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Wednesday, June 28, 2017

Ashley Madison customers revealed: Ron Ten Berge, former EBSCO executive who now is with Frontenac Private Equity of Chicago, appears at affairs site


Ron and Leigh Ten Berge
(From facebook.com)
A former high-level executive at EBSCO Industries, and a member of one of the most prestigious country clubs in the Birmingham area, appears as a paying customer at the Ashley Madison extramarital-affairs Web site, according to publicly available documents.

Ron Ten Berge was named president and general manager of PRADCO Outdoor Brands, a wholly owned subsidiary of EBSCO, in January 2013. According to an industry-magazine report in December 2014, Ten Berge had stepped down. From Fishing Tackle Retailer:

President and General Manager of PRADCO Outdoor Brands, Ron Ten Berge, is out effective December 15. Ten Berge joined the company in October 2012 after five years at Yakima and four with Pure Fishing. The official release from ESBSCO, PRADCO’s parent company, is mum on the details of the breakup. Tim Collins, the freshly-coined CEO of EBSCO, who assumed his role in July, illuminated only that PRADCO has seen quality control issues under Ten Berge’s leadership.

Ten Berge has landed as CEO1st Executive Partner at Frontenac Private Equity, of Chicago. Ten Berge apparently still lives in Birmingham, and his personal bottom line seems to be fine. He and his family are members of Greystone Country Club. On his LinkedIn page, Ten Berge describes his alliance with Frontenac:

Frontenac and I have partnered together to jointly pursue new investment opportunities in the consumer enthusiast markets, including outdoor and auto enthusiasts. We aim to create a solution that provides liquidity for selling shareholders, plus growth capital, operational resources, and executive support required to achieve the company’s vision. Our complementary operating and financial skills make us differentiated partners. . . .

Categories include, but are not limited to:
➢ Fishing ➢ Cycling
➢ Trail Sports ➢ Camping
➢ Hunting ➢ Camping
➢ Water Sports ➢ Snow Sports
➢ Wildlife Viewing ➢ Auto Accessories

Ten Berge provides insight about Frontenanc's "CEO-centric approach":

Frontenac is a leading private equity firm, based in Chicago. The firm focuses on investing in lower middle market buyout transactions in the food, industrial, and services industries. Frontenac works in partnership with proven operating leaders, through our executive-centric approach called CEO1ST, to identify, acquire, and build market leading companies through transformational acquisitions and operational excellence. The firm has built a leading franchise working with over 225 owners of mid-sized businesses, almost always families or founders, as they address complex transition issues of liquidity, management enhancement, and growth planning.

Ten Berge has a wealth of experience in a diversified industry that tends to produce plenty of revenue (Note: I grew up and live in Springfield, Missouri, home to Bass Pro Shops, so I have a better-than-average idea of how robust these companies can be.) From Ten Berge's LinkedIn profile:

I am an inspirational Executive Management Professional with career experience at leading consumer and sporting goods organizations including Kraft Foods, Frito-Lay, Wrigley, and PRADCO Outdoor Brands. I offer exceptional knowledge of marketing and the ability to align all functional business units surrounding business goals. By establishing effective strategies to guide businesses, I have delivered unprecedented growth levels, attaining record-setting results in key performance metrics throughout career.

Sounds like a smart guy. So, why wasn't he smart enough to steer clear of a sleazy outfit like Ashley Madison? That's not clear, but Ten Berge appears to have an enviable family life. His Facebook page is filled with family photos, including two children (Kyle and Megan Ten Berge, a University of Alabama nursing graduate; Kyle is a medic in the U.S. Army), as is the Facebook page for his wife, Leigh Ten Berge (who runs the Great Clips hair salon in Vestavia Hills).

The Ten Berge family
(From facebook.com)
Ron Ten Berge has been a major player in his industry. From the Fishing Tackle Retailer article about his dismissal at EBSCO:

The litany of brands that Ten Berge oversaw is mind-boggling. It reads like a who’s who of lure manufacturers in not only fishing, but hunting as well:

In fishing, REBEL, Booyah, YUM!, Lindy, Bandit, Bomber, Bomber Saltwater, Arbogast, Cotton Cordell, Creek Chub, Lazy Ike, Little Joe, Silver Thread, Thill, Smithwick and XCalibur. Add hunting brands Moultrie, Summit, Knight and Hale and Code Blue to that list and you not only begin to understand the depth of that task, but the powerful impact the position holds within our retail industry.

We sought comment from Ron Ten Berge for this post, but he has not responded to our queries.

Officer Scott Harrison nicely coordinates his lies, joining Debi Wade in suggesting that Carol broke her own arm by flailing about in backseat of patrol car


Scott Harrison
Missouri deputy Debi Wade, who wrote the bogus Probable Cause Statement that caused my wife, Carol, to be arrested, essentially claims that Carol broke her own arm by flailing about in the back seat of a patrol car after being arrested and handcuffed. What about other officers who gave written statements about events during our unlawful eviction in September 2015? It looks like they copied off Wade's homework. In law-enforcement terms, that probably is known as "coordinating your lies."

First, let's consider the words of Officer Scott Harrison, who played an uber curious role in all of this. He was the one who supposedly contacted David Shuler, my lawyer/brother, and advised him that I had placed a 911 call threatening to shoot anyone who attempted to evict us. On the day we were evicted, Harrison was one of the first officers through the door and pointed an assault rifle at my head. He also was the officer who drove Carol to jail and then to Cox North Medical Center, where he received word that her arm was broken.

A few days after that, according to discovery documents turned over to Carol in her criminal case, four officers on the scene concocted a colossal batch of lies to suggest Carol broke her own arm and cover up the truth -- that an officer, apparently Lt. Christian Conrad, broke her arm. From Harrison's written statement:

Lt. Conrad retrieved my patrol unit keys, and then he drove my patrol unit to the driveway to the south of our location. Lt. Conrad and I helped Carol to her feet and then I escorted her to my patrol unit (#313). Carol was twisting and turning herself in a resistive manner as I walked her to my patrol unit. I told Carol to calm down and step into the patrol unit. Carol seated herself in the patrol unit and situated herself, before I closed the vehicle door.

I went back to the residence and collected some paperwork that I had left inside. As I exited the residence, I heard Carol yelling/screaming, and then noticed she was throwing herself against the backseat and cage of my patrol unit. She did this multiple times in the time it took me to walk back to the vehicle and open the back passenger door. I asked Carol if she was alright. Carol yelled at me to take off the handcuffs and stated that her wrists were hurting. I had Carol lean forward and I checked the handcuffs for comfort again. I was able to place a finger between the handcuffs and Carol's wrist.

I then transported Carol to the Greene County Jail. During the transport I advised Carol of her rights under Miranda and she stated she understood her rights. Carol was calm and had placed her head against the rear passenger side window during the drive to the Jail. Carol also appeared to be sleeping at one point during the transport. Once at the jail, Carol complained about her left arm hurting. Carol had a visible scrape to her lower lip, which she made no complaint about. Carol stated the pain was more in the middle of her arm, near the elbow. I advised jail staff to have a nurse from the Medical Division check out Carol. I photographed Carol's injury to her lower lip at 15:19 hours at the jail.

For the record, Carol categorically denies flailing about in the patrol car and says she couldn't have done that even if she had wanted to -- which she didn't. We will present evidence in upcoming posts that shows she is telling the truth.

