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.











41 comments:

Anonymous said...

In a supposedly advanced country like the United States, it never should be a question whether a judge is going to rule correctly, according to the law. It should be a given that he will uphold the law, which he takes an oath to do.

Anonymous said...

It remains a mystery to me why so many people become lawyers, when it's obvious they have no interest in the law or justice.

legalschnauzer said...

I grew up with a brother who now is a lawyer. Not once while we were growing up did I hear him express an interest in the law. He got a business degree and a job in insurance with Aetna. He didn't like that and discovered he would be expected to move to Hartford, CT, at some point, and that's when he got interested in law school. Note that phrase: He got interested in law school; I still don't think he's interested in the law.

Anonymous said...

We're not an advanced country anymore. Too many stupid people, starting with the White House.

Anonymous said...

If this prosecutor, Mr. Bergeon, has such a strong case, why is he reluctant to turn over discovery?

Fester said...

The prosecutor doesn't want discovery because it would destroy his case. He knows he's got a fraud of a case, and facts will ruin it.

Anonymous said...

If we lived in an advanced country, people like Carol wouldn't have to worry about being beaten by cops, having their bones broken, and then having cops charge THEM with a crime.

Anonymous said...

Americans, if they aren't careful, are going to wake up one morning in a dreaful police state, and there will be no turning back.

Anonymous said...

Prosecutor sez: "This isn't material or relevant."

Translation: "If I turned over this information, it would destroy my case and cause justice to be done -- and we can't have that."

Anonymous said...

Carol faces the same problem many criminal defendants face. They are prosecuted by the state, but discovery material is not in the state' possession; it's with the police agency. In this instance, the police agency is corrupt, and they aren't going to turn over anything.

Bergeon is too big of a wimp to stand up to the cops, so he claims he's "not aware" of key evidence.

Anonymous said...

Prosecutor sez: "I'm not aware that discovery item exists."


Translation: "I know it exists, but I'd have to ask the cops for it, and they aren't going to give it to me, so I didn't bother to ask."

Anonymous said...

Bergeon probably finished last in his law-school class, and the best he could do is an entry-level position in a pissant DA's office.

Anonymous said...

Regardless of what Harmison does, you and Carol still can file a federal civil-rights claim -- and Carol's damages will only enhance if they leave her with a bogus criminal record. Plus, you can file a criminal case for deprivation of rights under color of law (18 USC 242), and that could send Arnott, Patterson, Jain, Bergeon, and maybe judges to prison for a long time.

Trump and Greitens are going down, so a conservative judges protection net is about to fall apart. These clowns will eventually regret the day they brought this sham of a case.

Anonymous said...

If Harmison wants to screw Carol over, maybe he and Greitens would look good together in the same prison cell.

Anonymous said...

Prosecutor doesn't want to turn over emails, texts, CAD logs/recordings re: the eviction? Nothing could be more relevant and material than that. His reluctance tells me that there is very damaging material in those items.

Anonymous said...

I'm intrigued that Bergeon doesn't want to touch anything involving Patty Poe or the Public Defender's Office. That's a key area of corruption in this case. Disclosures would reveal the PD Office is a sham, and they screwed Carol royally.

legalschnauzer said...

@10:45 --

You are right on point. The Public Defender's office in Missouri is a corrupt mess, and it probably sells people out all the time. They were working hand in glove with the prosecutor, sheriff, and Palmietto to cheat Carol. No doubt about it.

Anonymous said...

I'd like to see Ali Akbar, "Aaron Worthing", "The Other McCain," and some of those worthless National Bloggers Club slugs wind up in prison. They definitely were involved in throwing you in jail and stealing your house in Alabama, and they probably are involved in Carol's case.

Worthing is a completely psycho douche, and as you've reported, he's been communicating with your sorry-ass brother. Brett Kimberlin should have destroyed all of those sick SOBs, but he didn't handle his legal case right.

Would be nice to see Foster Friess in prison with them. Go Carol!

