Carol filed an Application for Change of Judge, for Cause, under Missouri Supreme Court Rule 51.05(D) -- and Judge Margaret Holden Palmietto did step down, but not for the right reason. Palmietto could not even get recusal right, which was in keeping with her actions on pre-trial motions.
Palmietto denied Carol's motion for cause -- which called for her to step down due to comments and actions taken from the bench -- but did grant a change of judge under Rule 32.09(a). Due to timeliness factors, Carol was not entitled to a recusal under Rule 32.09(a). But she received one anyway, apparently because Palmietto did not want to call attention to the fact she had been cheating Carol and engaging in blatant impropriety from the bench.
After Palmietto stepped down on 5/7, the case was assigned to Judge Becky Borthwick, who recused two days later, without explanation. Carol's case then wound up with Judge Jerry Harmison Jr., an appointee of scandal-plagued Republican Gov. Eric Greitens.
Will Harmison be an improvement over Palmietto? I've learned to have low expectations for judges, so I doubt it. But he can't be any worse.
Carol filed six dispositive motions -- meaning, by law, they should have settled the matter and forced dismissal of the state's case, short of a trial -- and they were scheduled for hearing on 3/26. Palmietto butchered every motion, not coming close to ruling correctly under the law on any of them.
On that many motions -- involving important and fairly complex matters of law and fact -- you would expect a judge to take matters under advisement before issuing rulings. But not Palmietto. The minute argument was over, she summarily denied all of Carol's motions -- providing zero indication she had read the motions or given her rulings any thought.
Carol's most important document was a Motion to Suppress Evidence, which is a common pre-trial filing in many criminal cases. In essence, the motion claimed any evidence against Carol was obtained via an unlawful search and seizure, violating the Fourth Amendment to the U.S. Constitution. Given that our eviction was unlawful on at least 10-12 grounds, this should have been a no-brainer. With all of its evidence suppressed, the state's case would have been kaput. But Palmietto refused to suppress evidence that clearly was unlawfully obtained.
There was no evidence to speak of anyway. Officer Jeremy Lynn, the "victim" of Carol's alleged push, has admitted in an incident report that he grabbed Carol, not the other way around, and he never says that she pushed (or even touched him). In fact, he says Carol tried to pull away, which is the opposite of a push. Even though the state obtained no legitimate evidence via its unlawful search and seizure of our rented duplex apartment, Palmietto's denial still was a massive clunker. Carol's motion describes the inanity of the judge's rulings, especially on a central issue. (The full motion is embedded at the end of this post.)
A big issue in this case: Was there a judge-signed, court-approved writ of execution that gave approval to proceed with the eviction? Under Missouri law, per State ex rel Turner v. Sloan (MO, 1980), “An enforcement of judgment by execution supposes a judgment not merely interlocutory but become final.” Was there a final judgment in the rent-and-possession case landlord Trent Cowherd brought against the Shulers? The docket shows in at least two places that the answer is no. The possession order twice is listed as interlocutory (non-final), with a hearing scheduled for roughly a month in the future to consider other issues, including the Shulers’ counterclaim for breach of contract. The Shulers never have been presented with a court-authorized eviction notice, and one does not exist in the record – and that’s because there could not be one, given that the judgment was only interlocutory and not final. At the suppression hearing in Carol Shuler’s criminal matter, the state called two witnesses – Officers Scott Harrison and Jeremy Lynn – in an apparent effort to show the eviction was lawful. That effort failed miserably. Harrison admitted under oath that the writ of execution in his hand, the one upon which the eviction was based, did not contain a judge’s signature or any form of court approval. Despite that, Harrison burst into the Shulers’ home and pointed an assault weapon at Roger Shuler’s head. Officer Lynn stated under oath that he never had even seen a writ of execution for the Shulers’ eviction.
The state's two witnesses essentially claimed ignorance as an excuse for their actions. They undoubtedly are ignorant, but that excuse does not cut it under the law:
At the suppression hearing, the state’s witnesses – Officers Harrison and Lynn – sought to excuse their actions by essentially claiming ignorance of the law. The U.S. Supreme Court has held on multiple occasions that ignorance of the law does not excuse constitutional violations: “In sum, a Fourth Amendment violation occurs when police engage in a warrantless search and no exception to the warrant requirement applies, or when police search pursuant to a warrant not based on probable cause. That the police officer acted in an objectively reasonable (i.e., non-negligent) manner is irrelevant to the existence of a constitutional violation. See, e.g., Anderson v. Creighton, ___ U.S. ___, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)
Palmietto showed no sign that she knew who carries the burden of proof in a suppression hearing, even though Carol's motion spelled it out:
|Trent Cowherd and wife, Sharon|
Under Missouri law, per State v. Hernandez, 954 S.W.2d 639, 642 (Mo.App. W.D.1997), the burden in a suppression hearing is on the state to prove that evidence is admissible. Here, the state failed in spectacular fashion. Neither of its witnesses could point to a court-authorized writ of execution that would have made the Shulers’ eviction lawful. Thus, it was unlawful, and all evidence resulting from it, by law, must be excluded. Palmietto’s failure to rule correctly on this central issue might be the most glaring example of her impropriety in the instant case.
How wrong was Palmietto's finding on this one key motion?
Palmietto ruled at the suppression hearing that officers’ actions were reasonable under the circumstances, citing the “good faith exception” articulated in U.S. v. Leon, 468 U.S. 897 (1984). Leon, however, applies only to searches with a warrant. Missouri case law holds: “"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). There was no warrant in the Shuler case because there were no allegations of criminal activity. This was an eviction, a civil matter, and it did not involve even a lawful, court-approved eviction order. Thus, the officers’ actions, by law, were per se unreasonable – and Palmietto butchered this issue and displayed glaring and actual impropriety.
Bottom line: The state had the burden of proof, and its two witnesses admitted they broke into our home without seeing a court-authorized, judge-signed eviction order. In other words, this was a classic "self eviction," which landlord Trent Cowherd perpetrated with his lawyer (Craig Lowther), but Palmietto found it constituted "reasonable" police work -- even though she cited no law that the "reasonableness" standard even applied in a warrantless search.
Palmietto's prejudicial statements from the bench also played a role in the whole circus:
On multiple occasions during recent hearings, Palmietto has said, in terms of possible punishment that Shuler faces, “It’s just a fine.” That suggests Palmietto has a predetermined outcome in mind, a guilty verdict, so that she easily can dispose of a case that has been dragging on for more than 15 months. It suggests Palmietto does not care if Shuler is found guilty of a crime she did not commit – and for which there was not even probable cause for issuance of a warrant.
(To be continued)