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Kimster
07-08-2010, 08:02 PM
Please list your questions for verified lawyers on the board.


*~*~*~*~* NO DISCUSSIONS PLEASE *~*~*~*~*

If you would like to add yourself as an expert in a certain field or an insider to a case, please contact Tricia.

If you do not wish to be identified as an expert in a certain area, we only ask that you refrain from answering questions that are specifically directed to those that have been verified as specialist in their area.

If a member posts with "expertise" please check to make sure they are on this list. If not, please do not take their post as professional information, but rather just as another opinion ;much as you would with any member of the general posting membership.

BeanE
07-08-2010, 08:40 PM
The restraining order says:

"I believe respondent is involved in the disappearance of my son Kyron who has been missing since June 4, 2010. I also recently learned that respondent attempted to hire someone to murder me,'' Kaine Horman wrote in his petition. "The police have provided me with probable cause to believe the above two statements to be true."

Could I have an attorney's take on this please? Why would Kaine use the term 'probable cause'?

It seems to me that he is attesting to the fact that these are things he believes, that he offers this information in good faith, that they are true to his best knowledge and understanding, versus LE offering testimony that on probable cause in the legal sense.

No probable cause statements were attached with the restraining order. No further info on what he'd been told.

Here's the restraining order:
http://www.koinlocal6.com/media/lib/107/e/1/2/e12f2287-ce0b-48e0-8d85-e3955216ae1b/FULLORDER.pdf

BeanE
07-08-2010, 08:44 PM
Terri is currently living in the Horman home. Kaine moved out with the baby last Saturday, and it was reported to be at the prompting of LE, or at least based on LE giving him info.

Now, Kaine is asking that Terri be forced to move out of their house.

It seems to me that legally, an attorney could maybe argue that Terri effectively forced Kaine (and the baby) to move out by posing a threat to their well-being (and life!). But... IANAL :) It does seem from a moral standpoint that Kaine has more rights to the home than Terri does, but what about legally? What arguments can an attorney use in this situation?

Here's the motion:
http://www.koinlocal6.com/media/lib/107/6/9/8/69893b06-b00a-4715-b6bd-4b778e8438f5/Petition_for_Expedited_Hearing.pdf

AnaTeresa
07-08-2010, 08:46 PM
Thanks for this thread - I think it will be a great resource. I'm still in law school, and sometimes a little information is a bad thing! It's great to have people who are knowledgable explain things in this case, as murky as it is.

Regarding the "probable cause" mention in the RO - if LE probable cause relies on the "failed" polygraphs (per KH and DY) and the word of the landscaper, how would this stand up in court? If there is no additional evidence, other than what we are currently aware, does LE have probable cause to arrest TMH or search her belongings?

AZlawyer
07-08-2010, 08:55 PM
The restraining order says:

"I believe respondent is involved in the disappearance of my son Kyron who has been missing since June 4, 2010. I also recently learned that respondent attempted to hire someone to murder me,'' Kaine Horman wrote in his petition. "The police have provided me with probable cause to believe the above two statements to be true."

Could I have an attorney's take on this please? Why would Kaine use the term 'probable cause'?

It seems to me that he is attesting to the fact that these are things he believes, that he offers this information in good faith, that they are true to his best knowledge and understanding, versus LE offering testimony that on probable cause in the legal sense.

No probable cause statements were attached with the restraining order. No further info on what he'd been told.

Here's the restraining order:
http://www.koinlocal6.com/media/lib/107/e/1/2/e12f2287-ce0b-48e0-8d85-e3955216ae1b/FULLORDER.pdf

My guess is that someone (LE) used the term "probable cause" during their recent discussions with him, but that, in the restraining order papers, he is just using the term to mean "plenty of reason for me to think it's true."

AZlawyer
07-08-2010, 08:57 PM
Terri is currently living in the Horman home. Kaine moved out with the baby last Saturday, and it was reported to be at the prompting of LE, or at least based on LE giving him info.

Now, Kaine is asking that Terri be forced to move out of their house.

It seems to me that legally, an attorney could maybe argue that Terri effectively forced Kaine (and the baby) to move out by posing a threat to their well-being (and life!). But... IANAL :) It does seem from a moral standpoint that Kaine has more rights to the home than Terri does, but what about legally? What arguments can an attorney use in this situation?

Here's the motion:
http://www.koinlocal6.com/media/lib/107/6/9/8/69893b06-b00a-4715-b6bd-4b778e8438f5/Petition_for_Expedited_Hearing.pdf

I believe Kaine said in the application that the house was in his name alone, which might make things easier. But basically the judge can order her to stay away from the house even if she owns half of it. She might be entitled to some kind of compensation down the road (in the divorce proceeding) for being forced to vacate her own home, but the judge in the restraining order proceeding can make the order.

AZlawyer
07-08-2010, 09:02 PM
Thanks for this thread - I think it will be a great resource. I'm still in law school, and sometimes a little information is a bad thing! It's great to have people who are knowledgable explain things in this case, as murky as it is.

Regarding the "probable cause" mention in the RO - if LE probable cause relies on the "failed" polygraphs (per KH and DY) and the word of the landscaper, how would this stand up in court? If there is no additional evidence, other than what we are currently aware, does LE have probable cause to arrest TMH or search her belongings?

If LE had "probable cause" in the technical legal, criminal-law sense of the phrase, IMO they would have arrested her by now--UNLESS they think that Kyron is still alive and that not arresting Terri will lead to his safe recovery. But I can't really think of a reasonable scenario fitting those requirements. :waitasec:

And no, I don't think failed polygraphs and the word of a landscaper that couldn't be confirmed through a "sting" operation would constitute probable cause. But confirmed lies about her whereabouts at critical times (e.g. through cell phone pings), combined with maybe phone records, purchase records, or computer records that were suspicious...that might do it.

gibby207
07-08-2010, 09:46 PM
Thanks for coming over here too AZ!! :D

BeanE
07-08-2010, 09:55 PM
Thank you so much, AZ! Great to see you here. :)

eyes4crime
07-08-2010, 10:29 PM
Thanks for your expertise AZlawyer - appreciate your time.

Since Kaine owns the home is he able to give the okay for LE to search and seize without a warrant, and if so, would that include house, belongings (computer etc.) and land. TIA :blowkiss:

AZlawyer
07-08-2010, 10:53 PM
Thanks for your expertise AZlawyer - appreciate your time.

Since Kaine owns the home is he able to give the okay for LE to search and seize without a warrant, and if so, would that include house, belongings (computer etc.) and land. TIA :blowkiss:

Yes, and I believe he already did that.

BeanE
07-09-2010, 04:43 PM
Terri allegedly tried to hire the landscaper to murder Kaine in November. Obviously no one has murdered Kaine. I can't think of any charges that could be brought against the landscaper, but... IANAL. What about if he agreed to do it, but (obviously) never carried it out? What about if Terri paid him to do it, and he accepted that payment and agreed to it, but again, never carried it out? Any possible charges for that?

What about if Terri just sort of tossed around the idea with the landscaper, but no agreement or payment was made? Any possible charges against Terri for that?

Thanks so much!
BeanE

AZlawyer
07-09-2010, 05:37 PM
Terri allegedly tried to hire the landscaper to murder Kaine in November. Obviously no one has murdered Kaine. I can't think of any charges that could be brought against the landscaper, but... IANAL. What about if he agreed to do it, but (obviously) never carried it out? What about if Terri paid him to do it, and he accepted that payment and agreed to it, but again, never carried it out? Any possible charges for that?

What about if Terri just sort of tossed around the idea with the landscaper, but no agreement or payment was made? Any possible charges against Terri for that?

Thanks so much!
BeanE

I'm not familiar with the specific state laws of Oregon, but there could be conspiracy and/or attempt charges, based on how far the landscaper and/or Terri went to try to carry out the plan. There also could be charges against Terri just for making the offer, even if the landscaper declined to get involved.

SacreBleu
07-11-2010, 03:37 PM
I assume that Terri's lawyer does not have the right to request any disclosures (discovery) from LE at this point because Terri has not been charged. For the sake of my question, I will also assume the LE has not handed over any information. Are the media "leaks" and statements from DY and KH a way of letting him know just what they may have? Are they hoping he will advise his client to open up about what she knows?

TGIRecovered
07-11-2010, 04:28 PM
The following questions are based upon possibilities, and are not intended to imply that the situations I have described below are anything more than speculation based upon my own evaluation of this investigation.

(Unleash the lawyers!)

Would it be reasonable to assume that, if Terri's lawyer had anything at all to say in his client's favor, he would have made a public statement by now?


What are some possible reasons that this particular lawyer would choose not to make any public statement about Terri's position in this investigation? Is it likely that he has made an official statement to LE which has not yet been made public?

