The ugliness of an eviction
(From courtroom5.com)
Given that the prosecution holds the burden of proof -- if it can't make its prima facie case, there is no reason to have a defense -- even we (as non-lawyers) knew Poe was going about things in a bass-ackwards way. Carol was about to drive that home forcefully enough that it apparently caused Poe to bail out of the case -- taking the possibility of jail time with her.
The docket at case.net for State v. Carol T. Shuler (1631-CR07731) reveals a curious time-stamping issue -- and we will address that shortly. But evidence in our possession indicates Carol's ability to back Poe into a corner on relevant law is what caused jail time to be taken off the table.
When we left Poe in our previous post, Carol was shredding her argument from State v. Summers, 43 S.W. 3d 323 (2001), regarding the impact of cops' unlawful actions. Poe left her claim out there that cops' unconstitutional acts provide no defense for victims of those acts, so Carol decided to jump on it -- and she apparently landed a knockout blow. From Carol's email to Poe, promptly showing the latter's claims re: Summers were so much horse feces:
The U.S. Supreme Court disagrees with you. In Soldal v. Cook County, SCOTUS found that an illegal eviction implicates Fourth Amendment rights. From a summary of the case at Wikipedia:
"Soldal v. Cook County, 506 U.S. 56 (1992), was a United States Supreme Court case in which the Court held that a seizure of property like that which occurs during an eviction, even absent a search or an arrest, implicates the Fourth Amendment. The Court also held that the Amendment protects property as well as privacy interests, in both criminal as well as civil contexts. Finally, saying that "certain wrongs affect more than a single right", the Court left open the possibility that the Fourteenth Amendment's protections against deprivation of property without due process of law may also be implicated."
My Fourth Amendment rights were trampled, which means a motion to suppress should kick out all evidence collected due to an illegal eviction. That means the probable cause statement has to be kicked, leaving the prosecution with no case.
I would call that a defense; you might call it something else. But whatever you call it, this case demands that a motion to suppress be filed -- and based on my reading of 24.04, a motion to dismiss also would be proper -- to get all evidence booted because it was the fruit of an illegal seizure/search. Even you don't make much of an argument that the search was legal. You seem to claim it doesn't matter. Well, Soldal makes it clear that it does matter. Palmietto's comments from the bench at my last hearing make it clear she knows it matters. Therefore, we need to file a motion to suppress or dismiss -- I believe either is proper under the law.
Soldal is so on point that it even involves an eviction. Here is a summary of the issues at hand, from the opinion itself, written by the late Justice Byron "Whizzer" White:
While eviction proceedings were pending, Terrace Properties and its manager, Margaret Hale, forcibly evicted petitioners, the Soldal family, and their mobile home from a Terrace Properties' mobile home park. At Hale's request, Cook County, Illinois, Sheriff's Department deputies were present at the eviction. Although they knew that there was no eviction order and that Terrace Properties' actions were illegal, the deputies refused to take Mr. Soldal's complaint for criminal trespass or otherwise interfere with the eviction. Subsequently, the state judge assigned to the pending eviction proceedings ruled that the eviction had been unauthorized, and the trailer, badly damaged during the eviction, was returned to the lot. Petitioners brought an action in the Federal District Court under 42 U. S. C. § 1983, claiming that Terrace Properties and Hale had conspired with the deputy sheriffs to unreasonably seize and remove their home in violation of their Fourth and Fourteenth Amendment rights. The court granted defendants' motion for summary judgment, and the Court of Appeals affirmed. Acknowledging that what had occurred was a "seizure" in the literal sense of the word, the court reasoned that it was not a seizure as contemplated by the Fourth Amendment because, inter alia, it did not invade petitioners' privacy.
Held: The seizure and removal of the trailer home implicated petitioners' Fourth Amendment rights.
The similarities between Soldal and our situation are stark and stunning. Here are just a few:
(1) Soldal involved unlawful police actions while eviction proceedings were pending. The same was true in our case. Cops had only an interlocutory order here in Missouri, with a followup hearing set for a month away to consider other issues, including our counterclaim;
(2) Cops in Soldal knew there was no eviction order. That almost certainly was true in our case, as well. There could not have been a valid eviction order in Missouri because the judgment was not final. Plus, we've seen no evidence of a writ of execution that was signed by a judge or included the county seal, as required by law.
(3) In Soldal, the landlord showed utter disregard for the law, moving ahead with an eviction when she knew it had not been authorized by the court. Landlord Trent Cowherd acted in much the same fashion here in Missouri.
Here is Patty Poe's limp-wristed response to Carol's assertions about Soldal:
Hi Carol:
I don't find the Soldal case to be analogous to your case in many regards, especially considering there was a judgment in your case and not in the Soldal case. It goes back to what the officers reasonably believed, in Soldal they knew that there wasn't an eviction notice. Additionally, there are around 45 cases that declined to adopt Soldal or had some negative treatment.
Additionally, the State filed a notice of jail waiver (attached). Therefore, I will be withdrawing my representation pursuant to RSMo 600.042.4(2). My motion to withdraw will be heard on November 22 at 9:00 AM, you need to be there anyway. If the judge sustains my motion to withdraw you will need to hire private counsel or represent yourself. The good news is, they can only seek a fine, community service, or some type of class instead of jail time.
I will not be doing any further work on your case.
Best,
-P.
Poe's first paragraph is pure rubbish. There was no final judgment in either our case or the Soldal case, so they absolutely are analogous. Poe provides no evidence, and we have not found any, to show that Soldal is anything but good law.
In the second paragraph, Carol learns that Poe is bailing out of the case, and jail time is off the table. Is that because of anything Poe did? I don't see how. From where I sit it's clear, Carol backed Poe into a corner by showing motions to suppress had to be filed, and Poe was too big a wuss to do it -- so she bailed out. What a profile in courage!
As for the time-stamping issue, the docket shows prosecutor Nicholas Jain filed his Notice of Jail Waiver on 11/1/17, with Poe filing her Motion to Withdraw on 11/6/17. If that were the case, why didn't Poe tell Carol that up front? Why go through the rigmarole re: Summers and Soldal, etc.?
Experience has taught me that courthouse clerks' offices are among the most corrupt places on earth. I suspect the Jain and Poe documents were prepared simultaneously, and someone arranged for his to have an early time stamp, covering up signs of possible collusion.
My guess is that Jain and Poe know they can't possibly get a conviction against Carol in a court with the slightest hint of integrity. Their only hope is that Judge Margaret Holden Palmietto is corrupt and acts contrary to black-letter law by denying Carol's motions to suppress. And given evidence in recent months, it's starting to appear that Palmietto is utterly lacking in integrity -- showing my efforts to cut her slack and give her the benefit of the doubt were wildly misguided.
Those, by the way, are the motions Poe steadfastly refused to file, costing us at least five or six months of court headaches. So, we're supposed to believe Patty Poe was acting out of the goodness of her heart by helping get jail time off the table?
Not for one second. I, for one, don't believe there is any goodness in her heart. And it's becoming clear the Greene County Courthouse and its environs -- judges, sheriff's office personnel, public defenders, prosecutors -- contain a virulent form of corruption that could give Shelby County, Alabama, a run for its money.
They all are packed into a tight legal-tribe nest that needs to be fumigated. I would be happy to be involved in that project.