Anonymous said...

Bergeon is engaging in very clear bad faith. I've read his motion, and he says several times that he has turned over all this ordered. First, that's not true because the previous crooked judge did not rule on Carol's motion to compel. Second, to say, "I will only turn over material the judge orders" suggests he is not being forthcoming, and he is hiding exculpatory information.

Anonymous said...

Don't forget this from Brady v. Maryland:


"We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."


Bergeon has a duty to turn over favorable evidence to Carol -- not with a court order -- and he essentially admits he isn't doing it. Bergeon is violating Brady, so Carol will have straightforward and clear grounds for appeal.

Anonymous said...

Nicole Galloway, the state auditor of Missouri, is investigating corruption in Greene County, involving Arnott and others. You need to get in touch with her office. Galloway and Arnott are conducting a gross misuse of taxpayer funds, and Palmietto has helped it along, with the Public Defender's office.

Arnott might be going down, and it would be nice to see some of these crooked judges go with him.

legalschnauzer said...

More on the state auditor and Arnott. Thanks for sharing, @12:30 --


https://www.news-leader.com/story/news/local/ozarks/2018/01/09/greene-county-sheriff-demanded-names-whistleblowers-auditors-office-says/1015236001/

Anonymous said...

Didn't the prosecutors wait to the very last day under the one year SOL to bring this charge?

That tells me they know this wasn't a legitimate assault case.

legalschnauzer said...

Yes, @12:32, they filed it on the last possible day.

Anonymous said...

It looks like Aaron "Worthing" Walker no longer is blogging. I'm sure all of his three readers are highly disappointed.

Anonymous said...

Take care Mr. S. You are much braver than I. That's the whole problem...

Anonymous said...

Aboard the Eliza Battle John and Thomas Yancey asked Captain Marshall to read them a bedtime story. The Captain replied that he would read a passage of one of his favorites by Michael Meade "Why the World Doesn't End"
As the old woman shuffles across the floor and makes her way to the back of the ancient cave, a black dog watches her every move, The dog was there all along. Seemingly asleep, it awakens as soon as the old weaver turns her attention from one task to the other. As she begins stirring the soup in order to sustain the seeds, the black dog moves to where the weaving lies on the floor of the cave. The black dog picks up a loose thread with its teeth and begins pulling on it. As the black dog pulls on the loose thread, the beautiful garment begins to unravel. Since each thread has been woven to another, pulling upon one begins to undo them all. As the great stew is being stirred up, the elegant garment comes apart and becomes a chaotic mess on the floor.

Anonymous said...

In the spirit of Captain Marshall's bed time story, a universal metaphor:
"I cannot forecast to you the action of Russia (Harmison). It is a riddle, wrapped in a mystery, inside an enigma; but perhaps there is a key. That key is Russian national (Harmison's) interest."
--Winston Churchill

Anonymous said...

A little walk down memory lane -- https://legalschnauzer.blogspot.com/2017/09/former-prosecutors-in-st-louis-face.html

Didn't Palmietto--early in her tenure on Carol's case--publicly threaten an investigation into Arnott's operation?

legalschnauzer said...

@11:20 --

Thanks for sharing that link to the STL story of prosecutors being disciplined for covering up police abuse. Very important story, we probably will be going through the same process with prosecutors Nicholas Jain and Nicholas Bergeon in Carol's case. Their discovery abuse is disgraceful.

I don't recall any such statement from Palmietto. You might be thinking of Nichole Galloway, the Missouri State Auditor, who is investigating Arnott already, and we will be getting in touch with her -- both about Arnott and Greene County PA Dan Patterson.

Anonymous said...

LS: Nope. It was definitely Palmietto and it was your first or second appearance in front of her--I was too busy to go all the way back in your posts to find it (which I will do ASAP). My guess is that it was, firstly, a CYA opportunity for Palmietto to look like she wasn't going to put up with any crap from Arnott (complete BS as we now know), and, and, secondly, as a signal to who was in charge of this travesty and it was her (true as we now know).

legalschnauzer said...

