Thursday, June 21, 2018

Here is the tip of a legal iceberg that shows Missouri thugs' efforts to "preclude" Carol's federal claims are due to fail, assuming an honest judge applies the law

Jerry Harmison Jr.
We have established that Missouri "law men"
brought a false assault of a law enforcement officer charge against my wife, Carol, so they could attempt to "preclude" her from bringing a federal lawsuit for excessive force, police brutality, and related claims. We've shown that Judge Jerry Harmison Jr., in essentially sentencing Carol this week to a $10 fine, apparently committed a legal blunder of epic proportions. Where might this tale of crookedness and corruption lead? Let's take a look:

Our justice system has become so diseased that cops, prosecutors, lawyers, and judges actually conspired to bring baseless criminal charges against Carol because thuggish deputies broke her arm during our unlawful eviction in September 2015. In other words, our experience shows that if cops brutalize you and break your bones -- causing you to land in the hospital for trauma surgery -- they are more likely to bring false criminal charges against you to avoid accountability for gross civil-rights violations.

The pattern goes something like this: Cops abuse a citizen physically (and we've seen that repeatedly across the country since the Michael Brown case in Ferguson, Missouri -- most recently with the abuse of NBA player Sterling Brown, who has filed a lawsuit in Milwaukee.); cops and prosecutors abuse the victim in state criminal court (and judges let them get away with it); then, they all try to cheat the victim in federal court.

As Muhammad Ali might have said, particularly when he was a young Cassius Clay: "The more they abuse you, the more they screw you."

Will it work in Carol's case? Not if a federal judge can be found who follows the law. But since when in postmodern America has a judge been known to follow the law -- in Alabama, Missouri, state, court, federal court?

As we showed in our previous post in this series, our federal claims (I have civil-rights claims, along with Carol) will be governed by preclusion law -- also known as res judicata or collateral estoppel -- at the state level. And Missouri preclusion law is not complicated.

Dozens of cases spell out the basics of preclusion law in Missouri, and we will borrow them from a case styled Stacy v. Massa (W.D., Missouri, 2013). From the Stacy opinion:

In Missouri, issue preclusion applies when:

(1) the issue in the present action is identical to the issue decided in the prior adjudication; (2) the prior adjudication resulted in judgment on the merits; (3) the party against whom issue preclusion is asserted was a party or is in privity with a party to the prior adjudication; and (4) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit.

Much is happening in Carol's case at the moment -- including an apparent attempt to cheat her that might blow up in the faces of midwest "law thugs," with possible comical consequences -- and we will go into details in upcoming posts. But we already can make a reasonable analysis on the four issues cited above in Massa:

(1) Will the issue in the criminal action be identical to that in the federal civil-rights action? No, not even close. The issue in the criminal case: Did Carol "knowingly cause, or attempt to cause, physical contact with Officer Jeremy Lynn?" We have not yet filed the federal case -- Missouri has a five-year statute of limitations -- so all of the claims have not been set. But the central issue will be this: Who broke Carol's arm, who caused that to happen via an unlawful eviction, and was the forcedused reasonable? None of those issues was decided in the criminal case.

(2) Did the prior adjudication result in a judgment on the merits? No.In fact, I'm not sure you could say it was adjudicated at all. Jerry Harmison Jr., the third judge assigned to the case (Becky Borthwick recused for unspecified reasons after two days), followed in the footsteps of his predecessor (Margaret Palmietto) and allowed the prosecution to get away with stonewalling on discovery. In essence, Carol was not allowed to gather evidence central to her defense, so it's hard to see how anyone could claim the case was decided on its merits. The prosecution's case had no merit, as we've shown repeatedly on this blog -- and we will show in upcoming posts. On top of that, it appears that one result of Judge Harmison's screw-up is that there is no final judgment at all in Carol's case, much less one based on the merits..

(3) Was the party against whom issue preclusion is asserted a party in the criminal matter? Carol was a party in the criminal matter, and she will be a party in the civil matter. I was not a party in the criminal matter, and I will be a party in the civil matter. So, the answer is no.

(4) Did Carol have a full and fair opportunity to litigate the issue in the prior case? This question is so ridiculous it almost makes me laugh. How can you have a "full and fair opportunity to litigate" when the prosecution is not forced to turn over discovery, and multiple motions to compel are ignored? I could write dozens of paragraphs on this question, but for now, we can narrow it down to one issue: Harmison was required by Missouri law to rehear Carol's Motion to Suppress Evidence, and that's because Palmietto's earlier denials were interlocutory and not conclusive or binding on future proceedings. [See State v. Pippenger, 741 S.W.2d 710 (Mo. App. W.D. 1987)]. Did Harmison fulfill his obligation to address suppression issues? Nope. He avoided them -- twice. If he had followed the law, and ruled according to law, there would have been no trial. So, the answer to our question is no, not even close.

We are just getting started in our analysis that shows the scheme to preclude Carol's federal claims is due to fail. Missouri state law. Eighth Circuit federal law, federal law from other circuits, and U.S. Supreme Court all show Carol's civil-rights claims are not precluded, as a matter of law. And we soon will show how the outlandish nature of Carol's sentencing could add significantly to Greene County's civil liability for its inability to police its police force.

(To be continued)

No comments: