Wednesday, November 22, 2017

Both Judge Margaret Palmietto and public defender Patty Poe show an utter lack of class and grace, as Poe rushes out the door to withdraw from Carol's case


Patricia Poe
A Missouri judge this morning approved public defender Patty Poe's motion to withdraw from Carol's "assault case." The good news is that we won't have to deal anymore with Poe -- and her tendency to blow smoke up our rear ends. The bad news is . . . well, I'm not sure there is any bad news. Carol will have to find a private attorney or represent herself, but either option is preferable to being represented by a public defender who would have to improve significantly to be worthless.

Poe was in such a hurry to get away that she scrambled out of the courtroom before Carol's hearing even was finished. Perhaps she wanted to make sure she had no conversation with Carol or me. If so, her quick exit probably was a good idea. I doubt Poe wanted to hear what I think of her, and I really don't think she's worth putting forth the effort to tell her she's a louse -- a louse who lies, a lot.

In a little more than five months of "representing" Carol, Patty Poe accomplished one thing: She got the trespass charge against Carol dismissed. But Carol already had filed a pro se motion that would have accomplished the same thing if Judge Margaret Holden Palmietto had bothered to read it. In the end, Poe wasted five months of our time, on a case that, by law, should have been dismissed back in May or June.

Speaking of Palmietto, the whole public defender fiasco largely was her fault. At a hearing in May, Palmietto essentially forced Carol to fill out an application with the public defender's office, saying Carol would not be allowed to leave the courtroom until the application was finished.

On that day, Palmietto made it clear she knew about Carol's pro se motions -- I think five had been filed, three of them within a few days of that hearing date. In fact, Palmietto said she was not going to read Carol's motions until she had an attorney or waived her right to an attorney. Well, Carol had an attorney for more than five months, and Palmietto still has not heard, or ruled on, any of her motions -- most of which would have kicked out the prosecution's case, as a matter of law.

That Palmietto said she would hear Carol's motions, and then didn't, raises questions about her integrity -- at least with me. In terms of basic courtesy, Palmietto could have said something this morning like, "Mrs. Shuler, I'm the one who sent you to the public defender, so I'm sorry this didn't work out and it has wasted a lot of your time." Better yet, Palmietto could have directed a glare at Poe and said, "Ms. Poe, I sent Mrs. Shuler to you, with the expectation that your office would fulfill it's duty to provide a competent defense. So why are you seeking to withdraw now? What's the problem?"

Palmietto said nothing of the sort. I couldn't tell that she questioned Poe about anything. Poe, on the surface, is withdrawing because Prosecutor Nicholas Jain filed a Notice of Jail Waiver of Jail Time, and Missouri law states as follows (RSMo 600.042. 4(2)):

4. The director and defenders shall provide legal services to an eligible person:

(2) Who is detained or charged with a misdemeanor which will probably result in confinement in the county jail upon conviction, including appeals from a conviction in such a case, unless the prosecuting or circuit attorney has waived a jail sentence;

That seems like a nifty way for a prosecutor and a public defender to conspire to deprive an eligible person of her right to counsel. I'm not sure how that is constitutional, but it probably stands because no one has thought to challenge it. (Poe's Motion to Withdraw and Jain's Notice of Jail Waiver are embedded at the end of this post.)

The dubious nature of that Missouri statute is one reason it's disturbing that Palmietto seemed to approve Poe's motion with a wave of the hand -- without asking a few hard questions. We're only talking about the right to counsel here.

Speaking of the prosecutor, Jain was not present this morning, and we hear he is planning to run for prosecuting attorney in some Missouri county. Hopefully, it's one where the citizens are smart enough to pick someone -- anyone -- other than Jain. I've met billy goats who have more legal talent and integrity than this guy. When I heard of his plans, I could not suppress a guffaw. Not sure I've encountered anyone who has a more inflated assessment of his own abilities than Nicholas Jain.

I'm holding out some hope still for Palmietto -- she has made two or three rulings that actually were correct, under the law -- but she receives a failing grade from me today. This clearly is a case of Poe and Jain colluding to leave Carol without legal representation, and a judge should have enough curiosity to want to get to the bottom of it. The real reason for Poe's withdrawal, in my estimation, is that Carol was not buying her shuck and jive routine. Carol knew Poe repeatedly had made false statements regarding relevant law in the case, and Carol made it clear she wasn't buying Poe's BS. That likely made Poe uncomfortable -- and it might have made her boss uncomfortable, too -- so they bailed out.

In fairness to Palmietto, this was your standard "cattle call" court day, with little time to consider the niceties of any case. But at the very least, Palmietto should have asked Carol, "Mrs. Shuler, why is Ms. Poe withdrawing from this case -- in your view -- and how do you feel about that?" Carol's answer likely would have shined considerable light on the sorry representation she's received.

Given that Poe is a lawyer, this comes as no surprise, but her exit this morning was utterly without class. Carol and Poe were sitting shoulder to shoulder before the judge, and Carol said Poe didn't speak a word to her -- and I didn't notice Poe even glance at Carol. In fact, Carol was speaking to the judge when Poe turned and rushed out of the courtroom. I'm not sure Palmietto had even officially granted her motion yet. Unprofessional? To the max.

Poe has said multiple times that she is convinced Carol is not guilty -- "You don't look like the kind of person who would assault a police officer" -- and admitted the cops' story that Carol broke her own arm by flailing about in the back seat of a patrol car was pure rubbish. You'd think as a small sign of human decency, Poe might have said something like, "Good luck, Carol; I know you're going to have a good outcome with this case, and I'm sorry you've been put through this."

But that apparently is too much to expect of Patty Poe. Instead, she rushed out of the courtroom before the hearing was over, without a word to her "client" -- showing not the slightest concern about issues of justice. Why not give Carol a word of encouragement, especially when Poe knows Carol is innocent, probably one of the few truly innocent people to come through that courtroom -- and Poe knows cops abused Carol to the point that they practically ripped her left arm apart at the elbow?

From my seat, it appeared Poe was too busy covering her own ample ass to worry about Carol. I'm not sure Poe is even 30 years old, but she's already proven to be a heartless, graceless sellout for the legal tribe. She deserves to have her bar card stripped, and I wouldn't mind helping to make that happen.

What a worthless piece of excrement, and my feelings about her exit from Carol's case can be summed up in two words -- good riddance.

If Carol can find a private attorney we can afford, and is worthy of our trust, that would be great. But if Carol has to represent herself, I have no doubt she would do a better job than Patty Poe and Her Traveling Clown Show.








Ashley Madison customers revealed: Todd Wiesehan, key administrator and planner for Missouri's fastest-growing county, appears at cheaters' Web site


Todd and Paula Wiesehan
(From facebook.com)
The director of resource management for Missouri's fastest growing county appears on the list of paying customers for the Ashley Madison extramarital-affairs Web site.

Todd Wiesehan was promoted in June 2017 to director of the Christian County Resource Management Department. Before that, he served for six years as the Christian County Planning Department Administrator. On his LinkedIn page, here is how Wiesehan describes that job:

I am a Planner and serve as the Planning and Zoning Department Administrator for the unincorporated portion of Christian County Missouri. My mission is to lead my department with an eye toward guided and organized development which is in line with the vision set forth in our comprehensive plan. I supervise a staff of five and work closely with our County Commission as well as our appointed Planning and Zoning Commission and Board of Adjustment. I also serve as the County's representative on numerous local and regional planning organizations.

That is a challenging task because Christian County is to southwest Missouri what Shelby County is to north central Alabama. It is filled with bedroom communities, such as Ozark and Nixa, which are burgeoning with each census period. From the Christian County Assessor's Web page:

The county had a population of 54,285 in 2000 census. According to the 2010 census, the county's population is 77,422 (a 42.6 percentage increase from 2000 census), making it the fastest growing county in Missouri and one of the fastest growing in the nation as the county becomes more suburban as growth continues in Springfield. Its county seat is Ozark. The county was organized in 1859 and is named after William Christian, a Kentucky soldier of the American Revolutionary War.