As for Scott Harrison, his world soon would get a lot more complicated. He and his colleagues would find it necessary to build a web of lies in an effort to cover their butts:

A nurse arrived and looked at Carol's arm, and I took a photo of the arm where she stated it was hurting. I photographed Carol's left arm/elbow at 16:01 and 16:02 hours at the jail, which did not show any bruising but did sow some minor swelling. It wasn't until after that, that Carol began complaining of "severe" pain to her left arm and elbow. The jail nurse stated that Carol would need to be checked out at the hospital before she could be admitted as an inmate into the Greene County Jail. I notified Lt. Wade that Carol would need to be transported to Cox North Hospital for care. I placed handcuffs in front of Carol just prior to transport. She stated that she was in no pain from the handcuffs. I transported Carol to Cox North Hospital without incident. Upon arrival at Cox North ER, Carol was placed in room #8 and was then seen by Dr. J. [Jock] Porter, M.D. During our time waiting in the ER, the bruising became much more visible, so I photographed Carol's left [elbow] again, at 19:09. This photograph shows swelling and severe bruising to Carol's left arm in the elbow area.

After Carol's left arm and elbow were X-rayed, Dr. Porter advised that it was broken just above the elbow and would require surgery. Dr. Porter scheduled a Cox Ambulance to transport Carol to Cox South Hospital for the actual surgery. I notified Lt. Wade of the status update, and she then notified Capt. [Jeremy] Lynn of the situation. Lt. Wade called back and advised that Sheriff Arnott authorized Carol to be released from the PC charges for Assault on LEO 3rd degree and Interfering with a Legal Process, and that we would present the case to the Greene County Prosecuting Attorney for review. I notified hospital staff and Carol Shuler herself that was released from custody prior to her being transported by ambulance to Cox South Hospital for surgery. Carol remained calm the entire time we were at the jail and hospital.

Harrison's statement tells us that Sheriff Jim Arnott authorized that Carol be "released" from charges, not just released from jail to receive treatment at the hospital. That appears to mean any charges were dropped. So what did Carol do to cause the charges to be reinstated in fall 2016 and for her to be re-arrested on January 30, 2017? Nothing in the documents we've seen suggests she did anything. But she still faces criminal charges.

Next, we will examine the written statements of two more officers.


(To be continued)








Tuesday, June 27, 2017

Maybe it's time to run the Capri Theatre out of business after it shuts down a showing of Siegelman documentary because of content about Leura Canary


(From flickr.com)
Montgomery's Capri Theatre has a history of bold, forward thinking. It was one of the few theatres in the country to show The Last Temptation of Christ, at a time (the late 1980s) when that was not necessarily a popular thing to do.

Today's management seems hell-bent on proving the theatre is managed by a bunch of Cro-Magnons. The Carpi has cancelled a showing of Atticus v. The Architect: The Political Assassination of Don Siegelman, a documentary about the prosecution of Alabama's former Democratic governor.

The film already has been shown in Birmingham and Atlanta, and a screening was set for July 8 in Montgomery. But that has been scrapped because, says theatre director Martin McCaffrey, the film portrays former U.S. attorney Leura Canary -- prosecutor on the Siegelman case -- in a "false and defamatory manner." Why is that a sensitive issue? Because Canary serves on the Capri's board of directors.

Now, that is insular and tribal thinking of the highest order -- and it suggests Alabama has gone backward, not forward, over the past 25 years or so.

How stupid is the Capri's action -- and McCaffrey's statement? Let us count the ways:

(1) Neither McCaffrey, nor any of the other board members, has a way of knowing whether the documentary, directed by Steve Wimberly, presents false information about Canary. If the film allegedly made false assertions directly about McCaffrey, or any other individual on the board, the directors might have an ethical leg upon which to stand. But Canary likely is the only member of the board who has first-hand knowledge about issues in the film, and the board apparently is blindly taking her word for things -- even though prosecutorial misconduct in the case has been widely reported in multiple news outlets. This is another case of white privilege and entitlement in Alabama. If Leura Canary claims a film's content is false -- even though she previously has made no such public showing -- then movie-goers in central Alabama are not entitled to watch the film and make up their own minds.

(2) "Defamatory" is a court term, with a specific legal meaning -- and McCaffrey likely has no idea what that is. By law, a defamation claim must be determined at trial, before a jury. It's not an issue that one person, not even a judge, can determine. That's because it involves First Amendment issues that have been treasured in this country for more than 200 years. The law holds that a judge cannot be a one-man censor in a definition case. But Martin McCaffrey seems to think he and his board can be one-man censors of the Siegelman documentary.

(3) By any definition, Leura Canary is a public figure. That means the bar for defamatory content is extremely high when applied to her. New York Times v. Sullivan sets the standard for a public figure -- information must be published with "actual malice" (actual knowledge of falsity or reckless disregard for the truth) in order to be defamatory. Translation: McCaffrey and his board have no clue what they are talking about.

(4) If Canary's actions in the Siegelman case were so noble, why has the U.S. Department of Justice been stonewalling for almost 11 years on Freedom of Information Act (FOIA) requests for documents about her actions. In fact, a case now is pending in federal court -- Joseph Siegelman v. U.S. Department of Justice -- and public records suggest documents were turned over for review to U.S. District Judge Madeline Haikala roughly three months ago, and we've still seen no sign of the documents being made public. Is Canary living in utter fear that the documents soon will become public, and that's why she's trying to hijack the Capri Theatre and its audience? Seems pretty darned likely to me.

Powerful evidence suggests Leura Canary was, in fact, part of a conspiracy to unlawfully prosecute Don Siegelman, so that Republican Bob Riley could become, and then remain, governor. From Josh Moon, of Alabama Political Reporter:

Canary was a federal prosecutor during Siegelman’s prosecution and ultimate conviction. Canary’s husband, Billy, was a powerful player in the state’s Republican Party and served as an advisor to eventual Gov. Bob Riley.

Leura Canary said she recused from the case against Siegelman, but there have long been allegations by Siegelman’s camp that she remained active throughout. A number of emails and other items – all detailed in the film – were discovered following Siegelman’s conviction.

I try to make limited use of terms like "outrage" here at Legal Schnauzer. But the Capri's actions are an outrage. Alabama citizens, from the Montgomery area and beyond, should protest the Capri until the Siegelman film is put back on the schedule. In the alternative, they should boycott the Capri until it goes out of business.

Don Siegelman himself said it well in a public statement:

The truth should trump the prosecutor's embarrassment at being exposed on the big screen for her wrongdoing.

The former governor nailed it -- and perhaps we are seeing signs that the Capri has outlived its usefulness. An "independent theatre," which is captive to the whims of a corrupt board member, perhaps is not worth having.

Bogus statements from Missouri deputies suggest Carol broke her own arm by flailing about in back seat of patrol car after being arrested and handcuffed


Officer Debi Wade
Missouri deputies, in written statements about our unlawful eviction, suggest my wife, Carol, broke her own arm by flailing about in the back seat of a patrol car after she had been arrested and placed in handcuffs.

We're not making this up. Is there any chance this actually happened? No, and we will provide proof that it didn't happen. But first, let's examine officer statements from the Criminal Investigations Case Report we received from discovery requests in the pending criminal case ("assault on a law enforcement officer") against Carol.

Let's begin with the narrative from Officer Debi Wade, which begins on page 2 of the report. That's the same Debi Wade who prepared the Probable Cause (PC) Statement against Carol. (Note: The Criminal Investigations Report and PC Statement can be viewed by clicking at the links above, and both documents are embedded at the end of this post.)

Officer Wade's written statements are revelatory on a number of levels, but here is the main one: Her PC Statement, dated 9/22/15 (13 days after our eviction) makes no mention of Carol's broken arm. In other words, the document upon which Carol's arrest is based gives no indication she was injured. Wade's Incident Report, dated 9/10/15 (one day after our eviction) states clearly that Carol's arm was broken. Why the discrepancy? That is one of dozens of questions raised by the officers' accounts.