If Terri's lawyer were to become convinced that Terri had indeed committed a crime against Kyron, would he have any reason to delay resignation as her legal counsel? Would it make a difference if a lawyer simply became convinced by evidence of his client's guilt or if the client admitted guilt to the lawyer? Is it ever wise to continue representing a client in such a situation, even though the lawyer could not argue innocence without perjuring himself?

TIA for sharing your legal expertise with us!

AnaTeresa
07-11-2010, 04:33 PM
I have a question about DY and KH's statements to the press regarding TMH. I know that truth is a defense for defamation - but does DY and KH's statements have to actually be true, or can they just believe that they are true?

If their statements to the media are false, is this something that would impact a criminal trial against TMH, or handled completely separate as a civil action?

Calliope
07-11-2010, 05:35 PM
I'm not familiar with the specific state laws of Oregon, but there could be conspiracy and/or attempt charges, based on how far the landscaper and/or Terri went to try to carry out the plan. There also could be charges against Terri just for making the offer, even if the landscaper declined to get involved.

Would this apply ?

https://www.oregonlaws.org/ors/161.435

It's not clear to me how it's determined this particular crime (solicitation) has been committed, as opposed to (for example) someone just spouting off. It seems it would be difficult to prove serious intent, at least in some cases.

And this would apply if the landscaper had agreed?

https://www.oregonlaws.org/ors/161.450

Katprint
07-12-2010, 01:49 PM
The following questions are based upon possibilities, and are not intended to imply that the situations I have described below are anything more than speculation based upon my own evaluation of this investigation.

(Unleash the lawyers!)

Would it be reasonable to assume that, if Terri's lawyer had anything at all to say in his client's favor, he would have made a public statement by now?
No.


What are some possible reasons that this particular lawyer would choose not to make any public statement about Terri's position in this investigation?
The lawyer is probably conducting his own parallel investigation of the facts. And/or he may be hoping for some "out of sight, out of mind" time, (When was the last time you heard a media report on missing Baby Gabriel?), or may believe there is no point in making a public statement that will not be believed, or may have decided not to tip his hand concerning his defense strategy, or may have scheduled a summer vacation with his family, or may have other reasons for not making a public statement.

Is it likely that he has made an official statement to LE which has not yet been made public?
Yes.


If Terri's lawyer were to become convinced that Terri had indeed committed a crime against Kyron, would he have any reason to delay resignation as her legal counsel? Would it make a difference if a lawyer simply became convinced by evidence of his client's guilt or if the client admitted guilt to the lawyer? Is it ever wise to continue representing a client in such a situation, even though the lawyer could not argue innocence without perjuring himself?
Even guilty people (perhaps especially guilty people) are entitled to legal representation. An attorney has no duty to resign from representing someone the attorney believes to be guilty; the attorney may even have a duty to continue representing that client especially if the attorney has accepted a retainer from the client which would contractually obligate the attorney to represent the client.

An attorney is an advocate, which is one reason why juries are instructed that the attorney's arguments are not testimony/evidence. Because the attorney does not testify, the attorney's arguments cannot constitute perjury.

Consider a situation where a liquor store is robbed. The defendant's mug shots from prior criminal arrests are show to the clerk in a photo lineup, and the defendant is ID'd as the robber. The client's wife/girlfriend/mother provides an alibi for the client, and the attorney is able to present evidence showing that the defendant had previously shopped at that liquor store (explaining why the defendant looked familiar to the clerk and/or why the defendant's palm print was on the door.) The defense attorney's personal opinions are not relevant to arguing that the guilt of the defendant has not been proven beyond a reasonable doubt.

The defense attorney does have an ethical duty to refrain from presenting testimony that the attorney knows to be false and/or from falsifying evidence (like the DA in New York who planted the defendant's fingerprints on the gas cans found at an arson scene). However, the defense attorney properly advocates the most favorable result based on the reasonable inferences to be drawn from the admissible evidence.

Katprint
Always only my own opinions

AZlawyer
07-12-2010, 03:22 PM
I assume that Terri's lawyer does not have the right to request any disclosures (discovery) from LE at this point because Terri has not been charged. For the sake of my question, I will also assume the LE has not handed over any information. Are the media "leaks" and statements from DY and KH a way of letting him know just what they may have? Are they hoping he will advise his client to open up about what she knows?

I'm sure LE is hoping to pressure TH into "spilling the beans." Also, it appears that the bio-parents are attempting to comply with LE's instructions regarding what should or should not be said. So I would hazard a guess that whatever they are saying has been at least generally approved by LE. However, there may be other motives behind these statements--for example, convincing a third party to speak up.


I have a question about DY and KH's statements to the press regarding TMH. I know that truth is a defense for defamation - but does DY and KH's statements have to actually be true, or can they just believe that they are true?

If their statements to the media are false, is this something that would impact a criminal trial against TMH, or handled completely separate as a civil action?

It would be a separate civil action, and a good faith belief in the truth of the statements should be a defense (although I haven't checked Oregon law on this point). Also, I'm not sure they've said anything that would be strictly and provably "false" even if TH is innocent.


Would this apply ?

https://www.oregonlaws.org/ors/161.435

It's not clear to me how it's determined this particular crime (solicitation) has been committed, as opposed to (for example) someone just spouting off. It seems it would be difficult to prove serious intent, at least in some cases.

And this would apply if the landscaper had agreed?

https://www.oregonlaws.org/ors/161.450

Yes and yes. :)

It's always harder to prove someone's state of mind than to prove, e.g., that an event occurred, but it is done routinely nevertheless. You can look at the words and conduct of a person, and how they react to the words and conduct of others, to determine what they intend.

butwhatif?
07-12-2010, 10:59 PM
Apologies in advance if this has been asked and answered. Don't have much time today.

Even though it would violate hippa laws for a doc to reveal TH's medical/mental health history, is there anything barring a spouse or family member from revealing it publicly?

Could there be legal repercussions for this?

TIA

Calliope
07-12-2010, 11:12 PM
Apologies in advance if this has been asked and answered. Don't have much time today.

Even though it would violate hippa laws for a doc to reveal TH's medical/mental health history, is there anything barring a spouse or family member from revealing it publicly?

Could there be legal repercussions for this?

TIA

I'm not an attorney but someone who has HIPAA training yearly as a part of my job.

The answer (as far as HIPAA goes) is "no".

http://www.hhs.gov/ocr/privacy/hipaa/understanding/consumers/index.html

Who Must Follow These Laws

We call the entities that must follow the HIPAA regulations covered entities.

Covered entities include:

Health Plans, including health insurance companies, HMOs, company health plans, and certain government programs that pay for health care, such as Medicare and Medicaid.

Most Health Care Providers—those that conduct certain business electronically, such as electronically billing your health insurance—including most doctors, clinics, hospitals, psychologists, chiropractors, nursing homes, pharmacies, and dentists.

Health Care Clearinghouses—entities that process nonstandard health information they receive from another entity into a standard (i.e., standard electronic format or data content), or vice versa.

Who Is Not Required to Follow These Laws

Many organizations that have health information about you do not have to follow these laws.

Examples of organizations that do not have to follow the Privacy and Security Rules include:


life insurers,
employers,
workers compensation carriers,
many schools and school districts,
many state agencies like child protective service agencies,
many law enforcement agencies,
many municipal offices
.

AZlawyer
07-12-2010, 11:41 PM
I'm not an attorney but someone who has HIPAA training yearly as a part of my job.

The answer (as far as HIPAA goes) is "no".

http://www.hhs.gov/ocr/privacy/hipaa/understanding/consumers/index.html

Who Must Follow These Laws

We call the entities that must follow the HIPAA regulations covered entities.

Covered entities include:

Health Plans, including health insurance companies, HMOs, company health plans, and certain government programs that pay for health care, such as Medicare and Medicaid.

Most Health Care Providers—those that conduct certain business electronically, such as electronically billing your health insurance—including most doctors, clinics, hospitals, psychologists, chiropractors, nursing homes, pharmacies, and dentists.

Health Care Clearinghouses—entities that process nonstandard health information they receive from another entity into a standard (i.e., standard electronic format or data content), or vice versa.

Who Is Not Required to Follow These Laws

Many organizations that have health information about you do not have to follow these laws.

Examples of organizations that do not have to follow the Privacy and Security Rules include:


life insurers,
employers,
workers compensation carriers,
many schools and school districts,
many state agencies like child protective service agencies,
many law enforcement agencies,
many municipal offices
.

Thanks, C. This is exactly right. :)

captivagrl
07-12-2010, 11:47 PM
At this point, with no arrest or conviction, can TM sell pictures, an exclusive interview, or anything else and profit from it immediately?
Thank you for your time.

nurseratchett
07-13-2010, 01:41 AM
Concerning the RO, and the statement by media that TH tried to "abduct" the daughter from the gym on Monday 6/8/10 prior to being served the RO:
TH made a call to 911 late Sat 6/26/10 re: a "custody" dispute. Is it possible since LE had advised Kaine to move out with the daughter that TH had been told by them, at that time, that a RO would be filed and even though not formally served, she was to have no contact?