Christian County is part of the Springfield Metropolitan Statistical Area.

According to Wiesehan's Facebook page, he is studying homeland security at Missouri State University. He is married to Paula Wiesehan, who works as a nurse practitioner at Burrell Behavioral Health. According to her Facebook page, she studied psychiatric mental-health nursing at the University of Kansas.

Based on their Facebook pages, the couple has one child, a daughter who is into softball. The Wiesehans live at 3433 E. Blueridge St. in Springfield, MO, in a house with an appraised value of $228,800.

When asked for comment, Todd Wiesehan replied as follows:

I understand that you are going to publish whatever you deem appropriate for your story. For my part, all I can say is that, between the end of my first marriage and prior to meeting my current wife, I explored several typical dating websites, and out of curiosity (and perhaps hurt/anger), looked into this one. I’m sure this sounds naive, but as a recent victim of infidelity myself at that moment in my life, it was worth a few bucks just to see if what this site was advertising could even be real and that so many people were doing what was done to me. I never met or communicated with anyone as a result of giving the site my information and creating a profile. I basically concluded that it was mainly a creepy scam and moved on, somewhat encouraged that I could trust again.

I have never cheated on my past or present spouse or with another married person during that period when I was single – and I never will. Again, I do understand the intent of your series of articles and I do regret the mistake of ever clicking on that popup ad. Beyond that, I have no guilt or apology to make to my wife or anyone else in relation to that website.


Previously:

Article with links to 1-40 in Ashley Madison series

(41) David Armistead, director of enterprise sales, TekLinks, Birmingham (10/19/17)

(42) William House, VP and controller, HealthSouth, Birmingham (10/26/17)

(43) Olin B. Barnes III, VP, One Resource Group, Birmingham (11/1/17)

(44) T.J. Bunn Jr., ST Bunn Construction, Tuscaloosa (11/2/17)

(45) Todd Deffenbaugh, VP and controller, Express Oil Change, Birmingham (11/6/17)

(46) Richard D. Crites, lawyer and reserve deputy, Springfield, MO (11/13/17)

(47) Mark C. Trudeau, CEO, Mallinckrodt Pharmaceuticals, St. Louis, MO (11/15/17)

(48) Peter Blasi, lawyer, Evans Blasi, St. Louis, MO (11/16/17)

Tuesday, November 21, 2017

Missouri public defender Patty Poe likely will bail on Carol's case tomorrow, but her exit comes only after she's blown plumes of smoke about relevant law


Patty Poe
(From facebook.com)
Before seeking to withdraw from my wife, Carol's, "assault" case in Missouri, public defender Patty Poe had been blowing smoke up our fannies for months about relevant law in the matter. Poe's Motion for Leave to Withdraw and prosecutor Nicholas Jain's Notice of Jail Waiver will be heard on Wednesday (11/22) at the Greene County Courthouse.

We assume Judge Margaret Holden Palmietto will approve both documents, and we look forward to seeing Poe in the rear-view mirror. It might not, however, be the last she hears from us. The string of lies she told us should be subject to review by the Missouri State Bar, assuming this state has some requirement that lawyers deal with their own clients honestly. Also, more than one reader with experience in the "justice system" has noted that Poe could be called as a witness -- or be deposed -- in any criminal or civil proceeding that is down the road.

Carol and I certainly would like to see Poe forced to answer certain questions under oath. A big question: Who encouraged her to blow copious amounts of smoke up our fannies, and why did she do it? Did she ever take a course on legal ethics at the University of Missouri School of Law -- or did she sleep through that one, as my brother (David Shuler) apparently did 20-some years earlier?

Let's examine two of Poe's biggest whoppers -- and these involve basic matters in Carol's case. If you ever find your own lawyer lying to your face about such fundamental issues, you should know it's time to look for a new lawyer. Here are two key issues: (1) Was the eviction carried out lawfully? (2) Did prosecutors turn over discovery, as required? We'll zoom in for a closer look:

(1) Did deputies have lawful grounds to even be on our rented property?

We have written sporadically about various issues that made the eviction itself unlawful. Just yesterday, we wrote about four more grounds that made the eviction unlawful -- bringing the total to 10. We submitted that it might have been the most screwed up eviction in history; it literally was screwed up 10 ways to Sunday -- and it's possible we haven't caught all the screw-ups yet; I wouldn't be surprised to see the list grow to 12-13 before it's over. (The 10 grounds by which the eviction was unlawful are embedded at the end of this post.)

The "10 Grounds" document includes 19 links to law or evidence that shows deputies had no lawful grounds to be on our rented property -- much less inside our home -- and landlord Trent Cowherd and his lawyer (Craig Lowther) had no grounds to seek our eviction. (We have one piece of evidence that has not been scanned, and when it's in a digital format, will create a 20th link.)

Why do these grounds matter? That question perhaps is best answered by turning to Mapp v. Ohio, one of the seminal U.S. Supreme Court cases from the second half of the 20th Century. Here is the introduction to Mapp:

Appellant [Mapp] stands convicted of knowingly having had in her possession and under her control certain lewd and lascivious books, pictures, and photographs in violation of . . . of Ohio's Revised Code.As officially stated in the syllabus to its opinion, the Supreme Court of Ohio found that her conviction was valid though "based primarily upon the introduction in evidence of lewd and lascivious books and pictures unlawfully seized during an unlawful search of defendant's home . . . ."

As noted by the highlighted words above, Mapp was about material that police "unlawfully" seized during an "unlawful" search. Hence, the importance of our "10 grounds" document embedded below, outlining 10 ways our eviction was unlawful.

At the time of Mapp, the legal doctrine that excluded evidence obtained via an unlawful search or seizure, violative of the Fourth Amendment, applied only to federal cases. The Mapp ruling extended the so-called "exclusionary rule" to state cases and threw out the unlawfully obtained evidence against Mapp.

That means any evidence obtained against Carol, such as the Probable Cause Statement where an unnamed individual advised that Carol had pushed Officer Jeremy Lynn  (although Lynn's own words show he caused physical contact with her), must be excluded by law, as a violation of the Fourth Amendment. That leaves the prosecution with no case.


(2) What about discovery?

No progress has been made on this issue, and Poe made it clear (before seeking to withdraw) that she had no intention of trying to make progress.

The issue should not be controversial. At a hearing on Sept. 20, the sides agreed the prosecution would turn over the following:

(a) Various forms of media related to our eviction, including CAD logs and recordings (computer aided dispatch), 911 calls, dash camera recordings, and photos;

(b) Copies of all communications between or among sheriff's office personnel regarding the Sept. 9, 2015, eviction;

(c) Notes for reports from deputy Scott Harrison regarding Carol's injuries, which included a shattered left arm requiring trauma surgery;

(d) Statements of any officer present at the scene for the eviction;

(e) Citizen complaints or allegations of excessive violence against any officers on the scene from the past five years.


Item No. e was ordered produced by the court. Prosecutor Nicholas Jain had agreed that he would produce items a-d. In an e-mail, Poe asked for a copy of the Greene County Sheriff's Office (GCSO) Policies and Procedures Manual, and Jain indicated he would produce that only via a court order -- although one has not been filed. This is the same manual that had been available online to anyone in the world with an Internet connection, but it disappeared not long after it became clear cops had broken Carol's arm.

We scheduled a meeting with Poe on Oct. 30, mainly to learn about any progress on discovery -- and to press her on numerous dubious statements she had made about relevant law in Carol's case.

As for discovery, we learned zero progress had been made. Poe informed us that the prosecution claimed it did not have copies of any citizen complaints made against officers involved in our eviction -- and the prosecution apparently also claimed it had no relevant media and no communications (emails, texts, etc.)  When asked what she intended to do to make sure the discovery was produced, Poe said she would do nothing. "I can't prove that they don't have it," she said.

