Patty Poe
Several readers have argued in recent weeks that we should be grateful to Missouri public defender Patty Poe because, before bailing out on Carol's case, she got the possibility of jail time removed from the table. If we seem less-than-grateful for that, here are two reasons: (1) The whole case should have been booted about 10 months ago if Poe had done her job, filing pre-trial motions focusing on the case's myriad weaknesses based on constitutional problems and defective charging documents; (2) We have not been privy to possible behind-the-scenes coordination between Poe's office and that of prosecutor Nicholas Jain, but we do have evidence that suggests Carol herself had more to do with jail time being booted off the table than did Patty Poe.Our last in-person meeting with Poe was on Monday, Oct. 30., and Poe's statements in that meeting left us concerned enough that Carol followed up with an email two days later on Nov. 1. Carol focused on matters of law that are highly relevant to her case, especially about the unlawfulness of the eviction that led to Greene County, Missouri, deputies breaking her arm. She started with this:
Patty:
This is Carol. As a brief followup to our meeting on Monday, Roger and I have found information that says a judgment in Missouri does not become final for 30 days.
We also found a law firm's landlord/tenant Web site for Missouri that says, "Any judgment, other than a default judgment, becomes final after thirty (30) days."
This seems to be another sign that someone jumped the gun on our eviction.
Carol
Here's how Poe responded:
If you send me those citations, I'd be happy to take a look.
Poe might soon have regretted making that statement because Carol dropped a payload on her, making clear and accurate citations to law that shredded bogus legal arguments Poe had been feeding us for weeks . . . months. From Carol, with links to the actual law:
(1) The part about a judgment becoming final in 30 days is at Missouri Supreme Court Rule 81.05:
https://www.courts.mo.gov/courts/ClerkHandbooksP2RulesOnly.nsf/c0c6ffa99df4993f86256ba50057dcb8/cbbbf728942570b186256ca6005215aa
(2) The part about that rule's impact on an eviction is at p. 6 (of 7) at the following Web page, from a law firm that handles evictions in MO and KS:
http://www.mokslaw.com/wp-content/aa_resources/FAQ_MISSOURI_EVICTIONS.pdf
(3) While we're at it, we also found RSMo 535.020, which states a landlord must make a demand for rent before seeking eviction.
http://www.moga.mo.gov/mostatutes/chapters/chapText535.html
Cowherd never made a demand for rent. Here is the notice that was attached to our door, telling us to get out and saying nothing about a rent demand -- and that's because our rent always was timely paid. Cowherd had no rent and possession case, but they filed one anyway -- even though their own notice shows we weren't late on rent, and they made no demand for rent:
https://drive.google.com/file/d/0B1GXKJS567CoMXBnNHUwSGdacmc/view?usp=sharing
(4) Finally, you might check the date on the notice to vacate above. It is July 2, 2015, demanding we vacate by July 31. Missouri law holds that tenant must be given full one month's notice -- and our lease said the same thing. In fact, the lease said we were to be given notice on the 1st of the month, and that obviously didn't happen.
http://revisor.mo.gov/main/OneSection.aspx?section=441.060&bid=24345&hl=
https://drive.google.com/file/d/0B1GXKJS567CoUDJ4WG14WmJ6em8/view?usp=sharing
These are four more grounds upon which our eviction was unlawful, bringing the total to about 12 -- meaning Cowherd had no grounds to evict us, Lowther [Cowherd's attorney, Gerald] had no grounds to seek eviction, and cops had no grounds to be on our property at all.
These citations to law show that our eviction was wildly unlawful, and under a U.S. Supreme Court case styled Mapp v. Ohio (U.S., 1961), all evidence must be suppressed -- gutting the state's case and leaving it with . . . nothing. Poe, however, was not finished trying to con us. She responded with this:
Whether or not the eviction was unlawful is not a defense. I attached a case that spells out that it doesn't matter if the officer was performing his duties in a lawful manner consistent with the constitution at the time of assault. As we discussed on Monday, I may discuss the eviction proceedings at trial to help the judge understand Carol's state of mind at the time, or why she would be mistaken in believing that the person at her door wasn't a police officer because she thought the eviction was stayed.
The case Poe cited was State v. Summers, 43 S.W. 3d 323 (2001) For weeks, Poe's mantra had been: "The fact the cops acted unlawfully is not a defense." Carol was ready to lower the boom on that malarkey, but first, she shredded State v. Summers:
I was charged under 565.083. State v. Summers is all about 565.081 and is even referenced at that specific statute (but not at 565.083).
Also, Summers is supported by a reference to 575.150, which involves constitutionality of an officer's actions in making an arrest. In my case, the officers were not there to arrest me. I had done nothing to be arrested for -- and the officer statements reflect that. They were there for an eviction, for which there was zero legal basis. That means Roger and I are protected by the Fourth Amendment, and all evidence must be suppressed.
The officer in Summers was called to the scene by a citizen, for an apparent criminal matter. Our situation was 100 percent civil -- and Debi Wade admits in her statement that officers had doubts about validity of the eviction, so she contacted an unnamed "counsel" in the sheriff's office, who told them to go ahead, contrary to law. We need to know the identify of said "counsel," and what he told Officer Wade. Whoever it was caused gross violations of our constitutional rights.
BTW, where does Rule 24.04 say a motion to dismiss is proper only for defects in information, cases of entrapment, etc.? I don't see it.
https://www.courts.mo.gov/courts/ClerkHandbooksP2RulesOnly.nsf/c0c6ffa99df4993f86256ba50057dcb8/b9db9823cbbd2b2a86256ca6005213de?OpenDocumentCarol
The only issue on appeal in Summers was whether the evidence was sufficient to convict for felony assault of a law-enforcement officer. Carol isn't charged with a felony; the officers in her case (in their own words) were not there to arrest her; and there has been no trial. so sufficiency of evidence is not remotely an issue for her.
Summers proved to be Poe's last gasp at her "that officers acted unlawfully is not a defense" spiel. And Carol was about to prove that Poe's efforts to "represent" her had been a sham -- and that's what would cause Poe to bail out.
(To be continued)