Calliope
07-13-2010, 01:56 AM
Concerning the RO, and the statement by media that TH tried to "abduct" the daughter from the gym on Monday 6/8/10 prior to being served the RO:
TH made a call to 911 late Sat 6/26/10 re: a "custody" dispute. Is it possible since LE had advised Kaine to move out with the daughter that TH had been told by them, at that time, that a RO would be filed and even though not formally served, she was to have no contact?

To add to this post...

Can the police order a person not to have contact with their own child without a court order?

eyes4crime
07-13-2010, 02:05 AM
To get information from Mr. C's phone wouldn't LE need a warrant? Or did they get all info from Terri's phone so far and not Mr. C's. Guess I'm confused as what criteria is used to get info. from two phones. TIA

WholeLottaRosie
07-13-2010, 02:18 AM
Question. In the motion for contempt, it seems to me that all the allegations of any sexual affair, the details of sexting, pictures, etc., serve no purpose but to further assassinate the character of Terri Horman; as well as stating information that LE allegedly told them regarding the similarities of the conversations between TH and MC being the same as in the alleged murder for hire.

Stating the details of the alleged contempt, when showing MC the RO would seem to be all that is needed. Also, I don't see the point of detailing her (TH's) visit to the gym to inquire about her husband and daughter, at that point she had not been served with divorce papers or RO. At that point, she was a mother looking for her child that her husband had snatched from the marital home without her persmission.

Question is - 1) what purpose does the information about the gym visit serve?
2) When TH retains counsel for the domestic issues, or if the current attorney is handling the RO issues, can they ask for sanctions against Petitioner and his counsel for the unnecessary character attack? TIA

desquire
07-13-2010, 10:18 AM
To get information from Mr. C's phone wouldn't LE need a warrant? Or did they get all info from Terri's phone so far and not Mr. C's. Guess I'm confused as what criteria is used to get info. from two phones. TIA

They would need a warrant to examine either phone or any phone records unless the owner gives them permission to search. Based on the articles and affidavit, it appears that Mr. C voluntarily consented to the search of his phone. Obviously they also had access to TH's phone records but it is unclear whether she consented, whether the phone is in KH's name and he consented, or whether they had a warrant. Most likely, TH and KH consented early on in cooperation with the broader search for Kyron.

desquire
07-13-2010, 10:40 AM
Question is - 1) what purpose does the information about the gym visit serve?
2) When TH retains counsel for the domestic issues, or if the current attorney is handling the RO issues, can they ask for sanctions against Petitioner and his counsel for the unnecessary character attack? TIA

1. The gym visit information really isn't relevant to the contempt motion since the affidavit stated that it occurred prior to the service of the order on TH. Contempt requires the willful disobedience to, or disregard of, a court order. One can't willfully disobey something they when they have no knowledge of its existence. It may be that the gyms claim was included as a hail mary in case some evidence arises that TH had knowledge of the RO before being served but more likely it was included for the benefit of the court of public opinion.

2. If TH prevails on the contempt claim, she could seek sanctions against KH. Although it doesn't appear that the case for contempt is very strong, there is merit to it, so it's extremely unlikely that sanctions would be imposed for bringing the claim.

ami
07-13-2010, 12:30 PM
In another thread we're discussing parental abduction. I found a legal definition that states:

>>In the absence of a court order determining rights of custody or visitation to a child, a person having a right of custody of the child commits the crime of parental kidnapping if he removes, takes, detains, conceals, or entices away that child within or without the state, without good cause, and with the intent to deprive the custody right of another person or a public agency also having a custody right to that child.>> [http://definitions.uslegal.com/p/parental-kidnapping/]

When Kaine removed the baby from the home because LE informed him that TH may be a danger to them, was that "good cause" or was it parental abduction? Do you need an RO in force to show good cause, or can you remove a child from danger without one?

Thanks!

Calliope
07-13-2010, 12:38 PM
They would need a warrant to examine either phone or any phone records unless the owner gives them permission to search. Based on the articles and affidavit, it appears that Mr. C voluntarily consented to the search of his phone. Obviously they also had access to TH's phone records but it is unclear whether she consented, whether the phone is in KH's name and he consented, or whether they had a warrant. Most likely, TH and KH consented early on in cooperation with the broader search for Kyron.

Thanks. Wouldn't LE still have to have a court order or a legal document of some type to present to the carrier in order to get records? Not necessarily a search warrant if the person agreed to allow them to look at the records.

Calliope
07-13-2010, 01:04 PM
In another thread we're discussing parental abduction. I found a legal definition that states:

>>In the absence of a court order determining rights of custody or visitation to a child, a person having a right of custody of the child commits the crime of parental kidnapping if he removes, takes, detains, conceals, or entices away that child within or without the state, without good cause, and with the intent to deprive the custody right of another person or a public agency also having a custody right to that child.>> [http://definitions.uslegal.com/p/parental-kidnapping/]

When Kaine removed the baby from the home because LE informed him that TH may be a danger to them, was that "good cause" or was it parental abduction? Do you need an RO in force to show good cause, or can you remove a child from danger without one?

Thanks!

I'd like to add to this by asking if the above link is applicable to all parents or if it's regarding those who have legally separated or divorced without court-ordered custody and visitation, meaning it doesn't apply to parents who are married and haven't begun the process of separation or divorce.

gitana1
07-13-2010, 03:27 PM
If LE had "probable cause" in the technical legal, criminal-law sense of the phrase, IMO they would have arrested her by now--UNLESS they think that Kyron is still alive and that not arresting Terri will lead to his safe recovery. But I can't really think of a reasonable scenario fitting those requirements. :waitasec:

And no, I don't think failed polygraphs and the word of a landscaper that couldn't be confirmed through a "sting" operation would constitute probable cause. But confirmed lies about her whereabouts at critical times (e.g. through cell phone pings), combined with maybe phone records, purchase records, or computer records that were suspicious...that might do it.

Hey AZ, I'm family law, not criminal law like you so you would know better than I, but wouldn't LE wait to arrest someone, even if there is probable cause to do so, if they lack what they need to get a conviction? I mean, probable cause and reasonable doubt are not necessarily mutually exclusive, no?

Kimster
07-13-2010, 05:38 PM
OH OH! I have a family law question!

Have you ever heard of it being a crime to sext with another man when you married? I realize this is a morale issue, but is it a legal issue as well?

shelbar53
07-13-2010, 06:11 PM
Teri asked MC to lie to her attorney. What repercussions if any will that have with her lawyer? Can he resign? Will most attorneys resign under those circumstances

AZlawyer
07-13-2010, 07:23 PM
Wow, I've been neglecting this thread apparently. :)


At this point, with no arrest or conviction, can TM sell pictures, an exclusive interview, or anything else and profit from it immediately?
Thank you for your time.

I guess so. But if her attorney allows it, he is a doofus.


Teri asked MC to lie to her attorney. What repercussions if any will that have with her lawyer? Can he resign? Will most attorneys resign under those circumstances

Terri ALLEGEDLY asked MC to lie to her attorney. ;) Anyway, I would probably look at it as a "first offense" and give her The Talk (Re: Why It Is Important Not to Lie to Me) before resigning.


Concerning the RO, and the statement by media that TH tried to "abduct" the daughter from the gym on Monday 6/8/10 prior to being served the RO:
TH made a call to 911 late Sat 6/26/10 re: a "custody" dispute. Is it possible since LE had advised Kaine to move out with the daughter that TH had been told by them, at that time, that a RO would be filed and even though not formally served, she was to have no contact?


To add to this post...

Can the police order a person not to have contact with their own child without a court order?

No. But the police could say, "Look, Terri, we told Kaine to move out and take the baby, so we strongly advise you to leave them the he** alone while Kaine gets an official RO against you."

But I bet the 911 call was just because she had realized at that point that Kaine had moved out and was not going to let her see the baby.


Question. In the motion for contempt, it seems to me that all the allegations of any sexual affair, the details of sexting, pictures, etc., serve no purpose but to further assassinate the character of Terri Horman; as well as stating information that LE allegedly told them regarding the similarities of the conversations between TH and MC being the same as in the alleged murder for hire.

Stating the details of the alleged contempt, when showing MC the RO would seem to be all that is needed.

<snipped by AZL because other issue was answered by someone else>


I don't think the sexting allegations were irrelevant. I think the point was that Terri is possibly following a pattern of using sexting, etc., to get men to agree to harm Kaine. The fact that she showed MC Kaine's address and he Google-Mapped it perhaps suggests, when taken into context with the prior situation with the landscaper, that she wanted MC to go "get" Kaine for her.