Let that sink in for a moment: The GCSO has a special page on its Web site for citizens to file complaints, but we are to believe none have been filed against the 6-8 officers present for our eviction? We're supposed to believe there were no CAD logs, dash-cam recordings or any other form of media -- not to mention no communications between or among officers, in any format (digital or analog)? Perhaps Poe noticed the looks on our faces that probably seemed to say, "You expect us to believe this heaping helping of cow feces?"

So what discovery do we have? We have photos that Deputy Harrison took of Carol's injuries, and a copy of a 911 call, which I supposedly made, but we now know came from an employee at Burrell Behavioral Health. And we've had those two items for months, even before Poe filed a Motion to Compel, if my memory is correct.

Poe also mentioned photos that cops had taken of the back seat of the patrol car where Carol was placed after they had broken her arm. We assume this includes a photo of the safety harness that restrained Carol's movement (not to mention her handcuffs) and would have made it impossible for her to break her own arm by flailing around in the back seat, as officers had suggested. But that's it for discovery -- photos of Carol's injuries, the 911 call from Burrell, photos of a patrol car's back seat.

Under Patty Poe's "I can't prove they don't have it" standard, no one ever would turn over discovery. I don't pretend to be an expert on all the steps a lawyer can take in response to such stonewalling, but I'm pretty sure they include seeking a court order or subpoena, asking to have the stonewaller held in contempt of court, asking to have the charges dismissed for failure to obey court orders and discovery rules.

These are just two of many examples where Poe has blown plumes of smoke up our fannies. It's a wonder the local fire marshal hasn't responded to our residence.

You can see why we will be glad to see Poe in the rear-view mirror, although she might have cause to deal with us in the future -- and it might come with her bar card, or even her freedom, on the line.


(To be continued)






Monday, November 20, 2017

We've discovered four more grounds upon which our eviction was unlawful, bringing the total to 10 and making it perhaps the most screwed up eviction ever


(From haikudeck.com)
Has an eviction in U.S. history ever been as screwed up (and unlawful) as the one in Missouri that ended with cops shattering my wife's left arm -- and with bogus criminal charges filed against HER? I'm not sure it's possible for an eviction to match the level of incompetence and corruption present in our case.

That's because we recently discovered four more grounds upon which our September 2015 eviction was unlawful. Add those to the six unlawful grounds of which we already were aware (see here, here, and here), and that makes 10 ways to Sunday that our eviction was contrary to law. And that doesn't even count that Carol was brutalized during the eviction, and bogus charges were brought against her after it was over. (A list of the 10 grounds upon which our eviction was unlawful is embedded at the end of this post.)

Why does this matter? Because all of these unlawful grounds mean we were subjected to an unreasonable search and seizure, violating the Fourth Amendment to the U.S. Constitution. And, under a U.S. Supreme Court case styled Mapp v. Ohio, 367 U.S. 643 (1961), evidence gathered via an unconstitutional search and seizure must be suppressed. There isn't much evidence in Carol's case -- only the Probable Cause Statement concocted by Deputy Debi Wade -- but the Fourth Amendment violations mean the PC statement must be excluded. That leaves the prosecution with . . . nothing -- no evidence, no case, nada, zero, zilch.

How gross is all of this? We're talking about grounds upon which landlord Trent Cowherd and his lawyer (Craig Lowther) could not, by law, bring an eviction -- meaning deputies from the Greene County Sheriff's Office (GCSO) had no right to even be on our rented property, much less to break into our home and wreak havoc -- leading to almost all of our personal property being stolen by Cowherd's eviction crew (based on the word of a neighbor, who was an eyewitness). On hand to witness the whole thing was Sheriff Jim Arnott himself, standing there like "a slab of meet with mittens."

BTW, when I say "bogus charges," those aren't just the words of an angry husband who happens to be fond of the defendant -- enough to have been married to her for 28 years. Even the so-called "victim" in the "assault of a law enforcement officer"charge -- Officer Jeremy Lynn -- admits he "caused physical contact" with Carol, not the other way around. That's the fundamental element of the offense in Missouri, and Lynn's own words show that Carol, as a matter of Missouri law, is not guilty of the charge.

What about the four new grounds we've discovered regarding the unlawful eviction, making it even more unlawful than we already knew? Let's take a look at them:


(1) Where was the demand for rent?

Under RSMo 535.020, a landlord must make a demand for rent before seeking to "dispossess" a tenant via eviction:

Whenever any rent has become due and payable, and payment has been demanded by the landlord or the landlord's agent from the lessee or person occupying the premises, and payment thereof has not been made, the landlord or agent may file a statement, verified by affidavit, with any associate circuit judge in the county in which the property is situated, setting forth the terms on which such property was rented, and the amount of rent actually due to such landlord; that the rent has been demanded from the tenant, lessee or person occupying the premises, and that payment has not been made, and substantially describing the property rented or leased.

Did Cowherd demand rent from us? Nope, and that's because our rent was paid through July 2015. A Notice to Vacate, dated July 2, 2015, was attached to our door -- and it makes no mention of late rent or a demand for rent. Cowherd simply tells us to be out by the end of the month (July 31). It is lawful in Missouri for a landlord to tell a tenant to vacate -- but at least one month's notice must be given, and it wasn't in our case. Also, such a notice is not grounds for a rent-and-possession case, which is what Cowherd filed. To file a rent-and-possession case in Missouri, you must want the tenant to leave because rent is late. But Cowherd's own Notice to Vacate shows our rent wasn't late, and that wasn't the reason the landlord sought to dispossess us.


(2) Was the judgment, which granted possession to Cowherd, even final?

Under RSMo 81.05, a judgment does not become final until 30 days after its entry. How do we determine that? It's spelled out at this post:

a. Supreme Court Rule 74.01 states that "a judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated "judgment" or "decree" is filed." The docket for our eviction case, Cowherd v. Shuler (Case No. 1531-AC04535) can be found at case.net, and it shows judgment was entered on August 31, 2015.

b. Supreme Court Rule 44.01 states that the first day of "an act, event, or default" is not to be included in computation of time, but the final day of the period is included." If you add 30 days to the date our judgment was entered (August 31, 2015), that means our judgment was not final until Oct. 1, 2015.

c. RSMo 534.350 states no execution may be levied until after the time for appeal has expired, which is 10 days. If you add 10 days to Oct. 1, that means our eviction could not be executed until Oct. 10, 2015.

So why did Cowherd and Lowther schedule our eviction for Sept. 9 -- 31 days too early, by law -- and why did the GCSO carry it out, contrary to Missouri law? The answer to that question is not clear, but the FAQ Web page for Anderson and Associates, a Kansas City law firm that represents landlords in both Missouri and Kansas makes it clear our eviction was butchered:

Any judgment, other than a default judgment, becomes final after 30 days. After a judgment becomes final, the writ of restitution can be issued to the Deputy Sheriff.

Even a landlord with ants in his pants must wait 30 days, until the judgment is final, to move forward with execution. That did not happen in our case -- not even close.


(3)  Did Cowherd give proper notice to vacate?

The Notice to Vacate attached to our door is dated July 2, telling us to exit the premises by July 31. That's odd when you consider that RSMo. 441.060 states that a tenancy can be terminated only by giving one month's notice, in writing. If you count from July 2 to July 31, you get 29 days -- and that is not one month.

To make matters even more glaring, item No. 15 in our rental agreement states "the 30-day notice must be given on the 1st of the month, to be vacated by the last day of the same month." Someone from Cowherd even underlined that in blue, as if to highlight its importance. So, why couldn't the landlord himself follow the rule that he made and highlighted?

How does failure to give 30 days notice on the first of the month affect a landlord? Our friends from Anderson and Associates spell it out:

To terminate a month-to-month tenancy, you must provide the tenant(s) with one month’s notice, calculated from a rent paying date. For example, if rent is due on the 1st day of each month, the Landlord must give notice on July 1st to terminate on July 31st. The Law Offices of Anderson and Associates will file your eviction on August 1st. If the Landlord gives notice on July 5th, he cannot terminate until August 31st.