Here is Officer Wade's account of Carol's trip to a patrol car and what supposedly happened once Carol was inside:

As soon as Lt. [Christian] Conrad returned with the car, he and Deputy [Scott] Harrison helped [Carol] up from the ground, and Deputy Harrison walked her to the back seat of the patrol car. Carol continued jerking her arms in an attempt to get her hands out of the handcuffs again. We explained to her that if she would relax and quit fighting the cuffs, that they wouldn't hurt her wrists.

Once she was detained in the back of the car, Deputy Harrison retrieved her [Missouri] ID from her purse, and then gave the purse to Mr. Shuler. Mr. Shuler was asked to leave the scene so that the movers could get to work. He sat in his car across the street, refusing to leave the area while we allowed the movers in the house and turned the keys over to them. When I walked past the patrol car a couple of minutes later, Carol was screaming and jerking her body all over the back seat and cage of the car very violently.

Deputy Harrison went over to check on her. He asked her if she was alright. She complained again that her wrists hurt, so he double checked the handcuffs again for comfort. The handcuffs still had enough room that he could put a finger between her wrist and the inner edge of the cuff. Carol, only then mentioned that her arm hurt, but she was not exhibiting signs of pain, aside from that one calm verbal [cue]. We talked with Deputy Harrison briefly about alerting the jail that she would need a psych evaluation upon arrival at the jail, due to her very erratic and violent behavior.

Now, we come to information that Officer Wade left out of the Probable Cause Statement used to justify Carol's arrest:

After Deputy Harrison checked out at the jail with Carol, he called to advise me that she had requested that medical staff look at her left arm. He said that she couldn't see anything wrong, but he photographed it, since she was complaining that it hurt. He said that after jail medical staff looked at her arm, they insisted that she needed to get medical clearance from the ER before they would admit her into the jail. Deputy Harrison took pictures of her arm again at the hospital, as it started to show signs of swelling and bruising just above her left elbow. The initial thought was that she may have dislocated it (her elbow) when she was thrashing about in the back seat of the patrol car. Since we had seen her throw her body against the back of the seat and cage violently on scene just prior to transport, and there was no complaint about her arm until after that, it was the only thing that made sense to us.

Once the X-ray came back, Deputy Harrison called again to advise that her arm was broken and was going to require surgery. He further stated that she would have to be transported by ambulance to Cox South for the surgery. He said that Carol had remained calm throughout the trip to the jail and hospital, never acting aggressively in the least. After notifying my chain of command of the status change, it was decided to release the P.C. charges on her and let the hospital know that she was being left on her own recognizance and was free to go when they were done with her. Deputy Harrison told Carol that the 3rd degree assault case would be submitted to the prosecutor's officer for her assault on a law enforcement officer.

There is so much false rubbish in there that I'm still trying to digest it all. This seems clear: Once Officer Debi Wade starts lying, she can't stop herself.

Carol Tovich Shuler
Here are three key takeaways from Wade's report:

(1) She essentially tries to blame Carol's broken arm on Carol, from flailing (while handcuffed) in the back seat of a patrol car;

(2) Wade knew that Carol was seriously injured when she wrote her Probable Cause Statement, but she said nothing about that in the document that was used to justify Carol's arrest.

(3) Wade admits that charges against Carol had been "released" due to a "status change." In plain language, that appears to mean, "We'd better drop these charges because we broke this woman's f-----g arm." Wade gives no indication why charges later were reinstated once they already had been dropped.

We have evidence that will prove Debi Wade is lying -- and that she should be referred for criminal prosecution. We will address her lies in upcoming posts. But first, let's look at statements from other officers on the scene.


(To be continued)









Monday, June 26, 2017

Megan Rondini's suicide, in the wake of alleged rape by a member of Tuscaloosa's wealthy Bunn family, shines bright light on Alabama's insular and toxic culture


Megan Rondini
(From smudailycampus.com)
The University of Alabama and the state's mainstream media reacted belatedly over the weekend to a story about a former UA student who killed herself after reporting that a member of an influential Tuscaloosa family had raped her -- only to see the city's "justice apparatus" react with a mixture of indifference and incompetence.

Megan Rondini's story had largely been ignored or covered up in Alabama for more than a year. But that changed last Thursday when BuzzFeed News broke a stunning story, "How Accusing a Powerful Man of Rape Drove A College Student to Suicide." Here is the sub-title to reporter Katie J.M. Baker's story: "When an Alabama college student told the police she was sexually assaulted, she did everything she thought she was supposed to do. She ended up killing herself."

Did that get your attention? It certainly got the attention of BuzzFeed readers. As of last night, the article had almost 1.9 million views in less than four days.

Why has the story generated a mixture of sympathy, disbelief, disgust, and outrage? Maybe it's because Rondini had leveled rape allegations against one of Tuscaloosa's elites -- T.J. "Sweet Tea" Bunn Jr., part of the family behind ST Bunn Construction, which works on projects statewide and claims to have paved every street in Tuscaloosa. Sonny and Terry Bunn, the brothers who currently run the company, were major donors to former Gov. Robert "Luv Guv" Bentley, and Terry ("Sweet T's" father) served on the Bentley transition team. The Bunns are about as entrenched in Tuscaloosa culture as you can get. Reports BuzzFeed, about Terry Bunn:

He’s also listed on rosters for the secretive “President’s Cabinet” at UA, an “invitation-only” alumni group that advises the president of the university. ST Bunn Construction says it helped build Tuscaloosa’s Crimson Tide practice field, and the brothers belong to the booster foundation that paid for renowned UA football coach Nick Saban’s $3.1 million home. Flight records show the Bunn's private jet often touched down near Crimson Tide away games last fall.

The booster group in question is the Crimson Tide Foundation, founded and chaired by Paul Bryant Jr., son of the late Hall of Fame coach, Paul "Bear" Bryant. ST Bunn Construction is listed as part of the Crimson Alliance, for donors who have given from $100,000 to $499,999 to UA athletics. The foundation is closely aligned with Bryant Bank, which Bryant Jr. founded. In 2004, the Crimson Tide Foundation reported $34 million in revenue, but since has stopped reporting to the IRS in public documents.

When Megan Rondini had a sexual encounter in July 2015 at T.J. Bunn's mansion -- Bunn claims the sex was consensual -- she unknowingly walked into a swamp of big money, white privilege, secrecy, and entitlement. The BuzzFeed article suggests that the Tuscaloosa Sheriff's Office made only a half-heart attempt to pursue Rondini's claim. Even a therapist at the University of Alabama said she could not help because she knew the Bunn family.

Since the BuzzFeed story broke, multiple news outlets have followed in recent days with accounts that portray Tuscaloosa as a dysfunctional college town where one is not supposed to report the misconduct of white elites. Here are examples:

* "A town comes together to protect man accused of sexual assault and his accuser commits suicide," Daily Kos, 6/22/17;

* "Alabama rape victim who killed herself was ‘failed by people meant to protect her’, says campus sexual assault campaigner," The Tab, 6/22/17

* "Alabama rape victim committed suicide after being ‘bullied’ by police protecting wealthy alleged attacker," Raw Story, 6/24/17.

The story went international over the weekend with  this report:

* "Parents of University of Alabama honors student, 20, reveal she was driven to suicide after accusing son of local influential family of rape," UK Daily Mail, 6/24/17.

From the Daily Mail report:
Under Alabama's rape law, victims must prove they 'earnestly' resisted their attackers, and the investigator who interviewed Megan, Adam Jones, decided that she hadn't done so against Bunn.

According to him, she hadn't 'kicked him or hit him,' so the investigator would conclude that no rape occurred.

Extensive news coverage apparently was enough to awaken the University of Alabama and the state's mainstream press from their slumber.