In another thread we're discussing parental abduction. I found a legal definition that states:

>>In the absence of a court order determining rights of custody or visitation to a child, a person having a right of custody of the child commits the crime of parental kidnapping if he removes, takes, detains, conceals, or entices away that child within or without the state, without good cause, and with the intent to deprive the custody right of another person or a public agency also having a custody right to that child.>> [http://definitions.uslegal.com/p/parental-kidnapping/]

When Kaine removed the baby from the home because LE informed him that TH may be a danger to them, was that "good cause" or was it parental abduction? Do you need an RO in force to show good cause, or can you remove a child from danger without one?

Thanks!

IMO it is good cause to remove a child without an RO if you reasonably think the other parent is hiring murderers and killing children, especially if you then go out and get an RO right away.


I'd like to add to this by asking if the above link is applicable to all parents or if it's regarding those who have legally separated or divorced without court-ordered custody and visitation, meaning it doesn't apply to parents who are married and haven't begun the process of separation or divorce.

It applies to married parents as well. You can't hide your kid from your spouse without a darn good reason.


Thanks. Wouldn't LE still have to have a court order or a legal document of some type to present to the carrier in order to get records? Not necessarily a search warrant if the person agreed to allow them to look at the records.

The carrier would require either a subpoena (easy to get) or a written consent form from the customer (also likely easy to get in this case).


Hey AZ, I'm family law, not criminal law like you so you would know better than I, but wouldn't LE wait to arrest someone, even if there is probable cause to do so, if they lack what they need to get a conviction? I mean, probable cause and reasonable doubt are not necessarily mutually exclusive, no?

I'm not a criminal lawyer. :) 15 years ago, I probably knew more about criminal law than civil litigation, but now I only do criminal law on appeal.

You're absolutely correct that LE doesn't necessarily arrest someone even if they have enough info to arrest, if they don't have enough for a conviction. They might do so, however, (1) to scare the person into a confession, (2) if it appears likely that additional evidence is forthcoming, (3) if the person's continued freedom is putting others in danger or creating the opportunity for the person to interfere with the evidence/investigation, (4) probably other reasons I can't think of right now.


OH OH! I have a family law question!

Have you ever heard of it being a crime to sext with another man when you married? I realize this is a morale issue, but is it a legal issue as well?

It isn't illegal anywhere that I know of, but most husbands frown upon it from what I understand. :)

Calliope
07-13-2010, 07:31 PM
The carrier would require either a subpoena (easy to get) or a written consent form from the customer (also likely easy to get in this case).

Thank you! That's the word LOL

Sorry... brain-farct.

Another question (you're going to regret agreeing to this lol)

Can an emergency RO be issued on weekends and during off-hours and be granted by a magistrate (kinda like how a TDO can be obtained) ? IOW, did he necessarily have to wait until Monday afternoon to file this petition? Given the immediacy of the mandatory remedy, I don't understand why someone in danger should be forced to wait for court to open.

AZlawyer
07-13-2010, 07:56 PM
Thank you! That's the word LOL

Sorry... brain-farct.

Another question (you're going to regret agreeing to this lol)

Can an emergency RO be issued on weekends and during off-hours and be granted by a magistrate (kinda like how a TDO can be obtained) ? IOW, did he necessarily have to wait until Monday afternoon to file this petition? Given the immediacy of the mandatory remedy, I don't understand why someone in danger should be forced to wait for court to open.

I don't know of any way, at least in AZ, that you can get a restraining order while the courts are closed. But obviously you can call the police on weekends. :) And Kaine was, IMO, safer before he filed for the RO, because Terri didn't know where he was until he disclosed his address in the application.

ZL27
07-13-2010, 08:23 PM
Could Kaine move back home and call LE to remove TMH since she's not allowed to be within X feet of him?

AZlawyer
07-14-2010, 06:05 PM
Could Kaine move back home and call LE to remove TMH since she's not allowed to be within X feet of him?

That would probably work. I think he would rather have his return be calm and noneventful, however, for the sake of the baby.

DairyGirl
07-15-2010, 02:45 AM
I have a question that someone answered but I am not sure they were a lawyer. If TH doesn't contest the RO she can't see her baby for a year. Can she still go to family court for the divorce and ask for custody or visitation? I heard that family court will abide by the RO and not change the parenting time.

Eta, I just read this:

On Tuesday, a judge consolidated the restraining order and divorce into one case.
http://www.katu.com/news/local/98434609.html

Does that change the way things are done with the parenting time? So even if TH doesn't contest the terms of the restraining order she can still ask for parenting time in the divorce? Does this make sense?

Cher352
07-15-2010, 08:33 AM
On the off chance that Terri is never charged with Kyron's disappearance could Terri sue anyone like the Youngs for statements they had made to the media about her alleged involvement in the crime?

Thanks!!

BeanE
07-15-2010, 08:58 AM
I have a question that someone answered but I am not sure they were a lawyer.

IANAL :) but here's a listing of the verified professionals:

Websleuths Crime Sleuthing Community - View Single Post - Professional Posters

butwhatif?
07-16-2010, 06:02 AM
The amended order (if thats what it's called...lol thats why I rely on you professionals) it states that the only persons or entities allowed access to the court files are as follows: 1)Oregon courts and court staff 2)any governmental agency, 3) the parties (KAH and TMH) 4) The attorney of record for the respondent and 5)the law firm of ____________ or the attorney of record for petitioner.

So hypothertically if KH showed the order to DY or anyone else, would he be subject to the same sanctions?

Or not, because he was the petitioner and he and baby K were considered to be the ones at risk.

TIA

butwhatif?
07-16-2010, 06:12 AM
That would probably work. I think he would rather have his return be calm and noneventful, however, for the sake of the baby.

I'm assuming the order works both ways judging by remarks made by DY and KH in an interview.(something along the lines of them not being able to ask TH any questions because of the RO)

So if KH came within X feet of TH, would he be violating the order?

What if they by pure coincidence both happen to be at the same grocery store at the same time?
What happens then?

If they are not in contact, but know to stay away from the others residence, how can they avoid someone when they don't known their movements?


TIA again. You guys are the best!

AZlawyer
07-16-2010, 03:51 PM
I have a question that someone answered but I am not sure they were a lawyer. If TH doesn't contest the RO she can't see her baby for a year. Can she still go to family court for the divorce and ask for custody or visitation? I heard that family court will abide by the RO and not change the parenting time.

Eta, I just read this:

http://www.katu.com/news/local/98434609.html

Does that change the way things are done with the parenting time? So even if TH doesn't contest the terms of the restraining order she can still ask for parenting time in the divorce? Does this make sense?

Now that the matters are consolidated, everything should be simpler. The RO is only for a limited time anyway, and certainly does not preclude TH from arguing long-term custody and visitation. If the court determines that visitation/custody with TH is appropriate, the RO will simply be vacated in part or amended to be consistent with the divorce court orders.


On the off chance that Terri is never charged with Kyron's disappearance could Terri sue anyone like the Youngs for statements they had made to the media about her alleged involvement in the crime?

Thanks!!

It would depend on exactly which statements you're talking about. It would have to be a statement of FACT rather than OPINION, it would have to be FALSE, and there would have to be some level of carelessness on the part of the Youngs as to the truth of the statements they made. And of course TH would have to be able to PROVE that the things they said were false.


The amended order (if thats what it's called...lol thats why I rely on you professionals) it states that the only persons or entities allowed access to the court files are as follows: 1)Oregon courts and court staff 2)any governmental agency, 3) the parties (KAH and TMH) 4) The attorney of record for the respondent and 5)the law firm of ____________ or the attorney of record for petitioner.

So hypothertically if KH showed the order to DY or anyone else, would he be subject to the same sanctions?

Or not, because he was the petitioner and he and baby K were considered to be the ones at risk.

TIA

The order said that "neither party" could disclose the application or the basis for the order to anyone else. But KH certainly could have, and probably did, disclose that information to DY before the order was issued.


I'm assuming the order works both ways judging by remarks made by DY and KH in an interview.(something along the lines of them not being able to ask TH any questions because of the RO)

So if KH came within X feet of TH, would he be violating the order?

What if they by pure coincidence both happen to be at the same grocery store at the same time?
What happens then?

If they are not in contact, but know to stay away from the others residence, how can they avoid someone when they don't known their movements?


TIA again. You guys are the best!

The order is only against TH. However, the Court would be seriously ticked off if KH chased her around trying to put her in violation of the order.

If they happened to be at the grocery store at the same time, TH would have to leave as soon as she became aware that KH was within 500 feet of her.

SmoothOperator
07-16-2010, 11:42 PM
For our verified lawyers I NEED to know the answer to just one question...

Today did Terri Moulton Horman terminate her parental rights to baby K? And if she did NOT then exactly what did she do?