By failing to give timely notice on July 1, Cowherd (by law) had to wait to give it another shot on August 1. He did not do that.


(4) What about the county seal?

A blank Missouri form for "Execution in Landlord's Action for Possession . . . " contains the following language in red:

Note: The seal of the Greene County Circuit Court MUST be affixed for this Execution to be valid.
Why is that language there? Probably to prevent landlords and/or lawyers from moving on their own to evict tenants without court approval. In other words, the language probably is there to keep landlords like Cowherd and lawyers like Lowther from doing exactly what they did in our case.

No such document that we received included the Greene County seal, indicating we were kicked to the curb via an extrajudicial and unlawful action.

Again, why does all of this matter? Let's turn to Mapp v. Ohio, which might be one of the 25 most important U.S. Supreme Court decisions of the past 60 years. The appellant (Mapp) was convicted in state court of "having under her control certain lewd and lascivious books, pictures, and photographs," contrary to Ohio law. How did police become aware of this material? Well, the process wasn't pretty -- and it certainly was not constitutional. Here are the key facts in Mapp, and they sound a lot like our experience in Greene County, MO:

On May 23, 1957, three Cleveland police officers arrived at appellant's residence in that city pursuant to information that "a person [was] hiding out in the home, who was wanted for questioning in connection with a recent bombing, and that there was a large amount of policy paraphernalia being hidden in the home." Miss Mapp and her daughter by a former marriage lived on the top floor of the two-family dwelling. Upon their arrival at that house, the officers knocked on the door and demanded entrance, but appellant, after telephoning her attorney, refused to admit them without a search warrant. They advised their headquarters of the situation and undertook a surveillance of the house.

The officers again sought entrance some three hours later when four or more additional officers arrived on the scene. When Miss Mapp did not come to the door immediately, at least one of the several doors to the house was forcibly opened . . .  and the policemen gained admittance. Meanwhile Miss Mapp's attorney arrived, but the officers, having secured their own entry, and continuing in their defianc√© of the law, would permit him neither to see Miss Mapp nor to enter the house. It appears that Miss Mapp was halfway down the stairs from the upper floor to the front door when the officers, in this highhanded manner, broke into the hall. She demanded to see the search warrant. A paper, claimed to be a warrant, was held up by one of the officers. She grabbed the "warrant" and placed it in her bosom. A struggle ensued in which the officers recovered the piece of paper and as a result of which they handcuffed appellant because she had been "belligerent" in resisting their official rescue of the "warrant" from her person.

What happened next? From the Mapp opinion:

Running roughshod over appellant, a policeman "grabbed" her, "twisted [her] hand," and she "yelled [and] pleaded with him" because "it was hurting." Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet and some suitcases. They also looked into a photo album and through personal papers belonging to the appellant. The search spread to the rest of the second floor including the child's bedroom, the living room, the kitchen and a dinette. The basement of the building and a trunk found therein were also searched. The obscene materials for possession of which she was ultimately convicted were discovered in the course of that widespread search.

At the trial, no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for. At best, "There is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant's home" . . . . The Ohio Supreme Court believed a "reasonable argument" could be made that the conviction should be reversed "because the methods' employed to obtain the [evidence] . . . were such as to 'offend "a sense of justice,"'" but the court found determinative the fact that the evidence had not been taken "from defendant's person by the use of brutal or offensive physical force against defendant." . . .

Did the U.S. Supreme Court let stand the fallout from such brown-shirt policing? Absolutely not. It found that evidence produced in an unreasonable search and seizure -- in a prosecution in a State court, for a State crime -- must not be admitted. The high court found that constitutional protections that had only applied in federal court now applied in state-court actions. From a concurring opinion by Justice Douglas:

We held in Wolf v. Colorado, 338 U. S. 25, that the Fourth Amendment was applicable to the States by reason of the Due Process Clause of the Fourteenth Amendment. But a majority held that the exclusionary rule of the Weeks case was not required of the States, that they could apply such sanctions as they chose. That position had the necessary votes to carry the day. But, with all respect, it was not the voice of reason or principle.

As stated in the Weeks case, if evidence seized in violation of the Fourth Amendment can be used against an accused, "his right to be secure against such searches and seizures is of no value, and . . . might as well be stricken from the Constitution." 232 U.S. at 393.

When we allowed States to give constitutional sanction to the "shabby business" of unlawful entry into a home . . . , we did indeed rob the Fourth Amendment of much meaningful force. . . .

Without judicial action making the exclusionary rule applicable to the States, Wolf v. Colorado, in practical effect, reduced the guarantee against unreasonable searches and seizures to "a dead letter" . . .


Thursday, November 16, 2017

Ashley Madison customers revealed: Attorney Peter S. Blasi, with active practices in Missouri and Illinois, appears at notorious extramarital-affairs Web site


Peter S. Blasi and family
(From facebook.com)
A named partner at a St. Louis law firm that focuses on workers' compensation, personal injury, negligence, and products liability appears on the Missouri list of paying customers at the Ashley Madison extramarital-affairs Web site.

Peter S. Blasi heads the workers' comp and employment section at the Evans Blasi law firm. Blasi is licensed to practice in Missouri and Illinois, and he serves as an arbitrator for uninsured/underinsured motorist cases throughout Illinois and Missouri. Blasi has been named a "Super Lawyer" in Illinois, an honor that is based on peer recognition and professional achievement. From Blasi's bio at the Evans Blasi Web site:

Peter S. Blasi, heads the firm’s workers’ compensation and employment practice group. In addition, Peter maintains a diverse civil litigation practice handling both plaintiff and defendant personal injury, workers' compensation, employment and title insurance litigation claims. Peter has successfully represented hundreds of clients for over decade before the Illinois Workers’ Compensation Commission, Missouri Division of Workers Compensation and the Illinois Department of Human Rights. Mr. Blasi has taken hundreds of cases to trial, hearing and or appeal including cases addressing first impression issues involving independent contractor/employee issues and joint contribution amongst employers. Peter has secured millions of dollars in benefits for his employee clients over the years as well as save his employer clients from paying out large awards on questionable claims.

Blasi is married to Tami Blasi, and her Facebook page indicates the couple has four children. The Blasis live at 9137 Park Haven Ln, Saint Louis, MO. Their house, according to Zillow, has an estimated market value of $452.052.

We sought comment from Peter Blasi for this post, but he has not responded to our queries.


Previously:

Article with links to 1-40 in Ashley Madison series

(41) David Armistead, director of enterprise sales, TekLinks, Birmingham (10/19/17)

(42) William House, VP and controller, HealthSouth, Birmingham (10/26/17)

(43) Olin B. Barnes III, VP, One Resource Group, Birmingham (11/1/17)

(44) T.J. Bunn Jr., ST Bunn Construction, Tuscaloosa (11/2/17)

(45) Todd Deffenbaugh, VP and controller, Express Oil Change, Birmingham (11/6/17)

(46) Richard D. Crites, lawyer and reserve deputy, Springfield, MO (11/13/17)

(47) Mark C. Trudeau, CEO, Mallinckrodt Pharmaceuticals, St. Louis, MO (11/15/17)

Don Siegelman prosecution was driven by GOP's desire to control gaming and generate mounds of cash for Bob Riley and his associates, says Tommy Gallion


Tommy Gallion
A desire to take over gaming operations in Alabama and generate funds for Bob Riley and his associates drove a Republican scheme to prosecute former Democratic Governor Don Siegelman, according to a statement from a prominent Montgomery attorney.

Tommy Gallion states in an affidavit that he was invited to a meeting where Alabama Republicans were to discuss a political prosecution of Siegelman. Former George W. Bush adviser Karl Rove was among those expected to attend the meeting.

Gallion had been involved with the Republican Party since 1972, and the late Winton Blount III invited him to the meeting, where a group of Republicans were to discuss their plan to work with newly appointed U.S. Attorney Leura Canary to indict Siegelman. Blount, a former gubernatorial candidate and chair of the Alabama Republican Party, died in February 2015. (The Gallion affidavit is embedded at the end of this post.)

