Thursday, May 17, 2018

Will Jerry Harmison Jr., new Missouri judge in Carol's "assault" case, correctly suppress evidence and force the prosecution to stop stonewalling on discovery?

Jerry Harmison Jr.
The incorrect rulings Margaret Palmietto made before stepping down as judge in my wife Carol's "assault" case, by Missouri law, have no impact moving forward. In fact, new judge Jerry Harmison has an obligation to rehear issues raised in Carol's Motion to Suppress and other dispositive motions. Harmison also has an obligation to make sure the state does not get away with wildly bad-faith efforts to stonewall on discovery?

Does Harmison know any of this? Does he have enough integrity to rule correctly and ensure a case that cannot go to trial is dismissed, as the law requires? Does he have the cojones to issue subpoenas and force the state and Greene County Sheriff's Office to turn over documents that are essential to Carol's defense? We've seen no signs of it. (Of course, if Harmison acts lawfully and dismisses the case, there will be no need for discovery.)

Harmison has put nothing on the docket that suggests he intends to rehear the motions Palmietto butchered on the first go-around. Given that Harmison is an appointee of scandal-plagued Republican Gov. Eric Greitens, we have little confidence the judge has any integrity at all.

Carol has filed motions on both issues -- to have the suppression and other motions reheard and to have subpoenas issued on discovery after the state repeatedly has failed to make disclosures. (Motions are embedded at the end of this post, and discovery clearly will require a continuance.) Harmison has not ruled on either motion.

What is the law on these issues. It's very clear. On the rehearing issue, controlling Missouri law is found at State v. Pippenger, 741 S.W.2d 710 (Mo. App. W.D. 1987). From Pippenger:

The Supreme Court in State v. Howell, 524 S.W.2d 11, 19 (Mo. banc 1975), held that the trial court ruling on "a motion to suppress evidence prior to trial is, in a sense, interloctory in nature." The court continued, "[t]he real damage is not done until the evidence is introduced in the trial of a case for consideration by a jury. Thus, a trial court can receive additional evidence and change its ruling prior to admitting the objected-to items in evidence before a jury." Id. This court has stated that the trial court's decision on interlocutory motions is not conclusive or binding on future proceedings. Noll v. Noll, 286 S.W.2d 58, 60-61 (Mo.App.1956); State v. Beaver, 697 S.W.2d 573, 574 (Mo.App.1985); see also Cook v. State, 281 Md. 665, 381 A.2d 671, 674 (1978), cert. denied, 439 U.S. 839, 99 S.Ct. 126, 58 L.Ed.2d 136 (1978). It is, therefore, incumbent for the trial court in the instant case to hear the evidence and rule thereon and not rely upon what some other trial court may have done before in another cause.

Language does not get more clear than that. Palmietto's faulty rulings mean nothing at this point; they are not binding and they are not conclusive. For Harmison, it is "incumbent" on him to rehear the evidence -- whether he knows it or not.

As for the law on discovery, Carol spells that out in her reply to the state's effort to continue stonewalling. Much has been written across the country recently about dishonest and deceitful prosecutors, and Carol has been subjected to two of them -- drunk-driving Nicholas Jain and smarmy hack Nicholas Bergeon -- not to mention their ethically challenged boss, Prosecuting Attorney Dan Patterson. From Carol's motion:

Missouri Supreme Court Rule 25.04 C says, “if the state’s efforts [to disclose] are unsuccessful . . . said court, upon request, shall issue suitable subpoenas or orders to cause such material to be made available to the state for disclosure to the defense.” Shuler has made such a request.

Throughout his response to Shuler’s Motion for Disclosure Via Court Order or Subpoena, the state’s APA Nicholas Bergeon repeatedly says he is “unaware” that relevant and material disclosures exist for Shuler’s defense. The state essentially admits it has been unsuccessful at obtaining disclosures. Also, Bergeon conveniently omits the fact that Shuler filed a Motion to Compel almost a year ago, dated 5/30/17, and Judge Palmietto never ruled on it. In fact, Shuler filed multiple dispositive motions, and Palmietto let them sit for more than a year – yet, Bergeon claims he is weary of delays, laying them at Shuler’s feet. Bergeon wasn’t even involved in this case when the delays started.

You read that correctly: Bergeon claims he is weary of this case. (His motions re: discovery and a continuance to allow for discovery are embedded at the end of this post.) Yet, he and his colleagues repeatedly have ignored Carol's discovery requests altogether or claimed they are not "relevant" or "material." Almost all of Carol's requests go to these two issues: (1) Why was she arrested for an offense even the "victim" admits she did not commit? (2) What evidence will discovery yield about the utter lack of credibility among the officers who brutalized Carol and then made up a "crime" to hinder her chances at civil justice?