TIA so much to those professionals that take the time for our questions it is very much appreciated.

Kimster
07-18-2010, 11:48 AM
Oregon is NOT a community property state.

My question is this:

Can LE add a tracking device to TH's car if Kaine is on the title and gives them permission?

debs
07-18-2010, 12:14 PM
Now that the matters are consolidated, everything should be simpler. The RO is only for a limited time anyway, and certainly does not preclude TH from arguing long-term custody and visitation. If the court determines that visitation/custody with TH is appropriate, the RO will simply be vacated in part or amended to be consistent with the divorce court orders.



It would depend on exactly which statements you're talking about. It would have to be a statement of FACT rather than OPINION, it would have to be FALSE, and there would have to be some level of carelessness on the part of the Youngs as to the truth of the statements they made. And of course TH would have to be able to PROVE that the things they said were false.



The order said that "neither party" could disclose the application or the basis for the order to anyone else. But KH certainly could have, and probably did, disclose that information to DY before the order was issued.



The order is only against TH. However, the Court would be seriously ticked off if KH chased her around trying to put her in violation of the order.

If they happened to be at the grocery store at the same time, TH would have to leave as soon as she became aware that KH was within 500 feet of her.

According to the RO, if Kaine believes Terri is there, HE must leave, or HE will be violating the RO. He cannot knowingly force a showdown which would effectively act as harassment of Terri's right to freedom to be where she has every right to be.

gitana1
07-18-2010, 02:13 PM
Question. In the motion for contempt, it seems to me that all the allegations of any sexual affair, the details of sexting, pictures, etc., serve no purpose but to further assassinate the character of Terri Horman; as well as stating information that LE allegedly told them regarding the similarities of the conversations between TH and MC being the same as in the alleged murder for hire.

Stating the details of the alleged contempt, when showing MC the RO would seem to be all that is needed. Also, I don't see the point of detailing her (TH's) visit to the gym to inquire about her husband and daughter, at that point she had not been served with divorce papers or RO. At that point, she was a mother looking for her child that her husband had snatched from the marital home without her persmission.

Question is - 1) what purpose does the information about the gym visit serve?
2) When TH retains counsel for the domestic issues, or if the current attorney is handling the RO issues, can they ask for sanctions against Petitioner and his counsel for the unnecessary character attack? TIA

AZlawyer answered this I think. I'd like to elaborate. The fact that TH may have tried to sneak the baby away from Kaine, by asking the gym staff to alert her when the baby was there (while not contempt if done before being served), would be something I would use in court papers to show her state of mind/behavior. I would use that to show the court the way she operates and to argue that she is someone who may be at risk of kidnapping. This is because the alternative is to confront Kaine and demand the baby, or to seek court orders herself, granting her custody of the baby. The fact that she instead wanted to surreptitiously take the baby when Kaine was unaware, would be a fact I would use to show that she does not operate above-board. The court may simply see that behavior as game playing in the context of a domestic custody dispute, but in context with Kyron's disappearance, it could be beneficial information for the court to know and I would certainly use it.

I have a question that someone answered but I am not sure they were a lawyer. If TH doesn't contest the RO she can't see her baby for a year. Can she still go to family court for the divorce and ask for custody or visitation? I heard that family court will abide by the RO and not change the parenting time.

Eta, I just read this:

http://www.katu.com/news/local/98434609.html

Does that change the way things are done with the parenting time? So even if TH doesn't contest the terms of the restraining order she can still ask for parenting time in the divorce? Does this make sense?

In CA, even if consolidated, if a person fails to contest an RO and any requested orders in it that pertain to custody, they could not file a new action in the context of the dissolution action as a means of vacating or superceding the child custody orders in the DV case. In any case, DV, disso or guardianship, one can file a motion to modify custody orders that were issued, but one must have a good reason why those orders should be changed. In CA, the standard is "a substantial change in circumstances such that the custody orders should be modified". A substantial change would not be that one changed his or her mind. They could state that now they are in a better position to have custody, such as they just moved closer, but they would have to otherwise show that a modification is in the child's best interest.
Further, the reasons for the prior orders would bear on any modification. Also, the status quo as created by the orders the party wants to modify, would come into play and make it more difficult to obtain a modification.
In this case, TH cannot use the dissolution case as a means of bypassing the allegations in the RO petition. She would have to address those allegations in order to modify the current court orders.
Finally, although ROs do not last forever (in CA they can be from one to five years), once you obtain an RO and other associated court orders, at the regularly scheduled hearing on the RO (not the ex parte hearing), those orders are considered "permanent" orders, not temporary, even though they do not continue past the term of the RO.
The protected party would generally seek child custody court orders in connection with a divorce or paternity action, that mirror those issued in connection with the RO, so that there are custody orders lasting past the life of the RO.
In CA, there is a legal presumption that a person found by the court to have committed DV, should not have sole or joint legal or physical custody of a child. Thus, not contesting a RO application could be fatal to a parent who wants to have some sort of significant custodial time with their child. The basis for the RO child custody orders does not disappear when the RO ends.


For our verified lawyers I NEED to know the answer to just one question...

Today did Terri Moulton Horman terminate her parental rights to baby K? And if she did NOT then exactly what did she do?

TIA so much to those professionals that take the time for our questions it is very much appreciated.

TH did not terminate her parental rights. She gave up custodial rights today, meaning she does not have joint or sole legal or physical custody of her child or visitation rights. She can always go back into court to change the current court orders but those orders create a status quo and set a precedent that makes a modification of the orders tricky. She would have to answer the allegations in the RO if she wanted to modify and otherwise have a good reason why the court orders are no longer in the best interest of her child.

Calliope
07-19-2010, 08:59 PM
The RO states she cannot intimidate, molest, interfere or menace Kaine directly or through third parties; but the part where she is specifically instructed to remain 500 feet from him and 150 feet from certain places (his home, job, the gym) does not mention 3rd parties. Would it be a violation of the RO if she were to get a friend to drive by his home, go to the gym, or his place of employment? For example, what if a friend *just happened* to join Kaine's gym? What about friends who already belong to the gym? Would they have to leave when Kaine arrived?

Would any of this fall into the category of menacing, etc. by third party? I ask because they are listed as separate orders. What if a friend did this on their own without Terri asking them to do so? Would Kaine have to prove she knew what they were doing?

I guess I'm asking how much of the order can be applied to her family or friends being near Kaine or baby --- even if Terri isn't involved with them being there --- as the risk exists that they will provide info to Terri regarding his movements and whereabouts.

(hope this makes sense; I haven't slept today)

AZlawyer
07-20-2010, 04:39 PM
The RO states she cannot intimidate, molest, interfere or menace Kaine directly or through third parties; but the part where she is specifically instructed to remain 500 feet from him and 150 feet from certain places (his home, job, the gym) does not mention 3rd parties. Would it be a violation of the RO if she were to get a friend to drive by his home, go to the gym, or his place of employment? For example, what if a friend *just happened* to join Kaine's gym? What about friends who already belong to the gym? Would they have to leave when Kaine arrived?

Would any of this fall into the category of menacing, etc. by third party? I ask because they are listed as separate orders. What if a friend did this on their own without Terri asking them to do so? Would Kaine have to prove she knew what they were doing?

I guess I'm asking how much of the order can be applied to her family or friends being near Kaine or baby --- even if Terri isn't involved with them being there --- as the risk exists that they will provide info to Terri regarding his movements and whereabouts.

(hope this makes sense; I haven't slept today)

A lot of this is left up to the interpretation and discretion of the judge. IMO, any judge would find it intimidating if TH asked someone to follow Kaine around. But the only person the judge could take any action against for violating the order would be TH, so there's not much anyone can do if a third party decides to follow Kaine around on hisown--except get a new RO against any that person, if the requirements can be met.

Calliope
07-20-2010, 04:49 PM
A lot of this is left up to the interpretation and discretion of the judge. IMO, any judge would find it intimidating if TH asked someone to follow Kaine around. But the only person the judge could take any action against for violating the order would be TH, so there's not much anyone can do if a third party decides to follow Kaine around on hisown--except get a new RO against any that person, if the requirements can be met.

Regarding the gym scenario, it's probably safe to say that Terri has friends who have memberships there too. Assuming Terri did NOT ask them to 'spy' on Kaine, then he wouldn't have any say regarding their presence? Even if he suspected they were providing information to Terri? Also, could Terri be held in violation of the order if others give her unsolicited information on Kaine and baby?

eyes4crime
07-20-2010, 08:06 PM
Wondering if LE need a warrant to put GPS on a car for tracking? If not, is there criteria used to decide who gets a GPS? TIA

Thanks again to all who have kindly answered our legal questions! :blowkiss:

Calliope
07-20-2010, 10:41 PM
Wondering if LE need a warrant to put GPS on a car for tracking? If not, is there criteria used to decide who gets a GPS? TIA

Thanks again to all who have kindly answered our legal questions! :blowkiss:

Who would have to give permission if there was no warrant issued? IOW, the car was a gift to Terri so it belongs to her, but if Kaine's name is on the title (or loan) does that give him the right to allow LE to plant such a device?