Bunn Construction
(From stbunn.com)
UA released a statement on Saturday, which proved mostly to be an exercise in ass covering. The statement reads in part:

"The University of Alabama has been deeply saddened by the death of Megan Rondini, and we continue to offer our sympathy to her friends and family.

Information published by news outlets this week has unfortunately ignored some significant facts. When Megan went to the hospital, a University advocate met her at the hospital to provide support and stayed with her throughout the examination process. Megan also received information from University representatives regarding services available to her on campus, including counseling through the University's Women and Gender Resource Center. When she sought counseling and her first therapist identified a potential conflict as defined by her professional obligations, Megan was immediately introduced to another therapist, who provided care and support. Additionally, the UA Title IX Office was in contact with Megan, including offering academic accommodations and helping to streamline her withdrawal when Megan elected to return to Texas. Because the reported incident occurred off-campus, the University's police department was not involved in the formal criminal investigation.

We hope these recent news accounts, which do not tell the full story, will not discourage others from reporting sexual assault or seeking help and support."

The Tuscaloosa News and al.com, both of which apparently were clueless about the story until BuzzFeed arrived on the scene, published stories on Saturday. (See here and here.) The al.com story states the Rondini family has hired Birmingham attorney Leroy Maxwell, and litigation is planned:

Her parents have hired Birmingham lawyer Leroy Maxwell Jr. of the Maxwell Firm to represent them in filing a federal Title IX complaint against the university, and with possibly other complaints.

Maxwell told AL.com the complaint will be filed by the end of June.

"Megan was loved by everyone who came in contact with her. Her loss is everyone's loss. Title IX, the University of Alabama, the Tuscaloosa Sheriff's department and the overall judicial system in Tuscaloosa let her down on every level. Through litigation our firm is committed to doing everything in our power to shine a light on Tuscaloosa's systemic problem with sexual assault," he said.

It appears Tuscaloosa's toxic culture helped deny Megan Rondini justice in life. Will her family receive some measure of justice now that she is gone?

Thursday, June 22, 2017

After 17 years of courtroom frustration and disappointment, Carol finally gets a victory she richly deserves, as Missouri trespass count is dismissed


Margaret Holden Palmietto
After 17 years of legal battles and being cheated at almost every turn, Carol and I experienced a first yesterday at the Greene County Courthouse in Springfield, Missouri. We had filed a motion showing that part of the opposing party's case had no basis in fact or law and was due to be dismissed. And -- gasp! -- the judge agreed, essentially saying, "That count is garbage, and it's outta here!"

We're talking about the trespass count in State of Missouri v. Carol T. Shuler (No. 1631-CR07731 at case.net). It wasn't a monumental legal victory, paling in comparison to, say, Brown v. Board of Education. And it was not a complicated or wide-ranging issue. The trespass count was the only matter on the table yesterday, and as we showed in a post on Monday, it was clear (under the law) how it had to be decided. In fact, we never saw any written opposition from the State on our Motion to Dismiss Count II. (The motion is embedded at the end of this post.)

But we've been in that position many times before. Time and again, we've had motions that had to be granted -- even motions with no opposition from the other side -- only to have judges (and yes, they were corrupt judges; there is no other way to put it) rule against us. It's happened in Alabama; it's happened in Missouri. It's happened in state court; it's happened in federal court. It's happened with white judges and black judges -- Republicans (mostly) and Democrats.

But Judge Margaret Holden Palmietto did not buy any of the State's BS yesterday -- and it offered up plenty. She was calm and reasoned and treated prosecutor Nicholas Jain with more tact than he deserved. But the judge, after listening to argument back and forth for about 10 minutes, essentially said, "Mrs. Shuler, you are right. This count is due to be dismissed."

I should point out that this was Carol's victory. Technically, I'm not a party to the case, but I very much was involved in all the events leading to the criminal charges against Carol. I saw every relevant event that happened, from a few feet away, and I know the charging documents are packed with lies from cops. But yesterday was a time for me to play bystander. I sat near the back of the courtroom, and in a facility with horrible acoustics, struggled to hear what was being said. You might say I was a highly engaged spectator -- and blogger/journalist.

But it was Carol's day, and her victory, and I was immensely proud of her. She didn't really do much, but sometimes, that's the best thing a client can do in a courtroom -- if you have a trustworthy attorney, sit back and let them (to borrow a phrase from Steve Winwood) "roll with it." That's what Carol did, and Public Defender Patty Poe did a cracker-jack job on Carol's behalf.

Without sounding like a suck-up (I hope), I also have to give props to Judge Palmietto. She is the first judge I've seen in 17 years who shows signs of having the integrity and intelligence to decide a case correctly -- and stand up to powerful and corrupt forces on the other side. I continue to brace myself for the possibility that she might turn in the other direction, but for now, I think she rocks.

Poe's primary work came in preparing a motion that really could not be beaten. The key point was that the Probable Cause Statement against Carol said not one word about trespass; it presented zero evidence to support the count, so it had to be dropped. The facts and the law were stacked in our favor. But that doesn't mean the morning didn't feature some drama -- or black comedy, depending on your viewpoint.

A trip to the courthouse would not be complete without some ugliness and Nicholas Jain provided it yesterday. Prosecutors apparently feel it is their duty to argue the slightest motion, even though they have no valid legal or factual argument to stand on. Jain tried to pull one out of his ass anyway, and in the process, made himself look like an utter boob. He also confirmed what many citizens think about prosecutors -- that they only care about winning and have zero interest in justice.

Based on what I could hear, and what Carol reported to me later, here are some of the "arguments" Jain appeared to make yesterday:

(1) Hey, let's change the charging documents!

Jain's position: We need to schedule a hearing for this afternoon, so I can prepare an amended Probable Cause Statement and Misdemeanor Information, and we can argue them then.

Palmietto's position: Bub, these alleged offenses took place in September 2015, and the one-year statute of limitation ran out in September 2016. It's now June 2017, nine months after time for any amendment, and you decide your charging documents need to be changed? Not gonna happen. Next.

(2) But . . . but . . . she pushed on the door

Jain's position: Mrs. Shuler pushed against the door when officers tried to enter the apartment. This must prove something, but I have no idea what that might be.

Palmietto's position: If you don't know what argument you are trying to make, I can't help you. What does the door have to do with trespass? Next.

(3) But . . . but . . . she filed a notice of appeal on the eviction

Jain's position: Mr. and Mrs. Shuler filed a notice of appeal, so that means Mrs. Shuler knew about the eviction.

Palmietto's position (best I can tell): And that's supposed to mean she "knowingly" trespassed? Are you on acid? The filing of a notice of appeal means the Shulers believed the trial court got the eviction ruling wrong. They went to the trouble and expense of filing a notice of appeal, and they did it in a timely fashion that, by law, put a stay on the eviction. That tells me that Mrs. Shuler believed she was lawfully at the apartment, that she did NOT knowingly trespass. Again, are you on acid?

Carol Tovich Shuler
Carol and I have "won" a lawsuit before. The "INP and DIS" case my brother, Paul, filed -- essentially seeking to have us declared wards of the state -- wound up in our favor. But it was dismissed on Paul's own motion. Unless I'm forgetting something, yesterday was the first time a judge looked at a significant motion, heard both sides of the argument, and ruled correctly, in our favor.

When Carol and I walked out of the courthouse and into the bright sunshine -- and oppressive Missouri heat -- we looked at each other as if to say, "How do you react when you win in court? Are we supposed to high five?"

To be sure, we are not out of the woods on this criminal matter. Both counts against Carol are misdemeanors, but the remaining count -- "assault" on a law enforcement officer -- is the more significant of the two. Based on the charging documents, the "assault" count is every bit as weak as the trespass count was. In fact, it should be dismissed on almost a half dozen grounds -- and it's been established that it's too late for the prosecution to amend its flawed documents. But will Palmietto continue to show the kind of integrity and level head she displayed yesterday? We hope so, but one never knows if the law actually is going to rule the day in a courtroom.