This is not a normal criminal case; it's one where cops committed a crime, and they are trying to cover it up -- with assistance from Nicholas Bergeon. From Carol's motion:

All of Shuler’s requests are relevant and material under the extraordinary nature of this case. Consider: (a) From the outset there has been no accuser in this case, no one with a name who claims in the Probable Cause Statement that Shuler “pushed” Officer Jeremy Lynn. This is sub-hearsay, and there is no corroboration or verification, as required in a hearsay case under State v. Kirby (Mo. Ct. of App., 2004). With no accuser and no corroboration, there never has been probable cause in this case – to arrest Shuler, much less prosecute her; (b) In in his incident report, “victim” Jeremy Lynn admits he grabbed Shuler first, not the other way around, meaning Lynn “knowingly caused physical contact” (the central element of the offense under statute). That means Shuler is not guilty, even in the words of the “victim”; (c) Two witnesses at the earlier suppression hearing – Jeremy Lynn and Officer Scott Harrison – admitted they either did not have or had never seen a court-authorized (with judge’s signature) writ of execution for the Shulers’ eviction. That means they had no grounds to be on the property, the search and seizure violated the Fourth Amendment, and all evidence derived from an unlawful/unreasonable search must be suppressed. Judge Palmietto found Lynn and Harrison acted “reasonably”; Lynn and Harrison admitted they did not act reasonably – they burst into a home, while knowing they had no lawful grounds for doing so; (d) The PC statement failed to mention that deputies broke Shuler’s left arm, so severely that it required trauma surgery. Incident reports indicate Officer Christian Conrad, wearing a blue shirt, broke Shuler’s arm. Multiple officers state in incident reports that they knew Shuler’s arm had been broken, but they claim to have acted “reasonably.” Criminal charges were brought against Shuler as a classic “cover charge” to hinder her efforts at civil justice and cover up police brutality. Such a gross omission means the PC Statement is defective and due to be stricken; (e) APA Bergeron claims with a straight face the state has not stonewalled on discovery. Over more than a year, Shuler has requested 30-40 disclosures – all relevant and material under the facts of this case – and she has received exactly two responses. If that’s not stonewalling, what is? If that kind of bad faith does not require the issuance of subpoenas, what does?

How desperate is Bergeon to avoid disclosing anything of substance via discovery? First, note how many times he claims something doesn't exist -- or he isn't "aware" that it exists -- and Carol is supposed to just take his word for it? Second, Bergeon claims (item 5) that Carol received a CD including CAD (computer-assisted dispatch) logs regarding our eviction, but the only CAD logs Carol has received are of a 911 call that Burrell Behavioral Health personnel made -- regarding a threat I never made, and a gun I never had. Third, consider just a few of the items Bergeon objects to disclosing because they are not "relevant"or "material":

Carol Shuler's broken arm, which Missouri cops
conveniently failed to mention in their
probable cause statement.
* All communications, in any format between the Greene County Sheriff's Office (GCSO) and the Prosecutor's Office related to our eviction;

* All communications, in any format, between Public Defender Patty Poe and her office and the GCSO, the prosecutor's office, and any judges;

* All reports about other citizens that GCSO personnel have left with broken limbs or serious injuries;

* The name of the GCSO attorney who gave the go-ahead for our unlawful eviction, per Officer Debi Wade, author of the Probable Cause Statement;

* Copies of all citizen complaints against officers involved in our eviction, going back three years. (Bergeon says the GCSO claims there aren't any. Do you believe that? Would anybody believe that?)

* Copies of CAD logs and recordings to all patrol units and officers involved in our eviction. (Bergeon claims he has provided this. But he's lying. He's provided only CAD logs of a 911 I never made.)

* The ID numbers, with assigned deputies, for each vehicle present at our eviction;

* All video or audio that was recorded from each vehicle on 9/9/15, the date of our eviction;

* Copies of all communications, in any format, between or among GCSO officers re: our eviction. (The state agreed at a motion to compel hearing last September to produce this information, but it never has done so.)

Bergeon likes to claim that Carol has not made a showing of "good cause" on her discovery requests. First, he cites no law that shows that is the standard for a defendant. But more importantly, Carol is charged with a crime she did not commit -- and the "victim" admits she didn't commit it -- so that (in my view) provides plenty of "good cause" on all of her discovery requests. You can double or triple that point when you consider that cops broke her arm and are trying to cover it up -- with ample assistance from Nicholas Bergeon and his crooked office.

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