AZlawyer
07-21-2010, 02:16 AM
Regarding the gym scenario, it's probably safe to say that Terri has friends who have memberships there too. Assuming Terri did NOT ask them to 'spy' on Kaine, then he wouldn't have any say regarding their presence? Even if he suspected they were providing information to Terri? Also, could Terri be held in violation of the order if others give her unsolicited information on Kaine and baby?

TH is not barred from knowing things about Kaine, and her friends are not defendants in the case, so the judge could not do anything about her friends reporting back to her.


Wondering if LE need a warrant to put GPS on a car for tracking? If not, is there criteria used to decide who gets a GPS? TIA

Thanks again to all who have kindly answered our legal questions! :blowkiss:

Yes, they would need a warrant or consent.


Who would have to give permission if there was no warrant issued? IOW, the car was a gift to Terri so it belongs to her, but if Kaine's name is on the title (or loan) does that give him the right to allow LE to plant such a device?

If Kaine is on the title, he should be able to give consent.

seeking truth
07-25-2010, 05:51 PM
1. What does it mean when a person says, "We have been BRIEFED" by Law Enforcement?

I am asking because it was stated in a post today that Kaine and Desiree being briefed by LE means that they are not being told very much at all. (Not the poster's exact words).

2. Is there a standard legal definition of "briefing?"

3. Could this couple, whose son is missing in a very high-profile case, state that they have been "briefed" by LE, and this is what they base their assertions on, get away with lying? Meaning, wouldn't LE come out with a statement refuting them, if what they were telling the media was a lie?

Thanks in advance.

Littleone48
07-25-2010, 06:22 PM
In reading this article http://marinadedave.com/2010/07/09/frink-on-crime/ it apppears that with the RO A Family Law Notice Of Nondisclosure of CONFIDENTIAL INFORMATION Form was also filed.

Does it mean that there is some information in the RO that hasn't been released?

AZlawyer
07-25-2010, 09:29 PM
1. What does it mean when a person says, "We have been BRIEFED" by Law Enforcement?

I am asking because it was stated in a post today that Kaine and Desiree being briefed by LE means that they are not being told very much at all. (Not the poster's exact words).

2. Is there a standard legal definition of "briefing?"

3. Could this couple, whose son is missing in a very high-profile case, state that they have been "briefed" by LE, and this is what they base their assertions on, get away with lying? Meaning, wouldn't LE come out with a statement refuting them, if what they were telling the media was a lie?

Thanks in advance.

It just means LE is giving you info; they call it a "briefing" when they call you in for a meeting to give you information (rather than to get information from you). You certainly can't tell from the use of that word whether or not it was a very informative briefing.

I think, if KH and DY were lying about getting info at a briefing, then either (1) LE asked them to spread misinformation for some strategic reason, or (2) LE would privately tell KH and DY to correct their statements, and if KH and DY did not do so, then LE would do it for them.


In reading this article http://marinadedave.com/2010/07/09/frink-on-crime/ it apppears that with the RO A Family Law Notice Of Nondisclosure of CONFIDENTIAL INFORMATION Form was also filed.

Does it mean that there is some information in the RO that hasn't been released?

Yes, but just the usual "confidential information"--should be things like Social Security numbers.

Tink56
07-25-2010, 11:24 PM
According to the following article, TH's defense team spent about 2 hours in the Horman home after TH moved and before KH and Baby K returned.

http://www.kptv.com/news/24301734/detail.html

Why would the defense team do this? Prevent planting of evidence? Other?

Thanks!

AZlawyer
07-26-2010, 12:23 PM
According to the following article, TH's defense team spent about 2 hours in the Horman home after TH moved and before KH and Baby K returned.

http://www.kptv.com/news/24301734/detail.html

Why would the defense team do this? Prevent planting of evidence? Other?

Thanks!

The story is a little vague about whether or not Terri was still in the house while the defense team was there. I doubt they were there to prevent the planting of evidence--what would be the point when "the enemy" (in their minds) was about to get full control of the house anyway?

If the defense team was really there after Terri left and before Kaine arrived, it was probably pre-arranged for them to be there to ensure an uneventful transfer of the home (i.e., no opportunity for Kaine and Terri to bump into each other, and no opportunity for the media to swarm the empty house lol).

Calliope
07-26-2010, 02:25 PM
Could you explain the reasoning behind this:

Kaine Horman has filed a motion in court this morning, asking a judge to order his estranged wife, Terri Moulton Horman, to disclose the source of the reportedly $350,000 she has paid to retain criminal defense attorney Stephen Houze.

"If Respondent has provided funds to her attorneys for her legal representation and considers them to be marital liability, these funds are marital property and Respondent should be required to pay one-half of these funds to Peitioner to use for his attorney fees and costs," wrote Laura Rackner, Kaine's attorney.

I may be misunderstanding the point here (probably am, LOL).

But what business is it of Kaine's --- particularly in his civil action --- how his estranged wife pays for her criminal attorney? I've seen divorce proceedings where the petitioner asks the respondent to pay legal fees, but this is different. Why would she bring up an attorney not representing Terri in the divorce case?

This sentence has me confused: "If Respondent has provided funds to her attorneys for her legal representation and considers them to be marital liability"

What does that mean ?

This is probably legal (I'm sure it is) but it doesn't feel right to me. IMO this blurs the line between the civil and potential criminal proceedings. Kaine seems to be fishing for information that can be used in the criminal investigation --- looking for a possible accomplice, evidence that Terri had a 'job' on the side, whatever. Is it likely the judge will view it as crossing the line into the criminal proceeding?

I guess the gist of my question here is ... can a judge in a civil action force a person to disclose information that could possibly be used to incriminate them in a criminal proceeding? To my untrained eye, it appears this could be the case here; if so, in your opinion, how should Houze handle this? Can he argue a 5th Amendment privilege, even though this is a civil case?

I am soooo confused lol

AZlawyer
07-26-2010, 02:45 PM
Could you explain the reasoning behind this:

Kaine Horman has filed a motion in court this morning, asking a judge to order his estranged wife, Terri Moulton Horman, to disclose the source of the reportedly $350,000 she has paid to retain criminal defense attorney Stephen Houze.

"If Respondent has provided funds to her attorneys for her legal representation and considers them to be marital liability, these funds are marital property and Respondent should be required to pay one-half of these funds to Peitioner to use for his attorney fees and costs," wrote Laura Rackner, Kaine's attorney.

I may be misunderstanding the point here (probably am, LOL).

But what business is it of Kaine's --- particularly in his civil action --- how his estranged wife pays for her criminal attorney? I've seen divorce proceedings where the petitioner asks the respondent to pay legal fees, but this is different. Why would she bring up an attorney not representing Terri in the divorce case?

This sentence has me confused: "If Respondent has provided funds to her attorneys for her legal representation and considers them to be marital liability"

What does that mean ?

This is probably legal (I'm sure it is) but it doesn't feel right to me. IMO this blurs the line between the civil and potential criminal proceedings. Kaine seems to be fishing for information that can be used in the criminal investigation --- looking for a possible accomplice, evidence that Terri had a 'job' on the side, whatever. Is it likely the judge will view it as crossing the line into the criminal proceeding?

I guess the gist of my question here is ... can a judge in a civil action force a person to disclose information that could possibly be used to incriminate them in a criminal proceeding? To my untrained eye, it appears this could be the case here; if so, in your opinion, how should Houze handle this? Can he argue a 5th Amendment privilege, even though this is a civil case?

I am soooo confused lol

I know we have a family law attorney on here who might be able to explain further, but from what I know of that area it would be completely appropriate to ask for the source of ANY large amount of money your estranged spouse suddenly seems to have after a divorce petition is filed. KH has a right to know if that money is marital property and therefore half his.

It is a poorly-constructed sentence, but I believe the "marital liability" reference relates to the fact that payment of attorneys' fees in a divorce case is a marital liability, so it is assumed that any funds being used to pay for such fees are marital property.

I suppose TH could say, "I refuse to disclose the source of the funds on the grounds I might incriminate myself by doing so." But I doubt Houze wants to imply that he's being paid through the profits of criminal activity! If that's truly the only answer she can give, I would expect to see him withdraw and return the funds.

citigirl
07-26-2010, 02:52 PM
I have a question for an attorney in Oregon...if a person in Terri's position is found to be trying to send a message in an anonymous way (such as a forum) to someone not to cooperate with police in this investigation, can she be charged with obstruction of justice or some other type of interference?

freefallzzzz
07-26-2010, 03:49 PM
What is the difference between...