The next hearing in Carol's case is set for July 19, and we have our first extended meeting with Patty Poe today. We don't know what's around the next corner, but for now, we have one victory in our pocket -- and that's a new. and most welcome, feeling.

So, how did we celebrate? Well, Carol has grown fond of the cupcakes at Price Cutter supermarkets here in fashionable Springfield, so we stopped and got a half dozen of those. I got a cup of frozen chocolate yogurt (with sprinkles!) at a local establishment. We were able to enjoy those treats only because of loyal readers and supporters who have helped keep us afloat.

We never would have made it to yesterday's victory without the help of others. I guess I have a decent vocabulary, but I don't have the words to adequately express my thanks to some very special people who have saved us. Perhaps there will be more victories in the future -- and justice, finally, will prevail.



Wednesday, June 21, 2017

Newly discovered document proves that Missouri landlord Trent Cowherd, and his rogue lawyer Craig Lowther, conducted an unlawful eviction against us


Trent and Sharon Cowherd
A newly discovered document proves that Missouri landlord Trent Cowherd and his thuggish lawyer, Craig Lowther, conducted an unlawful eviction against us -- and they did it intentionally or via raging ignorance and incompetence.

We're talking about the Rent-and-Possession (R and P) Petition designed to have Carol and me removed as tenants from property at 4070 S. Fort Ave. in Springfield, Missouri. The petition has been in the case record since August 5, 2015, the day it was filed. But it is "newly discovered" in the sense that we had never seen it until recently -- and we never were served with it.

I had noticed an item titled "Petition" in the court file, but I assumed it was a copy of an R and P form that had been attached to our door in various forms during the eviction proceeding. On a recent visit to the Greene County Courthouse, I decided to print out the petition -- and, lo and behold -- it was not the form; it was a document, like a complaint in a lawsuit, upon which mine eyes had never feasted.  We could see immediately that it was most informative. What does it tell us?

(1) It confirms what we already knew: That Cowherd violated Missouri law by instituting eviction proceedings long before our rent was late by at least one month;

(2) It confirms that we never were lawfully served, as I had argued in our Counterclaim and Motion to Quash Execution, and that means the court had no jurisdiction over my wife, Carol, and me.

(3) The notion that Carol unlawfully was on the premises -- even though I told the Cowherd representative on the day I signed the lease that my wife was in Birmingham gathering our belongings and would be joining me in Missouri -- apparently originated with Cowherd, perhaps via a member (or members) of my family. The Cowherd rep OK'd Carol's presence in the apartment but did not write her name down as a tenant; the rep filled out the Rental Agreement and only allowed me to sign my name and fill in information about our pets. There is evidence in the lease that I told Cowherd about all the living beings that would be living in the apartment, and they approved them. But the eviction petition claims Carol was on the premises unlawfully -- and that is curious because Carol now faces a trespass charge in the bogus criminal case brought by the Greene County Sheriff's Office and Prosecuting Attorney Dan Patterson.

Documents in the criminal case provide zero information about the trespass count -- and it is due to be dismissed when Carol returns to court today -- and we've never had a clue about what "facts" it is based. That changed when we discovered Cowherd's Petition.

(Note: The Petition, Counterclaim, Motion to Quash, and Rental Agreement are embedded at the end of this post.)

Missouri law is clear that eviction proceedings cannot begin until a tenant's rent is late by at least one month. Here are the words straight from RSMo 535.120, which apparently has existed in one form or another since at least 1909. Why would Cowherd and Lowther be unaware of tenant-landlord law that has been around for more than 100 years? Hard to say. Here's how the law currently reads:

Whenever one month's rent or more is in arrear from a tenant, the landlord, if he has a subsisting right by law to reenter for the nonpayment of such rent, may bring an action to recover the possession of the demised premises.

That language seems pretty straightforward; a tenant is not a candidate for eviction proceedings until he is behind on rent by at least one month. But Cowherd and Lowther can't figure it out? Consider this language from the petition that Lowther filed on Cowherd's behalf:

4. That the Defendants are in arrears and there is now due unpaid rent in the amount of Seven Hundred Ninety Five Dollars and No Cents ($795.00).

5. Demand has been made for the rent, but has not been paid to the Plaintiff.

6. That said Lease Agreement signed by the Defendants provided for late charges and reasonable attorney fees should the employment of an attorney be necessary in order to collect the monies owed Plaintiff.

Let's address a few problems that arise from this language in Cowherd's petition:

(A) Our July rent had been paid, and the petition is dated August 5, 2015. So we're talking about the August rent here -- and on its face -- the petition shows that rent is late by five days. Cowherd makes no mention of the RSMo 535.120 requirement that rent be late by at least one month. He makes no mention that our rent was not even close to being late by one month. He makes no mention that he had zero grounds to institute eviction proceedings against us.

Craig Lowther
(B) Cowherd never made demand for rent. Instead, the company placed a Notice to Vacate on our door, giving no reason as to why we were to leave. When I called the office to inquire about the notice, I was told it was because my mother (Gondy Shuler) wanted off the lease as co-signer, and we had not qualified on our own. I noted that no one from Cowherd had informed us that we were to qualify on our own. And when I asked where such a provision was in the lease, the Cowherd rep could not answer and simply changed her tune to say, "I don't have to renew a lease with you, and we are deciding not to renew the lease." I taped the phone conversation and entered it into the court record, and when pressed under oath, a Cowherd rep admitted there was no such provision in the lease. This was clear evidence of breach of contract, which was part of our counterclaim that never got heard.

(C) The Lease Agreement does allow for late charges, but Cowherd never sought late charges because it never demanded the August rent at all. It simply told us to leave, for reasons not found in the lease. More importantly, late fees are proper under the lease, but attempted eviction is not proper under state law until rent is late by at least one month.

As for lack of unlawful service, we addressed that in our Motion to Quash Execution:

The judgment in this case is void due to improper service. Plaintiff Trent Cowherd ("Cowherd") elected to use the posting-mailing form of service allowed in landlord-tenant cases under RSMo. 535.030(2). But the docket in this case shows the petition never was mailed to Shuler. Missouri courts have held that "proper service of process must be accomplished before a court can obtain jurisdiction over the person or property of defendant." Reisinger v. Reisinger 39 S.W. 3d 80 (Mo. App. E.D., 2001). Further, Missouri courts have held: "[A] personal judgment rendered by a court without personal jurisdiction over a defendant is void and may be attacked collaterally." Crouch v. Crouch, 641 S.W. 2d 86 (Mo., 1982). Shuler raised the defenses of lack of personal jurisdiction and insufficiency of service of process in his answer, before ever appearing in court. That means the waiver provisions of Rule 55.27(g)(1)(B) were not triggered, contrary to the ruling of the trial court on this issue." A defending party who wishes to raise defenses of lack of personal jurisdiction, insufficiency of process, or insufficiency of service of process must do so either in a pre-answer motion or in the party's answer." Worley v. Worley, 19 S.W. 3d 127 (Mo., 2000).

The Notice of Eviction in the instant case also was improperly served. Missouri law holds, "The Missouri Eviction Notice must be served either personally on the tenant or by leaving it with a person at least 15 years of age who lives on the property. If no one is present, the server may post the demand and complete a sworn affidavit attesting to service." According to the docket in this case, no sworn affidavit attesting to service of the eviction notice is on file. That means service is unlawful, and said eviction notice is due to be quashed.

The service problems in our eviction case, which mean the judgment was void, only grew when we discovered Cowherd's R and P Petition in the court file about 10 days ago. We never were served with that either, had never seen it until we happened to stumble upon it during a courthouse visit on other matters.

