Wednesday, June 20, 2018

Missouri "law thugs" left Carol with a bogus criminal conviction to "preclude" her federal civil claims, but they might have only shot themselves in the foot

Judge Jerry A. Harmison Jr.

Why did Missouri "law men" bring a bogus assault of a law enforcement officer charge against my wife, Carol, when even their own "victim" admits in an incident report (and under oath in court) that she committed no such offense? The answer can be summed up in one word: preclusion.

We will define preclusion more fully in a moment, but in essence, it means that a criminal conviction in one court can "preclude" a federal civil-rights claim in another court. The record shows that the whole "assault" charge was brought some 20 months ago in order to save Greene County and its corrupt sheriff's department from being held accountable for brutalizing Carol and breaking her arm during an unlawful eviction in September 2015.

But here is the enormous kicker (it's going to require several posts to explain and could induce a number of guffaws): The Missouri law thugs might have succeeded only in shooting themselves in the proverbial foot, while leaving Carol with no punishment and no judgment at all.

No kidding. (Please follow us for this post and followups over the next several days, into early next weeks, as we try to explain what appears to be a courtroom version of what happened when the Titanic  collided with an iceberg. The happy news is that it looks like Carol will not be one of the victims in this calamity -- other than having her reputation smeared and dealing with baseless criminal charges for 20 months. But for now, she seems to be snuggled in a rescue boat as some evil SOBs are about to slide into freezing water that might suck away their life forces -- or at least we can hope that's what happens to them.)

This all hits home now because yesterday Carol was sentenced for a "crime" that Judge Jerry Harmison's own judgment shows -- in multiple places -- she did not commit. Carol filed six post-judgment motions, showing that Harmison is a judicial buffoon who got just about everything in the case wrong. But like a lot of judges, Harmison is too arrogant, stupid, or crooked (maybe all three) to correct himself. So he dismissed Carol's motions out of hand, upheld her guilty verdict, and sentenced her to -- get this -- what amounts to a $10 fine. 

(They really think she assaulted a cop, but her punishment essentially is a $10 fine? We'll get back to that question in future posts.)

But here is the delicious part: In acting like a smug, corrupt smart-ass, Harmison might have let Carol off the hook entirely, while leaving the Greene County legal machinery with a significant mess to clean up -- and it could be costly. [A notation about Harmison's findings yesterday can be found at (State v. Carol Shuler, No. 1631-CR07731), and we will explain its implications in upcoming posts. For now, we will focus on preclusion -- while saying it appears Harmison screwed up big time, or in a rare show of integrity, he intentionally let Carol off the hook. I think that last possibility is extremely unlikely.)

Now, back to the preclusion issue? How stupid were the Missouri thugs to bring bogus criminal charges in order to impede Carol's efforts to achieve civil justice? The answer requires two words: very stupid (and that was before Harmison's antics of yesterday). That's because the law on preclusion -- we'll call it "The P Word" -- does not accomplish what the thugs thought it would. That means they wasted their time and ours, while significantly enhancing their potential liability in a federal civil-rights lawsuit that Carol and I will file shortly.

Preclusion essentially means that, under certain circumstances, an issue that has been raised and litigated in one forum cannot be re-litigated in another -- in a case involving the same parties. For example, an issue litigated in a state criminal proceeding might not be raised in a subsequent federal civil proceeding.

Prof. Sheldon H. Nahmod
"The P Word" is driven by two complex and confusing legal doctrines -- res judicata and collateral estoppel. Sheldon H. Nahmod, a professor at Chicago-Kent College of Law at Illinois Institute of Technology, explains the issue in a blog post titled "A Section 1983 Primer (6): Claim and Issue Preclusion." Many federal civil-rights claims are brought under 42 U.S. Code 1983. Prof. Nahmod explains preclusion and its possible impact on such claims:

This post addresses the important practical topic of claim preclusion (res judicata, which concerns claims that were or could have been raised), and issue preclusion (collateral estoppel, which concerns issues that were raised and adjudicated) in section 1983 cases. Preclusion concerns arise in section 1983 federal court litigation when there is a prior final state judicial or administrative proceeding that involved the same parties (or their privies) and implicated (or could have implicated) the same issues.

To what extent may those claims or issues be relitigated in a subsequent section 1983 federal court proceeding? As it turns out, the answer in each case depends, as a matter of federal law, on the forum state’s preclusion law.

That means we need to examine Missouri's preclusion law to determine its possible impact on our civil-rights claims that will be raised in Missouri federal court. For now, we learn two things:

(1) Missouri preclusion law involves qualifiers that "law man" thugs in Carol's case likely have not considered;

(2) When we go beneath the surface to research the relevant law in some detail, we find that Carol's federal claims will not be precluded at all. And that does not even include my civil-rights claims, which are significant -- even though I was not wrongfully arrested and brutalized the way Carol was.

Bottom line: Missouri thugs brought a bogus criminal charge against Carol in an effort to "preclude" her federal claims arising from excessive force and a severely broken arm that required trauma surgery. We've called the assault claim a "cover charge" because that's exactly what it is -- an effort to abuse the criminal-court process to cover up police misconduct and ensure no one is held accountable for the abuse heaped on Carol and me.

Unfortunately for the thugs, they are relying on law that does not work the way they think it does. Even more unfortunate for them, Judge Harmison appears to have messed up by mistakenly letting Carol off the hook altogether, perhaps enhancing the civil liability that Greene County is trying so hard to avoid. 

We've shown over and over on this blog that corrupt cops, lawyers, prosecutors, and judges aren't too smart. This is another example of a "justice system" that is infested with individuals who have little or no integrity and even fewer functioning brain cells. In this instance, it appears they've created a courtroom train wreck that could correctly be described as comical -- if it didn't involve such serious issues, if it had not caused Carol's reputation to be smeared for months. 

As an example, consider this question: In the highlighted section above (shaded in green), preclusion is described as being limited to final state judgments or administrative proceedings. But what if there is no final state judgment? Hmmm . . . 

(To be continued)

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