Testifying in front of a Grand Jury as part of a criminal investigation

vs
Testifying in front of a Grand Jury for the reason to solicit information?

video is here where atty talks for DeDe..
http://www.kgw.com/news/local/DeDe-Spicher-testifies-before-grand-jury-99252004.html#kyron

Calliope
07-26-2010, 03:58 PM
I know we have a family law attorney on here who might be able to explain further, but from what I know of that area it would be completely appropriate to ask for the source of ANY large amount of money your estranged spouse suddenly seems to have after a divorce petition is filed. KH has a right to know if that money is marital property and therefore half his.

It is a poorly-constructed sentence, but I believe the "marital liability" reference relates to the fact that payment of attorneys' fees in a divorce case is a marital liability, so it is assumed that any funds being used to pay for such fees are marital property.

I suppose TH could say, "I refuse to disclose the source of the funds on the grounds I might incriminate myself by doing so." But I doubt Houze wants to imply that he's being paid through the profits of criminal activity! If that's truly the only answer she can give, I would expect to see him withdraw and return the funds.

Well not that she profited from criminal activity, but that this disclosure would necessarily cause him to bring in elements from a possible criminal defense.


Did that make sense? (seems I ask that a lot lately =\ )

AZlawyer
07-26-2010, 04:02 PM
What is the difference between...

Testifying in front of a Grand Jury as part of a criminal investigation

vs
Testifying in front of a Grand Jury for the reason to solicit information?

video is here where atty talks for DeDe..
http://www.kgw.com/news/local/DeDe-Spicher-testifies-before-grand-jury-99252004.html#kyron

I can't watch the video at the moment, so I'm not sure what you mean by asking for the "difference" between those things--they seem the same to me. AFAIK the only reason to testify before a grand jury is to provide information so the jury can decide whether specific criminal charges should be brought against a specific person.

Calliope
07-26-2010, 04:05 PM
I can't watch the video at the moment, so I'm not sure what you mean by asking for the "difference" between those things--they seem the same to me. AFAIK the only reason to testify before a grand jury is to provide information so the jury can decide whether specific criminal charges should be brought against a specific person.

That is what the reporter asked Dede's attorney, if that helps at all. He replied "My understanding is just to solicit information"

Calliope
07-26-2010, 04:16 PM
I can't watch the video at the moment, so I'm not sure what you mean by asking for the "difference" between those things--they seem the same to me. AFAIK the only reason to testify before a grand jury is to provide information so the jury can decide whether specific criminal charges should be brought against a specific person.

another question (are you regretting this yet? lol)

That was my understanding of the purpose for a GJ.

I wonder though... considering all the debate on Dede over the past few days, if someone isn't willing to "cooperate" with LE (read: talk freely, without an attorney, take a LDT, etc.), can a DA convene a GJ to force them to talk? Seems a bit icky to me if they can but if so, can someone refuse to answer to a GJ on the grounds it could incriminate them?

I wonder about this because the report said she was only in there for 30 minutes.

AZlawyer
07-26-2010, 04:16 PM
Well not that she profited from criminal activity, but that this disclosure would necessarily cause him to bring in elements from a possible criminal defense.


Did that make sense? (seems I ask that a lot lately =\ )

I'm not sure what you mean by bringing in "elements from a possible criminal defense." Maybe if you give a hypothetical situation it would be easier? E.g., "Suppose that TH got this money from _____, and the reason the money was given to her was _______________. Would she have to disclose that in the divorce case?"

Example: "Suppose that TH got this money from dealing drugs. Would she have to disclose that in the divorce case?" Answer: No, she could take the 5th. But her lawyer might have to withdraw if that $$$ was used to pay him, and the money would likely be treated as marital property since she will not be offering any alternative explanation. (You can argue the 5th in a civil case just like in a criminal case, but UNLIKE in a criminal case, the judge/jury can make adverse findings against you if you refuse to testify.)

Example 2: "Suppose that TH got this money from Mr. X, and the reason the money was given to her was because Mr. X bought Kyron from her. Would she have to disclose that in the divorce case?" Same answer as above.

Calliope
07-26-2010, 04:39 PM
I'm not sure what you mean by bringing in "elements from a possible criminal defense." Maybe if you give a hypothetical situation it would be easier?

I'll work on this... between sleep deprivation and this case making my head spin, my brain isn't working too well at the moment. I know the point I'm trying to make, just gotta figure out how to make it clearer...

BeanE
07-26-2010, 05:00 PM
It just means LE is giving you info; they call it a "briefing" when they call you in for a meeting to give you information (rather than to get information from you). You certainly can't tell from the use of that word whether or not it was a very informative briefing.

I think, if KH and DY were lying about getting info at a briefing, then either (1) LE asked them to spread misinformation for some strategic reason, or (2) LE would privately tell KH and DY to correct their statements, and if KH and DY did not do so, then LE would do it for them.


BBM. In light of that, how do you interpret this?


Multnomah County Sheriff's Office has no comments regarding the July 8, 2010 Young/Horman press conferences - 07/08/10
There will be no comment from the Multnomah County Sheriff's Office regarding the information reported during the Horman/Young July 8, 2010 press conferences. The information released in during these conferences did NOT come from the Multnomah County Sheriff's Office. This is an ongoing investigation.

http://www.flashalert.net/news.html?id=1276

Thanks AZ!!!! :blowkiss:

desquire
07-26-2010, 05:09 PM
I have a question for an attorney in Oregon...if a person in Terri's position is found to be trying to send a message in an anonymous way (such as a forum) to someone not to cooperate with police in this investigation, can she be charged with obstruction of justice or some other type of interference?

Not likely. Normally an act of intimidation,force, or physical or economic interference is necessary for a charge of obstructing the administration of justice or of hindering prosecution in Oregon. Merely asking someone to withhold cooperation is not enough.

What you describe might justify a charge of tampering with a witness but only if an official proceeding (e.g., a grand jury inquiry) had been instituted and the tamperor believes the tamperee is likely to be called as a witness.

AZlawyer
07-26-2010, 05:25 PM
BBM. In light of that, how do you interpret this?


Multnomah County Sheriff's Office has no comments regarding the July 8, 2010 Young/Horman press conferences - 07/08/10
There will be no comment from the Multnomah County Sheriff's Office regarding the information reported during the Horman/Young July 8, 2010 press conferences. The information released in during these conferences did NOT come from the Multnomah County Sheriff's Office. This is an ongoing investigation.

http://www.flashalert.net/news.html?id=1276

Thanks AZ!!!! :blowkiss:

Did KH/DY say at the 7/8/10 press conference that the information they were releasing came from the MCSO? The original question was whether KH/DY could "lie" about the source of the info.

BeanE
07-26-2010, 05:57 PM
Did KH/DY say at the 7/8/10 press conference that the information they were releasing came from the MCSO? The original question was whether KH/DY could "lie" about the source of the info.

First, let me state, as I have posted a number of times, that I do not think of Kaine/Desiree/Tony as "lying". I really don't like using that word. I believe they are speaking and acting through a filter of great pain, desperation, and trauma, and that, without intention or malice, do not always say to the media information that is accurate.

Now that's out of the way. :) In answer to your question:

Yes, for example, Kaine was asked how he came to his conclusions as stated by Kaine in the RO that Terri was involved in Kyron's disappearance, and that she tried to hire someone to murder him, and he answered based on the briefings with LE and the info provided.

http://www.katu.com/home/video/98077594.html

AZlawyer
07-26-2010, 06:28 PM
First, let me state, as I have posted a number of times, that I do not think of Kaine/Desiree/Tony as "lying". I really don't like using that word. I believe they are speaking and acting through a filter of great pain, desperation, and trauma, and that, without intention or malice, do not always say to the media information that is accurate.

Now that's out of the way. :) In answer to your question:

Yes, for example, Kaine was asked how he came to his conclusions as stated by Kaine in the RO that Terri was involved in Kyron's disappearance, and that she tried to hire someone to murder him, and he answered based on the briefings with LE and the info provided.

http://www.katu.com/home/video/98077594.html

I guess I don't see that anyone has to be "mistruthing" here. KH says that LE gave him information, from which HE CONCLUDED that Terri was involved. LE says the information released did not come from us, so we have no comment on it. They might mean: (1) we never told Kaine that Terri was involved (but gave him information from which he could have reached that conclusion), or (2) the information release you (the media) are asking us about did not come from us--it came from Kaine--so we are not going to comment on it.

Of course, LE might mean (3) we never gave any information to Kaine from which he could reasonably have concluded that Terri was involved and have no idea WTF he's talking about. But I think LE would be more vocal and less coy if that were the case.