It did not take Gallion long to decide he wanted no part of such a meeting. But he did learn what was behind the scheme. From the affidavit:

This whole ploy was undertaken to take over gambling in Alabama and to line the pockets of Congressman [Bob] Riley and his political minors if he was elected governor. After Riley was elected governor, he immediately moved to close down the legally operating casinos in order to remove all competition for the benefit of the Choctaw Indian casino operation slightly over the Alabama line in Mississippi and later the Poarch Creek Indian casino in Alabama. 

Gallion's sworn statement is entered as an exhibit in a pending federal lawsuit, under the Freedom of Information Act (FOIA) that attorney Joseph Siegelman (Don's son) brought, seeking records about Canary's supposed recusal in the Siegelman prosecution. Records in that lawsuit, before U.S. District Judge Madeline Haikala, show the U.S. Department of Justice turned over the requested documents to the court on April 10.

More than seven months later, Haikala still has not made a ruling. According to the court docket, she is to conduct an in camera ("in the chamber") review of the records. Will she make the documents public or keep them under wraps. That remains unknown, but the Gallion affidavit could be a key factor in her decision.

In his affidavit, Gallion describes his deep roots with the Republican Party:

I have been a Republican since 1972 and have been involved with the Republican Party since that time. In 1984, I was a delegate for the Republican National Convention in Dallas, Texas, for re-election that nominated Ronald Reagan. I was on the Convention Committee for the Republican National Convention in New Orleans that nominated George H.W. Bush for president in 1988. I was also appointed legal counsel for the Republican National Committee from Alabama for roughly five years and was Ballot Security Co-Chairman for the Alabama Republican Party in the State of Alabama for several state and national elections. I remain a Republican to this day. 

The scheme to prosecute Siegelman for political reasons has forced Gallion to distance himself from certain GOP factions:

My father was twice elected attorney general of Alabama, and my father-in-law died while serving many years on the Alabama Supreme Court. I consider the political prosecution of Don Siegelman and others by these newly elected Republicans to be so corrupt that I ceased to support anything to do with these facinorous cretins who were corruptly using political prosecutions solely for money and power.


Wednesday, November 15, 2017

The political prosecution of Paul Benton Weeks: How can you be charged with securities fraud when the transaction in question did not involve a security?


Paul Weeks and son
How weak is the securities fraud case against Missouri attorney and whistle blower Paul Benton Weeks? Well, the underlying transaction apparently did not involve a "security." And even if it did, prosecutors brought the case way past the statute of limitations.

If that sounds familiar to Legal Schnauzer readers, that's because it is reminiscent of the Don Siegelman case. In that fiasco, there was no evidence of an explicit quid pro quo ("something for something" deal), which is the central element in a federal funds bribery case -- and Judge Mark Fuller did not even give the jury an instruction that required an explicit quid pro quo. That's why we've written so many times that Siegelman and codefendant Richard Scrushy were convicted of a crime that doesn't exist. To make matters even more outrageous, federal prosecutors brought the case almost one full year after the five-year statute of limitations had expired.

So, it's ironic that Weeks -- whose searing affidavit helped undress  Fuller as a government-sponsored con artist -- is facing the kind of slipshod prosecution that Siegelman had to confront.

As an initial matter, you would expect a "securities fraud" case to involve a "security." But, in Missouri, you would be wrong -- especially if your name is Paul Weeks and you've made it a habit to  shine light on government and court-related abuses. Investopedia describes a security as follows:

A security is a fungible, negotiable financial instrument that holds some type of monetary value. It represents an ownership position in a publicly-traded corporation (via stock), a creditor relationship with a governmental body or a corporation (represented by owning that entity's bond), or rights to ownership as represented by an option.

Was there anything with the transaction in question that fits that description? Did it involve a stock, bond, or option? Not even close. The Judicial Integrity Report (JIR) -- a non-partisan, public interest organization founded to expose and report irregularities, injustice, and corruption in our nation's courts and justice systems -- describes the Weeks transaction as follows:

The securities-fraud charge grew from a 2009 private-loan transaction between Weeks and a personal acquaintance. Weeks borrowed $200,000, signing and delivering to the private lender a personal promissory note. Over the next two years, Weeks incurred severe financial losses in the stock market and could not repay the note on schedule.

How does that square with the definition of a security, cited above? It doesn't, and the issue does not appear to be a close call. A look at Missouri's legal history backs up that assessment. From the JIR:

According to one Missouri law book, there is "little Missouri case law" on the subject of criminal securities fraud prosecutions, because only a "few" criminal securities fraud cases have ever been prosecuted in Missouri. 1A MISSOURI PRACTICE, Methods of Practice: Transaction Guide, sec. 27.40, p. 185 (3d ed., 1992). 
As late as 1995, a Missouri court acknowledged there was "no Missouri case law" on the legal standard necessary to prove a securities law prosecution in Missouri. Dumke, 901 S.W. at 102.

This is a national issue, not one limited to Missouri. Reports JIR:

Many courts have ruled that promissory notes used in personal one-on-one transactions are not securities. 
Indeed, when the United State Congress enacted the federal securities laws back in the 1930s, Congress made it expressly clear that personal and commercial promissory notes were not securities; were not to be treated as securities; and, that Congress did not intend for personal or commercial promissory notes to be treated as securities.

When you factor in the specifics of the Weeks transaction, the government's case goes from weak to putrid. From the JIR:

More disturbing is that in Missouri, other than the Weeks prosecution, there are no cases reported in which a person has been criminally charged and prosecuted for "securities fraud" for having signed a promissory note in a private transaction an then failing to repay the note. Paul Weeks appears to be the only person ever prosecuted in Missouri for having signed a personal promissory note, in a private transaction, and then failing to pay.

Like most journalists, I don't usually use the words "math" and "fun" in the same sentence. But numbers associated with the Weeks case create an exercise in arithmetic that is . . . well, downright fun -- if you block out the fact that an innocent person's freedom is being threatened:

Official court statistics in Missouri confirm that it is virtually impossible for a person to be prosecuted . . . for having signed a promissory note and then failing to repay. According to the Missouri Office of State Courts Administrators, since 2006 there have been 63,101 civil cases filed in Missouri courts . . . in which the complainant alleged that the defendant had signed a promissory note but failed to repay. Yet, not one of those 63,101 cases appears to have resulted in a criminal "securities fraud" prosecution . . .  
Statistically, this means that every person in Missouri who signs a promissory note, but fails to repay it, faces a virtually zero chance of ever being prosecuted for alleged "securities fraud." The statistical probability of being prosecuted in Missouri for signing a promissory note, but not repaying it, is numerically measured to be 0.000015% -- meaning that the probability of facing a criminal prosecution in Missouri [on such a matter] is so infinitesimally small that there is a zero to the left of the decimal point, and four zeros to the right of the decimal. The probability is very close to zero -- and it gets even closer to zero considering that only a few criminal securities prosecutions have been filed in Missouri since 1928. 

Speaking of math, here are more interesting numbers from the JIR:

In Missouri, the statute of limitations for alleged "securities fraud" is three years. The charge against Weeks is based on a private loan transaction that occurred in August 2009. Therefore, simple math would indicate that the statute of limitations in the Weeks case expired in August 2012, At that point, a Missouri prosecutor is required by . . . law, not to comment a prosecution barred by the statute of limitations. . . .  
But [Chris] Koster and the Missouri Attorney General's Office filed their untimely prosecution against Weeks anyway. These Missouri officials commenced their prosecution against Weeks on Dec. 24, 2014 -- some 30 months after the three-year statute of limitations had already run. 

The law -- and the math -- tell the same story: The criminal charges against Paul Weeks are not just weak; they are putrid.

Does that suggest Weeks is being prosecuted for political reasons? It sure does, and we examine that question in more detail next.


