Monday, January 7, 2019

Under a U.S. Supreme Court case called Alabama v. Shelton, Carol's sentence of probation in Missouri "assault" case is invalid and due to be reversed


Ruth Bader Ginsburg
The suspended sentence that a Missouri judge placed on my wife, Carol, in a bogus "assault of a law enforcement officer" case is "invalid" and a "nullity," and it must be reversed,  according to U.S. Supreme Court (SCOTUS) precedent.

We already have shown that, by placing a suspended imposition of sentence (SIS) on Carol, Judge Jerry Harmison Jr. ensured there is no final, appealable judgment in the case and no conviction (even though Carol, contrary to fact and law, was found guilty). Now, we learn that the SIS and two-year probation Harmison imposed are unlawful and due to be vacated.

How many ways can one compromised judge screw up a case?

This all goes back to Missouri's denial of Carol's right to counsel, and the relevant law comes from the nation's highest court in a case styled Alabama v. Shelton, 535 U.S. 654 (2002). How rich is the irony that the cheat job heaped on Carol in Missouri would be -- or should be -- decided by a SCOTUS case that originated in Alabama?

Justice Ruth Bader Ginsburg (with dissents from -- surprise, surprise -- Antonin Scalia, Clarence Thomas, William Rehnquist, and Anthony Kennedy) wrote the opinion in Shelton. Here is it's central holding:

Held: A suspended sentence that may "end up in the actual deprivation of a person's liberty" may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged. Argersinger, 407 U. S., at 40. Pp. 660-674.

What does this mean for Carol's case?

(1) She was placed on probation, but a violation of its terms could lead to a jail term. That, SCOTUS found in its 2002 Shelton ruling, is not allowed under the Sixth Amendment;

(2) Carol at one point had an attorney -- public defender Patty Poe -- but when Poe bailed out of the case, jail was waived as a possible punishment, by law;

(3) Carol never had another attorney, and she never waived her right to counsel, so Harmison committed a huge blunder by adding probation to the equation -- and probation, by definition, means jail is on the table. And that, Justice Ginsburg found, is a no-no.

(4) Both Poe and Margaret Palmietto (the original judge in Carol's case) apparently have more functioning brain cells than Harmison, who took over after Palmietto recused -- or maybe Poe and Palmietto are slightly less corrupt than Harmison. Either way, Poe told us upon exiting that, with jail off the table, the court could only sentence Carol to a fine, community service, or some type of educational course. Palmietto, in her final days on the case, said multiple times in open court "it's just a fine" -- as if Carol should have no problem being fined for an offense she did not commit, even according to the written and verbal statements of the so-called "victim."

Carol Tovich Shuler
Where does the SCOTUS case have its roots? The answer is Etowah County, Alabama, (county seat is Gadsden), where LeReed Shelton represented himself and twice was found guilty of third-degree assault -- being sentenced to a suspended 30-day jail term and unsupervised probation. Shelton appealed, and the Alabama Supreme Court ultimately reversed his sentence, finding it invalid because he did not have counsel, violating his Sixth Amendment rights.

SCOTUS upheld the Alabama Supreme Court's finding, with these words from Ginsburg:

Defendant-respondent Shelton represented himself in an Alabama Circuit Court criminal trial. The court repeatedly warned Shelton about the problems self-representation entailed, but at no time offered him assistance of counsel at state expense. He was convicted of misdemeanor assault and sentenced to a 30-day jail term, which the trial court immediately suspended, placing Shelton on two years' unsupervised probation. The Alabama Supreme Court reversed Shelton's suspended jail sentence, reasoning that this Court's decisions in Argersinger v. Hamlin, 407 U. S. 25, and Scott v. Illinois, 440 U. S. 367, require provision of counsel in any petty offense, misdemeanor, or felony prosecution, Argersinger, 407 U. S., at 37, "that actually leads to imprisonment even for a brief period," id., at 33. The State Supreme Court concluded, inter alia, that because a defendant may not be imprisoned absent provision of counsel, Shelton's suspended sentence could never be activated and was therefore invalid. . . .

The Sixth Amendment does not permit activation of a suspended sentence upon an indigent defendant's violation of the terms of his probation where the State did not provide him counsel during the prosecution of the offense for which he is imprisoned. A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense. The uncounseled conviction at that point "result[s] in imprisonment," Nichols v. United States, 511 U. S. 738, 746; it "end[s] up in the actual deprivation of a person's liberty," Argersinger, 407 U. S., at 40. This is precisely what the Sixth Amendment, as interpreted in Argersinger and Scott, does not allow.

Carol was the victim of an uncounseled (and unlawful) conviction, and SCOTUS makes clear that her sentence must be reversed as invalid. Whether the dictates of the nation's highest court has any impact on Jerry Harmison Jr. -- or anyone else in Missouri's perverse "justice system" -- remains to be seen. But it's clear Carol's sentence is a nullity, meaning it is legally void and is based on . . . well, nothing.

12 comments:

Anonymous said...

This judge must have gone to a law school that doesn't bother to teach the Sixth Amendment.

Anonymous said...

The lesson here seems pretty simple: You can't be subject to incarceration without having counsel at trial. A "judge" who doesn't know that shouldn't be on the bench.

legalschnauzer said...

@12:44 --

Harmison is a bad judge, but I don't think he's stupid. I'm pretty sure he's knows about this kind of bedrock constitutional law. His problem is being ethically compromised, not being criminally stupid -- although is actions might very well be criminal.

Anonymous said...

The Notorious RBG. She rocks!

Anonymous said...

Alabama v. Shelton is another example of right-wing judges on our highest court trying to squash fundamental constitutional rights. The public had better pay attention.

Anonymous said...

I believe you said Harmison was appointed by Missouri's crooked "Navy SEAL governor," Eric Greitens. Pretty clear Greitens doesn't believe in the rule of law, so Harmison probably doesn't either. He just ignores constitutional rights that he doesn't like.

Anonymous said...

Notice the dissenters in Alabama v. Shelton -- Scalia, Thomas, Rehnquist, etc.

Anyone surprised?

Jingle said...

Kavanaugh and Gorsuch, if they get the chance, will do their best to overturn Alabama v. Shelton.

Anonymous said...

Do. You. Have. Any. Idea. How. Crazy. You. Are. ?

legalschnauzer said...

@4:36 --

No, but I know how crazy you are. And I know exactly WHO you are, with your ties to Virginia, Ali Akbar, Stacy McCain, "David" Shuler, Hogewash, and the Alabama State Bar. Did you know folks call you "Gladys Kravitz"? They do, and the name fits.

I also know why you are stewing in your own miserable juices, and why you and your comrades soon will be stewing big time.

Always fun to hear from a certified loon. Brett showed me your papers.

Anonymous said...

But don't take just my word for it. Here's a fun fact for you -- there is an actual psychology professor at a respectable state university who has cited your blog as source material for a research project on personality disorders. I'm serious. The gist of the project is to learn to differentiate different personality disorders. I'm guessing the options for you include paranoid, grandiose, narcissistic. I'll contribute $1,000 to your gofundme if you can identify the professor by the end of this month. (notice how generous I am with time?)

legalschnauzer said...

@5;15 --

Hah, what a hoot. I'm not interested in guessing about your professor, so why don't you save yourself some money and send me a link to his or her work about Legal Schnauzer.