very similar, and Poe is off target with her claim that the two cases are inapposite.

Anonymous said...

I think the Public Defender's office, at some point, knew the fix was in on Carol's, and they didn't want to waste their time -- with so many cases on their plate -- on a case that was fixed. I see it as a practical decision on the PD's part.

legalschnauzer said...

@11:00 --

You might very well be right. I hadn't thought of that, but there is a lot of evidence to support what you say. Why should the Public Defender waste his time with a case that is fixed? He shouldn't, and that could be why the PD office wanted out.

If you are right, this is the kind of stuff that could land a lot of people -- judge, PD, prosecutor, sheriff, lawyers, landlord -- in federal prison, under 18 USC 242. (See below.)

PD office should report the corruption to the proper tribunal, but they won't do that. That would actually serve the interests of Greene County citizens, and they don't care about that.

Anonymous said...

I believe SCOTUS made one mistake in the Soldal ruling, and here it is:

More significantly, "reasonableness is still the ultimate standard" under the Fourth Amendment, Camara, supra, at 539, which means that numerous seizures of this type will survive constitutional scrutiny.

The term "reasonableness" is a reference to the "good faith exception" re: Fourth Amendment. A long line of case law holds that the good faith exception applies only to searches with warrants. A warrantless search is considered presumptively unreasonable. I'm not aware of any law that equates a writ of execution with a warrant. They are not the same thing. The Soldal court does not find that they are the same, but it hints at such, and I believe that is off target.

Going to do more research on this, but for now, I don't believe reasonableness is the standard for evictions because they involve writs, not warrants.

Anonymous said...

This whole deal went wrong when the cops entered the Shulers' home. There were no grounds for the cops being inside the home. The duty to evict, by law, falls on the landlord or his representative. The only duty for deputies is to be on hand to make sure the process is carried out peacefully. Instead, these thugs entered the home and ensured that things would be anything but peaceful.

Anonymous said...

1:41 - It wasn't the Shuler's home.

Anonymous said...

It was their home, their domicile, their residence. You apparently aren't aware of this, but renters have homes.

The building was the landlord's. But the Shulers had paid rent, making it their home, and I'm pretty sure you can't point to any evidence that suggests they were there unlawfully.

Anonymous said...

@12:50 --

Agreed. The reasonableness standard only applies to "with warrant" situations. There was no warrant here, so the search and seizure were presumptively unreasonable.

This case apparently didn't even have a legit writ of execution, and the officers surely knew that.

Anonymous said...

@2:05 here . . .

I forgot to include citation to case law. This is from a Missouri case -- State v. Clampitt.

"Subject to only a few specific and well-delineated exceptions, warrantless searches and seizures are deemed per se unreasonable." State v. Johnson, 316 S.W.3d 390, 395 (Mo. App. W.D.2010).

Anonymous said...

If the cops were acting "reasonably," why aren't they turning over discovery?

Anonymous said...

You plan to file a criminal complaint under 18 USC 242? I'm not familiar with how that statute works.

legalschnauzer said...

@4:58 --

You can count on it. Don't feel bad about not being familiar with it. Many lawyers are clueless about it. But I'm fortunate to have an "adviser" who knows a great deal about it, and proper authorities will receive the paperwork in the not-too-distant future. Could be grim for prosecutors, cops, lawyers in this case -- plus a certain landlord.

legalschnauzer said...

Here is a post about cops who have been found guilty under Sec. 242 and are headed to prison. The cases cited are from the past 12 months or so, so thug cops increasingly are being held accountable:

legalschnauzer said...

Here is key information about the penalties cops can face under Sec. 242. I'm researching similar cases involving prosecutors:

Online research shows the threat of prison time is very real for cops who engage in "deprivation of rights under color of law," per 18 U.S.C. 242. This language from Sec. 242 should make a few sphincters tight around the GCSO:

. . . and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years,

Missouri cops could be looking at up to 10 years in federal prison? Yes, indeed. And we've found a number of recent cases from around the country where cops wound up in the slammer for roughing up citizens and depriving them of their right to be free from the use of excessive force.

legalschnauzer said...

A horrible case that falls under Sec. 242 occurred recently in Alabama:

As for federal charges, those would come under 18 U.S.C. 242 (deprivation of rights under color of law), and that could spell big trouble for the cops who beat Wilkerson. They could face up to 10 years in federal prison, and depending on the circumstances, punishment might become even more severe than that. The statute reads in part:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both . . .

legalschnauzer said...

I found an article about 242 from the U.S. Department of Justice:

legalschnauzer said...

Here is key information from the 242 article above:

The Department of Justice (“The Department”) vigorously investigates and, where the evidence permits, prosecutes allegations of Constitutional violations by law enforcement officers. The Department’s investigations most often involve alleged uses of excessive force, but also include sexual misconduct, theft, false arrest, and deliberate indifference to serious medical needs or a substantial risk of harm to a person in custody. These cases typically involve police officers, jailers, correctional officers, probation officers, prosecutors, judges, and other federal, state, or local law enforcement officials. The Department’s authority extends to all law enforcement conduct, regardless of whether an officer is on or off duty, so long as he/she is acting, or claiming to act, in his/her official capacity.

In addition to Constitutional violations, the Department prosecutes law enforcement officers for related instances of obstruction of justice. This includes attempting to prevent a victim or witnesses from reporting the misconduct, lying to federal, state, or local officials during the course of an investigation into the potential misconduct, writing a false report to conceal misconduct, or fabricating evidence.

Anonymous said...

Important article from NY Times -- "How to Prosecute Abusive Prosecutors"

Anonymous said...

If you have a good case, I'm sure lots of good lawyers would love to take it on for you on contingebcy. If you end up filing it pro series, I guess we'll know that no one would take it. That'll probably turn out like all your other products see cases I guess.

legalschnauzer said...

@10:16 --

We've already had three lawyers offer to take the civil case. We declined to have them represent us, for a variety of reasons. It's a two-way street. Does the lawyer want to represent us? That's part of the equation. Do we want the lawyer to represent us? That's another part. What are the possible financial arrangements? That's another part.

You apparently don't know much about how many lawyers make decisions in the real world. They don't just ask, "Is it a good case?" They ask, "How will my comrades in the legal tribe react to this? Will it piss off judges, powerful lawyers, law enforcement? Will taking this case hurt my other clients and my overall practice? If the answer to those questions is yes, many lawyers will pass on a good (even great) case out of concerns it could hurt (or even ruin) their practice because of the blow back.

Survival in the legal field often involves being a "good little boy" within the profession. My brother is a classic example of that. He wouldn't rock the boat for any amount of money. He is a well-trained lap dog, and there are many like him in the field.