(To be continued)

Ashley Madison customers revealed; Mark C. Trudeau, paid more than $12 million a year at Mallinckrodt Pharmaceuticals, appears at cheaters' Web site


(From stltoday.com)
A pharmaceutical-company CEO, who is paid more than $12 million a year, appears on the Missouri list of paying customers at the Ashley Madison extramarital-affairs Web site, according to publicly available records.

Mark C. Trudeau is global chief executive officer and president of Mallinckrodt PLC, which has its executive base in Staines-upon-Thames, England. It has a manufacturing operation in Dublin Ireland, with U.S. headquarters in St. Louis, MO (at 675 McDonnell Blvd.).

Trudeau worked at four other major pharmaceutical companies -- Covidien, Bayer, Bristol-Myers Squibb, and Abbott Laboratories -- before taking on the top job at Mallinckrodt in 2013. He has significant international experience, serving as a division president or manager in Canada, the United Kingdom, and the Asia/Pacific region. From the Wikipedia entry for Mallinckrodt:

Mallinckrodt Pharmaceuticals, based in Staines-upon-Thames, England, with its U.S. headquarters in St. Louis, Missouri, produces specialty pharmaceutical products, including generic drugs and imaging agents.

Mallinckrodt manufactures and distributes products used in diagnostic procedures and in the treatment of pain and related conditions. This includes the development, manufacture and distribution of specialty pharmaceuticals, active pharmaceutical ingredients, contrast products and radiopharmaceuticals. The company employs 5,500 at 47 locations around the world. Net sales were $2 billion in 2011.

No wonder the company can afford to pay Trudeau well. According to a January 2017 article at the St. Louis Post Dispatch, Trudeau's compensation had shot up 29 percent, to $12.6 million:

Mallinckrodt Chief Executive Mark Trudeau's pay jumped 29 percent to $12.6 million as the company rewarded him for a year when profits more than doubled.

Mallinckrodt, a drug company that is legally Irish but has its headquarters in Hazelwood, disclosed details of its executive pay in a proxy statement last week.

Trudeau's pay included a salary of $1.04 million and a bonus of $1.6 million, which was 127 percent of the target amount. He also received $5.9 million in stock and $3.9 million in options, with some of the stock depending on Mallinckrodt's revenue growth and total shareholder return between 2016 and 2018.

An earlier stock award, from 2014, paid out at 200 percent of its targeted amount. That brought Trudeau shares worth $2.5 million at current prices.

The CEO's windfall did not end there:

Trudeau also received $101,003 in contributions to a supplemental savings plan and $16,535 in tax reimbursement. The tax reimbursement was for executives whose spouses or partners attended a national sales conference.

Mallinckrodt's earnings per share more than doubled during fiscal 2016, which ended Sept. 30. Its share price rose 9 percent.

Trudeau's golden parachute, the amount he would receive if he leaves Mallinckrodt after a takeover, is valued at $26.7 million.

Mallincrodt markets imaging products mostly to hospitals, physicians, and technologists. But its specialty brands and generics likely can be found at your nearby retail drug store or pharmacy. Mallinckrodt is a major manufacturer and distributor of opiods, including several forms of hydromorphone and oxycodone. Generics include acetaminophen (pain/fever), clomipramine (antidepressant), dextroamphetamine (ADHD), and fentanyl citrate (severe pain).

The company also is known for Acthar, a controversial, expensive drug for treatment of lupus, multiple sclerosis, and infantile spasms. According to the Medicare Drug Spending Dashboard for 2015, it was the single most expensive drug, per patient, that the government paid for during the course of last year. Of the 3,100 beneficiaries using Acthar, Medicare spent an average of $162,371.

Personal information about Trudeau is scarce. Our research indicates he is married to Susan H. Trudeau, and it appears they have three children. They once owned a residence at 55 Chesterfield Lakes Rd. in metro St. Louis, but they apparently sold that. Property records show them owning a home in Columbus, Ohio.

We sought comment from Mr. Trudeau, and Michael-Bryant Hicks, general counsel for Mallinckrodt, responded with the following statement:

Mr. Shuler,

As the General Counsel for Mallinckrodt Pharmaceuticals, I'm responding to your email to Mark C. Trudeau, dated October 30, 2017. This communication is to inform you that Mallinckrodt, amongst other measures, has completed a forensic analysis of both the data released to the public following the hack of Ashley Madison and the content of the website since the date it was hacked. By that analysis, the company has verified that Mr. Trudeau has never had any experience with Ashley Madison or that company's website. He has not registered nor in any way made any use of the website. Therefore, the content of your email is either a case of mistaken identity or someone impersonating Mr. Trudeau as a serious prank. In either case, the allegations you intend to make are not true. If you recheck the facts, you will be forced to come to the same conclusion.

I ask that you refrain from publishing your inaccurate story, which could be damaging to Mr. Trudeau's reputation. Should you persist in your plan, you will be liable for defamation under the law.


Sincerely,
Michael-Bryant Hicks
General Counsel
Mallinckrodt Pharmaceuticals

Mark Trudeau certainly has an enviable salary, but his tenure at Mallinckrodt has involved a few bumps in the road. The Federal Trade Commission and five state attorneys general sued the company for anti-competitive behavior -- and Mallinckrodt settled in January 2017 for $100 million. It was part of a U.S. Senate report last year on price gouging in the prescription-drug industry. A prominent investor has accused Trudeau and Mallinckrodt of fraud.

We will examine these issues in an upcoming post.


(To be continued)


Previously:

Article with links to 1-40 in Ashley Madison series

(41) David Armistead, director of enterprise sales, TekLinks, Birmingham (10/19/17)

(42) William House, VP and controller, HealthSouth, Birmingham (10/26/17)

(43) Olin B. Barnes III, VP, One Resource Group, Birmingham (11/1/17)

(44) T.J. Bunn Jr., ST Bunn Construction, Tuscaloosa (11/2/17)

(45) Todd Deffenbaugh, VP and controller, Express Oil Change, Birmingham (11/6/17)

(46) Richard D. Crites, lawyer and reserve deputy, Springfield, MO (11/13/17)

Tuesday, November 14, 2017

Beverly Young Nelson's statements unmask Roy Moore, Jeff Sessions, and Mitch McConnell as a GOP version of the Not Ready for Prime Time Players


Beverly Young Nelson and attorney Gloria Allred
(From cnn.com)
Yesterday's revelations that a fifth Alabama woman had come forward with allegations of sexual misconduct against Republican U.S. Senate candidate Roy Moore go way beyond groping, a forced attempt at oral sex, and other disgusting acts. The statements from Beverly Young Nelson shine a white hot light on the moral rot at the center of the postmodern GOP. Nelson added to the mountain of evidence that the "conservative movement" is filled with rogues -- Roy Moore, Jeff Sessions, Mitch McConnell, to name a few -- who are a political version of the "Not Ready for Prime Time Players."

Nelson's words about a 1977 encounter with Moore outside the Old Hickory House restaurant went way beyond the statements of earlier accusers. Before yesterday, Moore had been depicted as a creepy guy who approached under-aged girls at a courthouse or a mall and wound up making inappropriate physical contact with them. Nelson, on the other hand, described a sexual assault.

Evidence is mounting that Moore has engaged in sins of the flesh. But his greatest sin might be arrogance. Moore has spent the past 25 years trying to con Alabamians into believing he is a man of God because of his propensity to tout The 10 Commandments with every other breath. The con game worked well enough that he twice was elected chief justice of the Alabama Supreme Court, and he probably could have held that position for a lifetime. But Moore had to defy higher-court rulings, causing him to twice be booted from his chief justice role.

The Alabama press had shown no ability, or interest, in unearthing the dark secrets in Moore's past, so he probably would have been secure had he remained in a statewide position. But arrogance -- and an exalted belief in his own abilities -- caused Moore to seek a nationwide slot in the U.S. Senate. And that drew the attention of Washington Post reporters, who exposed Moore's taste for the tender flesh of teen girls.