Hmmm . . . I don't know. All I can say is neither Carol nor I remember any statement like that from Palmietto. We never saw any signs that she is made of that kind of tough stuff. In fact, I don't recall Arnott's name ever being mentioned in any hearing, and I was at all of them.

Anonymous said...

Here you go... https://legalschnauzer.blogspot.com/2017/10/missouri-judge-orders-prosecution-to.html

Anonymous said...

Aboard the Eliza Battle the graveyard watch observed two warships rendezvous. Admiral Tyron was summoned to identify the ships. Bob Yancey remarked that one was the Hibernia and the other appeared to be the Pueblo. Admiral Tyron replied that it was too small to be the cruiser Pueblo. It has to be the smaller frigate CSS Virginia. Captain Marshall appeared on deck and said, " Wouldn't you like to be a fly on the wall listening to their conversation," Later that morning at Miss Willie's house the oatmeal Miss Willie was preparing for Minda's breakfast had drawn the attention of the crosseyed thoroughbred, which with the portrait around his neck, thrust his head through the open window. Miss Willie screamed,"Minda! Someone has stolen the crimson tide championship football, with the Victoria's war plans encased, right from under your brother's nose." Minda replied that she was weary of this war and was going shopping in Savannah Ga.

Anonymous said...

And another walk down memory lane when you first met Ms. Poe... https://legalschnauzer.blogspot.com/2017/05/patricia-lillian-poe-public-defender-we.html

legalschnauzer said...

@9:31 --

I see what you are talking about now. I think we have our terms mixed up. That was about Carol's discovery request to have disclosure of any citizen complaints against officers involved in our eviction. Palmietto granted the request for complaints, going back three years, and the state claimed there were no such complaints -- which almost certainly is a lie.

So we're talking about two different things -- in essence, Carol asked to have documents turned over, and Palmietto granted that request in a limited way -- over three years, not all such complaints. But Palmietto did not threaten to investigate Arnott's crooked operation, and the judge folded like a cheap tent when the prosecution lied and said there were no such complaints.

If anyone was trying to investigate, it was Carol, not Palmietto.

legalschnauzer said...

Eliza B --

Could I speak with you via phone in the next few days? I think we might have spoken once before, but I'm not sure about that.

Anyway, something happened in Carol's case recently, and I think you will find it fascinating. It's something I haven't written about.

Anonymous said...

--So we're talking about two different things. I think we have our terms mixed up.-- No, LS, we were both describing the same thing differently. My comment was not trying to give Palmietto any credit, but to point out that, as with most of the Tribe members, she's ultimately a hypocrite.

legalschnauzer said...

Yes, she absolutely is hypocrite. Before stepping down, she hinted that Carol's case had gone on too long, so it needed to go to trial -- even though the suppression hearing showed the eviction/search/seizure was unlawful, and even though the prosecution had been stonewalling on discovery.

The new judge, Harmison, said something similar the other day -- that this case had hung around too long. Well, that's not Carol's fault. She filed dispositive motions in March 2017, and Palmietto could have heard them and lawfully dismissed the case last April -- more than a year ago. But Palmietto steadfastly refused to hear Carol's motion, and forced Carol to deal with Public Defender Patty Poe, which wasted 5-6 months of our time.

These people have been kicking the can down the road for months, now they want to hurry things along and trample Carol's constitutional rights in the process.

Yes, the case has dragged on, but not because of Carol.

Anonymous said...

As I said several posts back, LS, the only "arrow" left in the Tribe's quiver is time. Your quiver is full. Temper your anger and you will prevail.

e.a.f. said...

it is truly amazing to me that this case is still on going and still being pursued. this is the type of case which would not have been a case in British Columbia, Canada. The American legal system is a tad out of wack.

It is reasonable to conclude there is more to this than the charges. Reads like a political/legal persecution to me.