Bottom line? We were kicked out of our home, had most of our physical possessions stolen by Cowherd's eviction crew, Carol had her arm broken, and I had an assault weapon pointed at my head . . . all because of a court judgment that was void on multiple grounds.

That sounds pretty grim, but we have discovered a sliver of light. The claim that Carol was unlawfully on the premises . . . well, there is some comedy involved in that. We will explain in an upcoming post.











Tuesday, June 20, 2017

Ashley Madison customers revealed: Thomas T. Lamberth Jr., Compass banker who was married to eating-disorders and sex-addiction therapist, appears at affairs site that failed to protect client data


Tom Lamberth Jr.
(From bbvacompass.com)
A vice president and mortgage-banking officer at a major Birmingham bank appears as a paying customer at the Ashley Madison extramarital-affairs Web site, according to publicly available documents.

Thomas T. Lamberth Jr., a 2003 Auburn University graduate, has worked at BBVA Compass Bank since 2007. He is based at Compass' Valleydale Road location and has expertise in construction and renovation financing, conventional and jumbo loans, first-time home buyer loans, and government loans.

Based on published reports, it appears Lamberth recently was divorced. He was married to Amber Parris Lamberth, a therapist specializing in eating disorders and sex addiction at The Highlands Treatment Center. She has a background in social work, and this is from her 2013 bio at The Highlands:

Amber Lamberth is a primary therapist at the Highlands Treatment Center, a trusted Castlewood affiliate in Birmingham, AL. Amber has worked with clients with eating disorders for the past five years in various levels of care. Amber shared that “When I first started in this field after graduate school, I thought this is a population that I am passionate about working with, but I wasn’t sure if this was the perfect fit for me. I am in recovery from an eating disorder, and I remember that very dark time in my life. I wanted to help others and felt I could relate to their journey. What I have discovered over the last five years is that this is what I am supposed to do with my life, this is my purpose, and I always want to work with clients with eating disorders.” 
Amber shared the she believes that “full and lasting recovery is possible for my clients. Every client that I treat is completely unique. What I love about working with these clients, and also what is most challenging about working with these clients, is that there is no guidebook. No one magic plan for all clients. Each person is unique and requires a unique approach.” 

Amber Parris
(From facebook.com)
 Amber is proud of the team that has been assembled at The Highlands Treatment Center. “I love the people that I work with. We worked together at another treatment center and had great relationships, so coming to work each day to collaborate with some of my best friends is an amazing experience.”
Amber is also excited to pursue her current area of interest which is the intersection of eating disorders and sexual addiction. She is a candidate for the Certified Sex Addiction Therapist designation and has a particular interest in issues of intimacy and sexual addiction in eating disorders. 
Amber received her Master’s Degree with Honors from the University of Alabama. She is a Licensed Clinical Social Worker and a member of the National Association of Social Workers. Amber previously worked at a residential and partial hospitalization eating disorder treatment facility in the state of Alabama. She also has training and experience in treating severe mental illness at both the inpatient and outpatient levels of care. In addition to her specialization in eating disorders, Amber has additional training in symptoms of self-harm, suicidality, trauma, and sexual addiction. She has had specialized training and experience in Dialectical Behavior Therapy, Acceptance and Commitment Therapy, and Prolonged Exposure for PTSD. Amber is committed to helping clients rediscover their sense of self and reconnect with their values and purpose to drive them towards recovery.

Amber Lamberth sounds like a first-class individual, who is trying to make a difference in the world. Her current bio at The Highlands lists her name as Amber Parris, as does her Facebook page. It appears the Lamberth marriage is no more.

Property records show the Lamberths have owned at least two properties in Birmingham, although it does not appear either was their primary residence. The most recent was at 5713 5TH TERRACE S BHAM AL 35212. It's possible Tom Lamberth is a house flipper, which might be an attractive past time for a mortgage banker.

Did Tom Lamberth's activities at Ashley Madison, or similar activities, contribute to the failure of his marriage? We sought to pose that question, and others, to him, but (so far) he has not responded to our queries.


Previously:

Article with links to 1-20 in Ashley Madison series

(21) Craig Oliver, attorney, Springfield, MO (1/24/17)

(22) Craig Lowell, attorney, Wiggins Childs, Birmingham (1/26/17)

(23) Thomas Mancuso, tax attorney, Montgomery, AL (2/16/17)

(24) Nicholas Arciniegas, attorney, Washington, D.C. (2/21/17)

(25) Griffin McGahey, vice president, High Cotton USA, Birmingham (3/16/17)

(26) Matthew Couch, attorney, Cabaniss Johnson, Birmingham (3/23/17)

(27) Dr. Keron Vickers, chiropractor, Birmingham (4/4/17)

(28) D. Paterson Cope, president, wealth management, Birmingham (4/20/17)

(29) Shawn Baker, developer, Blackwater Resources, Birmingham (4/24/17)

(30) David Deusner, attorney/forensics, Control Risks, Birmingham/Washington, D.C. (4/26/17)

(31) David J. Harrison, attorney, Geneva, AL (6/8/17)

(32) Michael Mullis, managing partner, Kelley and Mullis, Birmingham (4/12/17)

(33) David Healy, attorney, Ozark, MO (6/15/17)

(34) Tom Layfield, executive director of ALRBA, Montgonery, AL (6/19/17)

My wife, Carol, returns to court on Wednesday, and at least one of two charges against her should be dismissed, leaving only the bogus "assault" claim


Carol Tovich Shuler
My wife, Carol, returns to court on Wednesday (6/21), and she will be armed with a document that should prompt dismissal of at least half of the charges against her.

Public Defender Patty Poe has filed a Motion to Dismiss Count II, which essentially states that the trespass charge against Carol is not supported by facts sufficient to support a finding of probable cause to believe the offense occurred. (The Motion to Dismiss Count II can be viewed by clicking on the link above; also, it is embedded at the end of this post.)

(Note: Carol's next court appearance originally was set for June 14, but a continuance was granted, pushing it back one week.)

If the trespass charge in Count II is dismissed, that will leave only Count I -- the alleged misdemeanor charge of "assault on a law enforcement officer." There are no facts to support that charge either, as Carol pointed out in her own Motion to Dismiss before Ms. Poe came on board, But for now, we are focusing on getting the trespass charge out of the way.

One reason is that we've met with Ms. Poe for only about 10 minutes, and she likely needs more information from us about the unlawful eviction that led to a deputy breaking Carol's arm, and bogus charges being filed against her. Plus, Ms. Poe has explained that the system moves slowly -- it takes quite a while for documents to flow from the court to the Public Defender's office, for example -- so we are trying to be patient. (For the record, Carol is better at this patience thing than I am.)

As for the Motion to Dismiss the trespass charge, Ms. Poe points out that Missouri law requires a Misdemeanor Information (MI) be supported by a Probable Cause (PC) Statement. The PC Statement, by law, must "state facts that support a finding of probable cause to believe a crime was committed and that the accused committed it."

The charging documents against Carol, taken together, fall way short of their burden on the trespass count. Ms. Poe states that Missouri law "provides that the offense of trespass in the first degree requires that the defendant knowingly remained unlawfully in an inhabitable structure."

Did the prosecution meet that burden? Not even close. Writes Ms. Poe:

The statement of probable cause filed herein fails to state facts sufficient to support a finding of probable cause to believe that this offense occurred, in that nowhere in the probable cause statement does it allege defendant remained in an inhabitable structure unlawfully and knowingly.

In fact, the PC Statement does not say a word about trespass, meaning there are zero facts to support the charge. What does that mean? Ms. Poe spells it out:

As such, the Misdemeanor Information filed herein is insufficient to confer personal jurisdiction over Defendant and, therefore, all proceedings subsequent to the filing of the Misdemeanor Information herein are void and of no force and effect.