That brings us to Jeff Sessions, Donald Trump's attorney general. He held the seat that Moore and Democrat Doug Jones now are seeking, and Sessions probably could have held it until he was fossilized. But Sessions apparently thought he belonged on a bigger stage, so he accepted the AG appointment. Now, he is one of many targets of Robert Mueller's investigation in the Trump-Russia scandal -- and Sessions has scrambled matters even more by repeatedly making false statements, under oath to Congress. Just this morning, Sessions testified before the House Intelligence Committee, where The New York Times reported he displayed "unsteady recall on Trump-Russia matters."

Roy Moore
(From aol.com)
And get this: Sessions claims that he "has no reason to doubt" the accusers against Roy Moore. That's fine, I have no reason to doubt Moore's accusers either. But based on his clear record of lying to Congress, Americans have no reason to believe a word Jeff Sessions says. It's doubtful Sessions even recognizes the irony in his statement regarding Moore.

That brings us to Senate Majority Leader Mitch McConnell (R-KY). Like Sessions, McConnell says he believes the Moore accusers and suggests Moore should step out of the race. How rich is that? This is the same Mitch McConnell, who in fall 2016, did not believe U.S. intelligence reports that Russia was meddling in the presidential election and vehemently objected to the reports being made public. From a New York Times report about Russian meddling, which was known before the 2016 election and could have kept the tainted Trump administration out of the White House:

The classified briefings that the C.I.A. held in August and September for the so-called Gang of Eight — the Republican and Democratic leaders of the House and the Senate and of the intelligence committees in each chamber — show deep concerns about the impact of the election meddling.

In the briefings, the C.I.A. said there was intelligence indicating not only that the Russians were trying to get Mr. Trump elected but that they had gained computer access to multiple state and local election boards in the United States since 2014, officials said.

Although the breached systems were not involved in actual vote-tallying operations, Obama administration officials proposed that the eight senior lawmakers write a letter to state election officials warning them of the possible threat posed by Russian hacking, officials said.

But Senator Mitch McConnell of Kentucky, the Republican majority leader, resisted, questioning the underpinnings of the intelligence, according to officials with knowledge of the discussions.

So, Mitch McConnell believes Roy Moore's accusers -- and I believe them, too -- but McConnell's statement seems to be a political calculation. After all, Moore apparently does not subscribe to the pro-business GOP agenda, and he had the audacity to beat Luther Strange, McConnell's favorite, in the Alabama GOP primary.

That's the same Mitch McConnell who did not believe the U.S. intelligence community on matters of national security and election integrity -- because he knew if the revelations became public it would hurt the chances of a Republican (Donald Trump) becoming president.

That's what serves as "statesmanship" in postmodern America. Mitch McConnell doesn't have it, and neither do Roy Moore and Jeff Sessions. Not even close.

"Victim's" own words do not support assault charge against Carol, so prosecutors seem to be employing "clown commenters" to engage in pretzel logic


Jeremy Lynn
As a blogger, I know I've hit a nerve when anonymous comments start flying in, filled with twisted "facts" in an apparent effort to change the tone of conversation -- and maybe my reporting. My posts on Ashley Madison have been drawing attacks from such "comment squadrons" for months, and yet no one has come close to showing my AM posts are inaccurate. More recently, posts about criminal charges brought in Missouri against my wife, Carol, have come under such attacks. (See here and here.) They tend to leave me amazed and amused at the lengths some folks will go in an effort to con Legal Schnauzer readers. Be assured the attackers -- we've come to call them "clown commenters" or "CC" for short -- will not be successful. But it's comical to watch them try.

The CCs particularly have come unglued over posts showing that Officer Jeremy Lynn, the supposed "victim" in the assault of a law enforcement officer charge against Carol, admits in a written narrative that he caused contact with Carol, not the other way around. That's important because RSMo 565.083 holds that the central issue in the charge against Carol is whether she "knowingly caused or attempted to cause physical contact with a law enforcement officer." The Probable Cause Statement claims Carol "got physical" with Lynn and "pushed him repeatedly," even thought the statement's author -- Officer Debi Wade -- admits she did not witness such an event and only was "advised" of it by an unknown individual, who remains a "ghost" to this day.

Lynn resolves the matter when he writes in an incident report about his encounter with Carol as he broke into our home for an unlawful eviction on Sept. 9, 2015. These are Lynn's own words:

There was a female, however, that had been trying to force the door closed and she was standing just behind the door and trying again to force it closed. She was very aggressive and fighting against the door. She was grabbed by her arms and restrained to stop her from harming one of us or herself. During this process she was pulling her arms away from me and tried to push me back with her arms and body. She was told to calm down repeatedly and ignored those commands. She was eventually handcuffed and taken outside.

This, especially the part in yellow, tells us all we need to know, under Missouri law. In the first two sentences, Lynn claims Carol made contact with a door -- and that apparently is based on the word of a "ghost" -- but he doesn't say she made contact with him. Then come the key words: "She was grabbed by her arms and restrained . . . " That's the first human-to-human contact described, and it involves Lynn grabbing Carol. Since he "knowingly caused contact" with Carol, she could not have caused contact with him. She could not be guilty of "assault on a law enforcement officer" -- case closed. In fact, what Lynn describes is an assault against Carol, by a thug/cop who had no lawful grounds to be on our rented property, much less breaking into our living quarters.

Clown commenters -- we suspect they are connected to the Office of Greene County Prosecuting Attorney Dan Patterson -- know Lynn's words don't look good for their side. So they have engaged in pretzel logic, twisting words in a way that produces utter nonsense. Here are the key goofy points they try to make:

(1) "Caused contact," under the Missouri statute, does not mean "initiated contact"; it has some mystical meaning that only the commenter knows -- even though he can't describe it.

(2) By Carol allegedly pushing on the door -- and no named accuser is known to have witnessed that -- it caused Lynn to restrain her. In other words, Carol forced Lynn to grab her. (I told you these folks can twist words!)

(3) Carol kicked and flailed against Lynn, words that aren't even present in the PC Statement or the Misdemeanor Information.

Why do we think these comments might come from someone in the Greene County prosecutor's office? Well, they started with an Oct. 18 post titled "What was Prosecutor Dan Patterson thinking when he brought State v. Carol Shuler, a criminal case that provides no evidence of a crime being committed." Is someone trying to protect Patterson's reputation from blow back for bringing a case that, even the "victim" admits, has no basis in fact? That's how it looks from here. Let's take a look at the first clown comment:

FYI "caused contact" does not mean "initiated contact" - even if it did, which it doesn't, Carol pushing a door against the officer led to him restraining her or attempting to. The complaint lays out that when he did this, she fought him. She pushed pulled, flailed against him, kicking, using her body to bump him, etc. IOW fighting the restraint instead of submitting or being still. He describes that contact in sufficient detail to support the charge.

If there is a defense (such as his illegal presence, etc.) for that fighting against the officer with kick and body blows, that is a different issue. If she was justified in resisting, attempting to push the officer away or to escape his grasp would not be a crime.

She did cause contact. The relevant contact in the complaint to support the charge is distinct from the contact he decided to make with her (to grab her arms IIRC)

Here is my response to this example of brilliant legal "reasoning":

Nice try, but you are wrong. Caused contact means exactly what it says. The cop grabbed Carol, not the other way around. Try actually reading the Probable Cause Statement. Debi Wade, the author of it, admits she didn't witness Carol do anything -- rather, she was "advised" by an unnamed person. You say. "He [Lynn?] describes that contact in sufficient detail to support the charge." Lynn doesn't describe it at all. Debi Wade describes it, based on the word of an unknown "adviser." That does not come close to supporting probable cause, and it violates Carol's Sixth Amendment right to confront her accuser.

In essence there is no accuser in this case. Jeremy Lynn doesn't accuse Carol of assault and neither does Debi Wade. No known person accuses Carol of anything. No named person says Carol pushed against a door, touched Jeremy Lynn, or did anything that remotely constitutes a crime. On top of that, you are just pulling a lot of stuff out of your ass. Even the "adviser" doesn't claim Carol "flailed," or "kicked," or "bumped" anyone. You must be a cop because you sure lie and make stuff up like one.

Finally, Carol is charged with assaulting an officer, not "fighting the restraint" or "failing to submit" or whatever else you can find in your anal cavity. She's not charged with "resisting" because she wasn't under arrest. You should apply at the Greene County Sheriff's Office because your utter lack of knowledge about the law matches theirs. Even if she touched a door, and no named person claims she did, she made contact with her own door, not Jeremy Lynn. If you think that qualifies as an "assault" under Missouri law, you truly are out to lunch.

The essence of the assault claim, under Missouri law, is who caused contact with whom. Jeremy Lynn admits he grabbed Carol, and you seem to admit the same thing -- that he grabbed her and tried to restrain her, even though his own words show she was trying to get away from him.

I notice that you don't cite any law to support your contentions, and that's because there isn't any.

Here are two words to describe you and your comment -- weak and pathetic (and pitiful, make that three words). If you want to try to defend your position, contact me by private email or phone, and I will be glad to discuss. Look forward to hearing from you.

Did the commenter contact me to directly to discuss these matters? Of course not. But that didn't stop him from trying to twist the discussion to fit his own agenda. Here's a follow-up comment, which was attached to the same post on Oct. 19:

Yes, trying to push an officer back by whacking him with a door can be a crime. But after gaining entry, and making the choice to restrain Carol, even if he makes "first contact" if she kicks, pushes, or throws her body weight against him in an attempt to get away, that is "causing contact." This is what is alleged to have occurred, and it is a sufficient basis to charge. Causing contact isn't limited to initiating contact, and the officer initiating contact doesn't excuse any pushing, kicking, or bumping or other fighting on Carol's part. If the officer had a good faith basis to enter the premises and restrain Carol, her fighting back in the ways described is a crime, even if the officer isn't hurt.

Here's a question that changes nothing, but which you have never fully explained. What did Carol,think she was going to accomplish by pushing, kicking, and throwing her weight against the officer attempting to restrain her? Or even fighting against the door, for that matter? She had to have understood that the officers would gain entry and that barricading or shutting the door against the officers was of no practical use. These are officers who believed they were there to carry out a court ordered eviction, and who had received information that you were potentially dangerous. What was the rational, practical benefit to be gained by her reaction? A better way to deal with the situation would have been to begin preparing to move, since it was clear the landlord wanted you to leave (and you weren't even paying rent.) You could have sued for damages after the fact if they breached your lease, you know.

The "clown commenter" quickly followed up with this:

Caused contact does not mean initiated, it means caused. You cause contact if you deliberately push someone, or put your hands on them. Every time she threw her weight against him or pushed him would be "causing contact." It's not a game of who started, it's did she deliberately make contact with the officer. You can ask her public defender.

As you can see, he's starting to repeat himself, so it was not hard for me to respond:

Back for more, I see, and still no citations to law to support anything you say. Gee, that's a surprise. A few points:

(1) You admit the officer initiated (caused) contact. Good deal. For those who know Missouri law, that means case closed.

(2) You describe Carol pushing, kicking, putting force on door etc. Please give the name of the person who witnessed this and put it in the Probable Cause Statement.

(3) You ask about why Carol "fought against the door," etc. You seem to accept that as true. Please provide the name of the person who witnessed those events and provided that information?

(4) Why do I need to ask a public defender anything? You've made no citation to law to ask about. Give me a citation to law, and I'll be glad to ask about it.

(5) Why haven't you contacted me for discussion? I made that good-faith offer, but it's been "crickets" from you. Why?

In the wake of this back and forth, we've presented case law that proves this clown has no clue on the matters at hand:

(1) There is no difference between "causing contact" and "initiating contact" 

Under Missouri law, per State v. Armstrong, 968 SW 2d 154 (Mo. Court of Appeals, 1998), these two terms mean the same thing. From the Armstrong ruling:

There was evidence indicating that the victim of the assault had arrested or was attempting to arrest Appellant when Appellant launched himself backwards into the deputy, knocking him off his feet and into a ditch. It is certainly reasonable to infer that the officer did not give his consent to being knocked down, as well as consent to other physical contact upon himself.

We do not view the State's two witnesses as being in direct contradiction, as one was not sure how the contact was initiated, but the other witness was.

The key question under Armstrong? Who initiated contact with whom? The answer in Carol's case? According to Jeremy Lynn's own words, it was him.

(2) Making contact with an inanimate object does not mean one has made contact with a living being

Our clown commenter claims that pushing on a door -- which no specific witness claims Carol did -- is the same as pushing on Jeremy Lynn. Missouri's appellate courts disagree, per a case styled JDB v. Juvenile Officer, 2 SW 3d 150 (Mo. Court of Appeals, 1999). JDB involved a juvenile who decided it would be fun to circle and then chase after the car of a woman (Ms. Hord) who lived nearby. In a roundabout chain of events, the juvenile was charged with third-degree assault. From the JDB opinion:

Ms. Hord testified that, at some time during the late afternoon or evening hours on that day, J.D.B. and two of his friends, wearing Halloween masks, surrounded her car and "gyrat[ed] their hips in a sexual manner." Ms. Hord became "upset" and left to run errands. Later that evening, at approximately 8:20, Ms. Hord again encountered the three teens while she was outside near her mailbox. When she saw them approaching, Ms. Hord got in her car and locked the doors. She testified that the boys again surrounded her car, this time holding the masks in their hands and also one of the boys "[n]ot J.D.B., [a]nother one" was carrying a plastic "machete." Ms. Hord testified the boys were again gyrating their hips and that J.D.B. was right next to her driver's side window "pumping his hips right into the car, so the car was moving."

Did the juveniles contact with Ms. Hord's car amount to an assault, even though he never touched her? The court answered in the negative:

This court has previously defined physical contact sufficient to constitute an assault as "the touching of the person of another or something so intimately associated with, or attached to his person to be regarded as a part thereof." State v. Greathouse, 789 S.W.2d 50, 52 (Mo.App., 1990).

Viewing the record in the light most favorable to the judgment, the only possible evidence of contact between Ms. Hord and J.D.B. was Ms. Hord's testimony that the juvenile was pushing against her car in such a manner that the car was moving. There is also J.D.B.'s testimony that he would apologize for scratching Ms. Hord's vehicle, which he then claimed was done not by him but by another of the juveniles. There is no evidence in the record of any contact that J.D.B. had with Ms. Hord's actual person. In order to support a conviction under this theory of assault, it must be found that the juvenile's contact with Ms. Hord's car was with something so intimately associated with or attached to her as to be considered a part of her person. The juvenile officer cites to no authority that would support such a finding, and this court can find no such Missouri authority.

As in J.D.B., there is no evidence that Carol made contact with Jeremy Lynn's actual person; in fact, he admits he initiated contact with her person. There is no admissible evidence -- other than hearsay of the highest order, from a "ghost" -- that Carol even made contact with the door. Once again, our clown commenter makes an argument that has no support under Missouri law.

(3) He who grabs first, commits the crime

Finally, we have State v. Raymond, (Mo. Court of Appeals, Eastern Dist., 2004), which involved a district attorney who became upset with two state troopers over the way they handled money seized in a pending case and wound up physically throwing one of the troopers out of his office. Before flying out the door, the trooper momentarily grabbed the DA in a headlock before deciding that was a bad idea and released him. This was a case of both parties making contact, but the trial court found the DA initiated contact and pronounced him guilty of assault of a law enforcement officer, third degree -- the same offense facing Carol. The verdict was upheld on appeal.

Even if you accept the clown commenter's assertions as true -- and they are not supported by statements from anyone on the scene that day -- Jeremy Lynn admits to causing physical contact with Carol. Even if she made incidental contact with him after being grabbed -- and there is no evidence that she did -- that does not amount to assault of a law enforcement officer, as a matter of law.


It's always interesting when someone makes a claim regarding a legal matter, but they can't make a single citation to law that supports their contention. That's the case with this clown. But we have pointed to plenty of citations that show he is wrong.