I like the way that sounds, and the same could be said regarding the "assault on a law enforcement officer" charge in Count I. But for now, I will try my best to remain patient and let Count I play out on another day. There is no question that Ms. Poe is correct on the facts and the law regarding Count II, and at a minimum, Carol should leave the courthouse tomorrow with half of the charges against her dismissed.







Monday, June 19, 2017

Ashley Madison customers revealed: Tom Layfield, executive director of the Alabama Road Builders Association, appears at extramarital-affairs Web site


Tom Layfield
(From albra.org)
The executive director of the Alabama Road Builders Association (ALRBA) appears as a paying customer at the Ashley Madison extramarital-affairs Web site.

Tom Layfield became head of ARBA in 2013, after serving as vice president of governmental affairs for the Alabama Bankers Association. Layfield clearly is strongly aligned with the corporate and political worlds in Alabama. From his bio at the ARBA Web site:

Tom Layfield, Vice President of Governmental Affairs for the Alabama Bankers Association, was named Executive Director of the Alabama Road Builders Association in August 2013, succeeding Billy Norrell.

“Bringing Tom into the road building family presents a tremendous opportunity for ARBA,” said 2013 ARBA President, Craig Fleming. “I would like to thank Chris Newell (Search Committee Chairman) and the rest of the committee for their tireless efforts during this transition. The committee came to a unanimous decision on this important choice. We had a strong list of candidates expressing interest in this position and are honored by their participation. In the end, Tom is the candidate who best fit our needs.”

Lauren Layfield
(From hatteam.com)
 “It is a real thrill to be named Executive Director of the Alabama Road Builders Association,” said Layfield. “I will do my best to serve the needs of the membership as Billy always did. It is an honor to join such an elite organization – one that is so well thought of throughout all of Alabama. I am greatly appreciative of the board for this opportunity and look forward to hitting the ground running.”

Layfield has more than 15 years of association management and governmental affairs experience. He and his wife Lauren live in Montgomery.

Lauren Layfield works at Sandra Nickel Realtors in Montgomery.  From her bio at the company's Web page:

If you are looking to buy high-end Montgomery area real estate or that perfect first home, contact Lauren Layfield. She is conscientious, respectful, smart, straightforward and a competitive buyer specialist.

Lauren, and her husband, Tom – who is executive director of the Alabama Road Builders Association, both were graduated from Auburn University. They have three Boykin Spaniel dogs, and spend their free time boating, reading, and relaxing on Lake Martin or at the Montgomery County Club. She enjoys teaching Pure Barre, playing tennis and traveling to visit family. Lauren is originally from Lexington, Kentucky, met Tom while working in Washington, DC, and they have lived in Midtown since 1996.

We sought comment from Tom Layfield regarding his activities at Ashley Madison, but he has not responded to our queries.

Previously:

Article with links to 1-20 in Ashley Madison series

(21) Craig Oliver, attorney, Springfield, MO (1/24/17)

(22) Craig Lowell, attorney, Wiggins Childs, Birmingham (1/26/17)

(23) Thomas Mancuso, tax attorney, Montgomery, AL (2/16/17)

(24) Nicholas Arciniegas, attorney, Washington, D.C. (2/21/17)

(25) Griffin McGahey, vice president, High Cotton USA, Birmingham (3/16/17)

(26) Matthew Couch, attorney, Cabaniss Johnson, Birmingham (3/23/17)

(27) Dr. Keron Vickers, chiropractor, Birmingham (4/4/17)

(28) D. Paterson Cope, president, wealth management, Birmingham (4/20/17)

(29) Shawn Baker, developer, Blackwater Resources, Birmingham (4/24/17)

(30) David Deusner, attorney/forensics, Control Risks, Birmingham/Washington, D.C. (4/26/17)

(31) David J. Harrison, attorney, Geneva, AL (6/8/17)

(32) Michael Mullis, managing partner, Kelley and Mullis, Birmingham (4/12/17)

(33) David Healy, attorney, Ozark, MO (6/15/17)

Missouri officials trample Carol's Sixth Amendment rights, by denying her the opportunity to "confront her accuser" -- or to even know his or her name


(From legalcoffee.com)
How many ways can Missouri authorities violate one person's constitutional rights? In the case of my wife, Carol -- falsely charged with "assaulting a law enforcement officer" and trespass -- we've shown they violated her Fourth Amendment right to be free from unlawful search and seizure. Carol has filed a motion to have the charges dismissed on Fourth Amendment grounds. (See document embedded at the end of this post.) But the constitutional violations hardly end there.

What about Carol's Sixth Amendment right to "confront her accusers in a criminal case," which is known as the Confrontation Clause. In essence, it holds that if someone accuses you of a crime, you have a right to know who that person is -- and you have a right to confront that person via cross-examination at trial. Historically, the Confrontation Clause has been considered fairly important in the U.S. justice system; it prevents an anonymous individual from accusing someone of a crime and then hiding from the consequences of making an accusation that might be false.

But that is exactly what is happening in Carol's case -- and it suggests that word of the Confrontation Clause, proposed to Congress in 1789, has not reached outposts such as Springfield, Missouri.

Charging documents in Carol's case suggest she allegedly trespassed and committed two acts of "assault" on law enforcement officers -- one by "barreling headfirst" into Officer Debi Wade, and one by pushing Officer Jeremy Lynn after he had burst through the door of our duplex apartment to begin an unlawful eviction. But the Probable Cause (PC) Statement and Misdemeanor Information (MI), taken together, tell a curious story. In fact, the two documents conflict wildly.

In the MI, Prosecuting Attorney Dan Patterson charges Carol with trespass and states evidence to support the charge will be in the PC Statement. Just one problem: The PC Statement says not one word about trespass. In other words, the charge has zero evidence to support it, and by law, must be dismissed. (More on that in an upcoming post.)

In the PC Statement, Officer Debi Wade claims Carol "barreled headfirst" into her, and that is laughably false. (I saw the interaction between Carol and Officer Wade from about 15 feet away.) But regardless of what I think (and know) about Wade's claim, PA Patterson doesn't think much of it either. He doesn't charge Carol with it, so that is out the window already.

That leaves only the allegation that Carol pushed Officer Jeremy Lynn, which also is laughably false. (I saw that interaction from about five feet away.) But problems with that charge go way beyond its falsity. Consider these words from Officer Wade's PC Statement:

Upon initial contact in the entryway of the residence, Roger's wife, Carol T. Shuler, physically assaulted Capt. Jeremy Lynn. I was not witness to that assault, however, I was advised that Carol first pushed the door from inside when Capt. Lynn attempted entry with the key, then got physical with him once inside the threshold and repeatedly pushed him.

Notice what is happening here: Wade admits she did not witness these events, but claims an unknown person -- someone who apparently has no name -- "advised" her of what happened. This amounts to what might be called "sub-hearsay." It likely would be inadmissible hearsay for someone with a name -- say, Officer Joe Jones -- to "advise" Wade of what happened. But this is worse than hearsay; as we noted in an earlier post, it's like being accused of a crime by a "ghost," someone from the spirit world who cannot be seen, heard, or identified by name.

On the surface, this notion is so absurd as to be almost comical. But it's serious business; Carol has been arrested and incarcerated twice -- and faces bogus criminal charges that could send her to jail for a year -- based on the word of a ghost. And it might be the most blatant violation of Sixth Amendment rights in the history of the United States.

Has Carol had an opportunity to "confront her accuser"? Hell, she doesn't even know his or her name.

Typically, the right to confront your accuser involves cross-examination at trial, and Carol's case has not reached that point. But Crawford v. Washington, 541 U.S. 36 (2004), one of the best-known Sixth Amendment cases in modern history, makes it clear the Confrontation Clause goes beyond trial proceedings. From Crawford:

The text of the Confrontation Clause reflects this focus. It applies to "witnesses" against the accused — in other words, those who "bear testimony. . . . " An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.

Various formulations of this core class of "testimonial" statements exist: "ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, . . . statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, . . . " 
Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath was not dispositive.

Let's review what happened in Carol's case, based on the standard set out in Crawford:

(1) Someone made a formal statement to a government officer, "bearing testimony" against Carol;

(2) It was in an affidavit, a form of ex parte testimony to which the Sixth Amendment applies;

(3) It reasonably is expected to be used "prosecutorially," at a later trial.

(4) It was a statement taken by a police officer in the course of interrogations.

The term "at a later trial" indicates the Confrontation Clause applies to pre-trial activities, including the filing of an affidavit, such as a PC Statement. For good measure, a Missouri case styled State v. Stewart (MO Ct. of App., 2009), borrows from Crawford to drive home the same point. From Stewart:

Finally, while "[t]he Sixth Amendment's Confrontation Clause provides that, '[i]n all criminal prosecutions, the accused shall enjoy the right . . .  to be confronted with the witnesses against him,'" Crawford v. Washington, 541 U.S. 36, 42 (2004), that safeguard applies only if the out-of-court statement was "testimonial" in nature. The Court in Crawford did not give a "comprehensive definition of 'testimonial'" but stated that "it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations."

Bottom line: The Sixth Amendment's Confrontation Clause ensures that you cannot be accused of a crime by a "ghost." Your accuser must be identified, even in pre-trial documents, and that has not happened in Carol's case. It means she never should have been arrested (twice), incarcerated (twice), or subjected to any criminal proceedings.

It's had to imagine anyone's Sixth Amendment rights ever being battered in a more flagrant fashion. Judge Margaret Holdem Palmietto should have dismissed the case against Carol and issued sanctions against the cops and prosecutors responsible for it. That hasn't happened yet, but it had better happen soon. The law demands it.



 

Thursday, June 15, 2017

Ashley Madison customers revealed: Ozark, MO attorney David Healy appears on board of "pro life" pregnancy center and at extramarital-affairs Web site


David and Sarah Healey, with children
(From facebook.com)
An estate-planning attorney in the burgeoning town of Ozark, Missouri -- just minutes south of Springfield, in the southwest corner of the state -- appears as a paying customer at the Ashley Madison extramarital-affairs Web site.

David Healy, based on images at his Facebook page, is quite the family guy. It's just that his family activities include having a paid account at Ashley Madison. And the hypocrisy does not stop there; he also serves on the board of a "pro life" pregnancy center.

Ozark sits in the heavily Republican Christian County, between Springfield and country-music mecca Branson. The town had fewer than 3,000 residents when I graduated from the University of Missouri in 1978. Now, it has an estimated population of almost 20,000, with new subdivisions sprouting in every direction.

Images at their Facebook pages show that David and Sarah Healy have two young children. Property records indicate they live in the Woodfield subdivision. David is a partner at the Appleby Healy law firm, with its office on the historic square in Ozark. Sarah is an administrative assistant at the firm. From David Healy's bio at the law firm Web site:

David graduated from the University of Missouri School of Law in 2003, after which time he served the citizens of the State of Missouri first as a law clerk for the Missouri Court of Appeals and then as an Assistant Greene County Prosecuting Attorney. After entering private practice with Ingold and Associates, LLC to focus on estate planning and probate and trust litigation, David later formed the law firm of Imhof and Healy with Daniel W. Imhof. When Mr. Imhof became a Greene County judge, David and his brother Douglas formed Healy and Healy in 2007, wherein David maintained a broad trial practice ranging from criminal defense at both state and federal trial courts and at the federal courts of appeals to civil litigation including personal injury matters, family and juvenile matters including contested adoption proceedings, and probate and trust litigation. David also performed a substantial amount of transactional work for a number of local businesses and estate planning for numerous southwest Missouri families during his time with Healy and Healy.

In January of 2014 David merged his practice with the practice of David N. Appleby forming the firm of Appleby Healy, Attorneys at Law, P.C. David continues his representation of local southwest Missouri families in a wide range of legal matters from criminal defense to commercial litigation while focusing his practice more on the estate planning needs of his clients.

According to the bio, Healy is active in the community:

David serves on the Board of Directors of the Missouri Association of Criminal Defense Lawyers, and is a member of the Missouri Association of Trial Attorneys, Greene County Estate Planning Council, the Springfield Metropolitan Bar Association, the Christian County Bar Association, and the Missouri Bar. David also serves on the Board of Directors of the Springfield Pregnancy Care Center, is a member of the Rotary Club of Springfield, and is an active member of his church.

That last highlighted item is of particular interest. The Springfield Pregnancy Care Center (PCC) is a non-profit organization that provides pregnancy-related services to seven counties in Southwest Missouri and is funded by the contributions of individuals, businesses, foundations, and churches within the community. Here, from the "About" page on its Web site, are the PCC's services:

Services We Provide

* Pregnancy Testing Program

* Mentoring and Enrichment Programs

* Ultrasound Program

* Healthy Relationship Programs

* Healthy Pregnancy Classes

* Parents and the Law

* Fatherhood Program

* Community/Medical Referral

* Family Support Program

* Labor and Birth Courses

* Adoption Education

* Lactation Consulting

* Baby and Maternity Resources

* Smoke-free Babies

* Community Presentations 
* Choices Project

You will notice that abortion services are not provided. That's fine, of course, but it drives home two points: (1) Springfield PCC takes only a "pro life" approach, and it does not offer a full range of pregnancy-related services; (2) David Healy's presence on the board presents a heaping helping of hypocrisy.

The Finley River, near downtown Ozark, MO
(From elitephotoart.com)
It seems axiomatic -- to borrow a phrase that lawyers throw around -- that extramarital affairs are a significant cause of unwanted pregnancies. So how does David Healy come to sit on the board of a "pro life" organization -- one that acts as if abortion services do not exist -- while his Ashley Madison account suggests he has tried to engage in one of the very behaviors that drive women to seek abortions?

We sought to pose that question, and others, to Mr. Healy. But he has not responded to our queries.

This is Healy's bio from the PCC board members Web page:

David Healy has served on Pregnancy Care Center’s Board of Directors since 2013. Mr. Healy is a partner with Appleby Healy, Attorneys at Law, P.C., and attends Second Baptist Church. David is currently Vice President of the Board.


Previously:

Article with links to 1-20 in Ashley Madison series

(21) Craig Oliver, attorney, Springfield, MO (1/24/17)

(22) Craig Lowell, attorney, Wiggins Childs, Birmingham (1/26/17)

(23) Thomas Mancuso, tax attorney, Montgomery, AL (2/16/17)

(24) Nicholas Arciniegas, attorney, Washington, D.C. (2/21/17)

(25) Griffin McGahey, vice president, High Cotton USA, Birmingham (3/16/17)

(26) Matthew Couch, attorney, Cabaniss Johnson, Birmingham (3/23/17)

(27) Dr. Keron Vickers, chiropractor, Birmingham (4/4/17)

(28) D. Paterson Cope, president, wealth management, Birmingham (4/20/17)

(29) Shawn Baker, developer, Blackwater Resources, Birmingham (4/24/17)

(30) David Deusner, attorney/forensics, Control Risks, Birmingham/Washington, D.C. (4/26/17)

(31) David J. Harrison, attorney, Geneva, AL (6/8/17)

(32) Michael Mullis, managing partner, Kelley and Mullis, Birmingham (4/12/17)