Jo in Calif
07-26-2010, 06:34 PM
I guess I don't see that anyone has to be "mistruthing" here. KH says that LE gave him information, from which HE CONCLUDED that Terri was involved. LE says the information released did not come from us, so we have no comment on it. They might mean: (1) we never told Kaine that Terri was involved (but gave him information from which he could have reached that conclusion), or (2) the information release you (the media) are asking us about did not come from us--it came from Kaine--so we are not going to comment on it.

Of course, LE might mean (3) we never gave any information to Kaine from which he could reasonably have concluded that Terri was involved and have no idea WTF he's talking about. But I think LE would be more vocal and less coy if that were the case.

Boy you gave me a good laugh on your last statement, loved it.

Kimster
07-26-2010, 06:53 PM
Have any of our verified lawyers ever charged a $350,000 retainer fee???

AZlawyer
07-26-2010, 07:32 PM
Have any of our verified lawyers ever charged a $350,000 retainer fee???

Nope. Not yet lol. :)

kappy50
07-26-2010, 07:36 PM
az....curious..and I am sure this is an absolutely dumb question...if Mr.Houze has information about where little buddy Kyron may be, does he have to disclose this to LE.

AZlawyer
07-26-2010, 07:41 PM
az....curious..and I am sure this is an absolutely dumb question...if Mr.Houze has information about where little buddy Kyron may be, does he have to disclose this to LE.

No. :(

butterfly1978
07-26-2010, 08:16 PM
No. :(

Are you serious????? Then how is that not aiding and ebedding? Or acessory after the fact? I'm not doubting you but Geez our justice system is screwed.

Calliope
07-26-2010, 08:26 PM
No. :(

As an officer of the Court, what are his obligations to the court? What is he required to do legally and ethically? For example, could he lie to the Court (assuming he had this information) and say his client has no knowledge of Kyron's whereabouts?

ETA: "As officers of the court lawyers have an absolute ethical duty to tell judges the truth..."

Would the judge ask him if he's aware of what happened to Kyron?

AZlawyer
07-26-2010, 10:34 PM
Are you serious????? Then how is that not aiding and ebedding? Or acessory after the fact? I'm not doubting you but Geez our justice system is screwed.

Attorney-client privilege is considered to have a lot of benefits that outweigh some obvious detriments.


As an officer of the Court, what are his obligations to the court? What is he required to do legally and ethically? For example, could he lie to the Court (assuming he had this information) and say his client has no knowledge of Kyron's whereabouts?

ETA: "As officers of the court lawyers have an absolute ethical duty to tell judges the truth..."

Would the judge ask him if he's aware of what happened to Kyron?

He can't lie, and he can't put his client on the stand if he knows his client is going to lie. The judge would never ask him what his client told him, because that would be an obvious violation of attorney-client privilege.

nursebeeme
07-27-2010, 01:17 PM
question for our wonderful lawyer:

if DDS is granted transactional immunity for her testimony would this protect her in any future civil suits filed against her (for example by the family)?

Also, if she takes transactional immunity... is this normal? Would she do it if she had nothing to add to the case? Or would her lawyer ask for this just to cover all the bases???

TIA

AZlawyer
07-27-2010, 02:20 PM
question for our wonderful lawyer:

if DDS is granted transactional immunity for her testimony would this protect her in any future civil suits filed against her (for example by the family)?

Also, if she takes transactional immunity... is this normal? Would she do it if she had nothing to add to the case? Or would her lawyer ask for this just to cover all the bases???

TIA

No, I don't think immunity granted by the government can affect the family's private right to sue.

It might just be a CYA thing that her lawyer requested immunity. Or there could be, for example, some very minor potential criminal liability that they just want to make sure is covered. E.g., if she used Terri's ID at the gym, as some have speculated, that would likely have been a criminal act, as she would have falsely represented herself as another person in order to obtain services (use of the gym) that she had not paid for.

BeanE
07-27-2010, 02:31 PM
Yesterday out on the intertubes I found references saying that at a grand jury, the person being investigated can request to present evidence, and it's up to the prosecutor to allow them. It said that most of the time, these requests are granted.

I can't find anything specific to Oregon though saying that. Any chance you know if that's allowed in Oregon?

Thanks! :blowkiss:

GrainneDhu
07-27-2010, 04:29 PM
First off, thank you to the lawyers who are taking their time to answer questions. It has been most interesting and informative.

My question has to do with this: KH has filed a motion to discover where TMH is getting the funds to pay the alleged $350K fee to her lawyer.

If she shows that the money came from her parents, does KH have any further rights of discovery as where TMH's parents raised the money?

Say, for instance, that her parents mortgaged their home and cashed in some of their retirement funds to pay the fee, that's clearly their business. But what if KH suspects that TMH's parents may have struck a deal with one or more media outlets for photographs of Kyron that they (TMH's parents) took with their own camera(s)? Does he have any right to that information before the photos are published? Does he have any right to the proceeds from those photos or to forbid them from being published?

In other words, how much of a fishing expedition can KH mount into the finances of TMH's parents?

TxLady2
07-27-2010, 04:45 PM
I have a question regarding the grand jury. Do the prosecutors have to present the case with specific charges in mind, or can they present the case to them and let the GJ decide? I'm asking because the talking heads are calling this an "investigating grand jury." Could it perhaps be a special grand jury? Can they hear the evidence and then make a determination of what the charges should be?
Okay.... that was three questions. Sorry.

Billylee
07-27-2010, 04:54 PM
Yesterday out on the intertubes I found references saying that at a grand jury, the person being investigated can request to present evidence, and it's up to the prosecutor to allow them. It said that most of the time, these requests are granted.

I can't find anything specific to Oregon though saying that. Any chance you know if that's allowed in Oregon?

Thanks! :blowkiss:

BeanE, I'm not a lawyer for sure! But I sat on a GJ here in Oregon a few years back, and there was one case we had where the investigated person was indeed allowed to come before us and present their own evidence.

AZlawyer
07-27-2010, 10:45 PM
First off, thank you to the lawyers who are taking their time to answer questions. It has been most interesting and informative.

My question has to do with this: KH has filed a motion to discover where TMH is getting the funds to pay the alleged $350K fee to her lawyer.

If she shows that the money came from her parents, does KH have any further rights of discovery as where TMH's parents raised the money?

Say, for instance, that her parents mortgaged their home and cashed in some of their retirement funds to pay the fee, that's clearly their business. But what if KH suspects that TMH's parents may have struck a deal with one or more media outlets for photographs of Kyron that they (TMH's parents) took with their own camera(s)? Does he have any right to that information before the photos are published? Does he have any right to the proceeds from those photos or to forbid them from being published?

In other words, how much of a fishing expedition can KH mount into the finances of TMH's parents?

The question KH is asking is whether the money is marital property. If it came from her parents, it is not marital property IMO and he would have no right to ask more questions about it. Also, if TH's parents sold pics of Kyron that they took themselves, that would be none of KH's business as well. He would have no rights to any such photographs.


I have a question regarding the grand jury. Do the prosecutors have to present the case with specific charges in mind, or can they present the case to them and let the GJ decide? I'm asking because the talking heads are calling this an "investigating grand jury." Could it perhaps be a special grand jury? Can they hear the evidence and then make a determination of what the charges should be?
Okay.... that was three questions. Sorry.

I don't know the specific procedures in Oregon, but certainly the charges that come out at the end of the GJ proceeding may not be the same as the ones initially suggested by the prosecutor.

Billylee
07-28-2010, 01:06 PM
Question

If TH, as stepmother responsible for the welfare of her stepson, was hiding Kyron somewhere and she deemed it was for his own protection, and has something (?) to base that on, could she be charged with kidnapping?

desquire
07-28-2010, 01:29 PM
Question

If TH, as stepmother responsible for the welfare of her stepson, was hiding Kyron somewhere and she deemed it was for his own protection, and has something (?) to base that on, could she be charged with kidnapping?
Yes, but she has a defense to the charge if she, as a relative of a child, took or confined that child solely to "assume control" of the child.

She could be charged with custodial interference, however, regardless of her motivation.

kappy50
07-28-2010, 02:05 PM
How long might one think it would take a judge to rule on the motion of the lawyer fee ???

Calliope
07-28-2010, 02:43 PM
How long might one think it would take a judge to rule on the motion of the lawyer fee ???

to add

http://www.oregonlive.com/portland/index.ssf/2010/07/kaine_horman_asks_court_to_hav.html

Scroll down to Scribd window. The judge has signed and dated the order, but there is nothing filled in the blanks as to date and time by which she has to respond. Does this mean he has ruled?

desquire
07-28-2010, 04:44 PM
to add

http://www.oregonlive.com/portland/index.ssf/2010/07/kaine_horman_asks_court_to_hav.html

Scroll down to Scribd window. The judge has signed and dated the order, but there is nothing filled in the blanks as to date and time by which she has to respond. Does this mean he has ruled?

The judge has basically ordered TH to appear and defend against KH's request for her to pay his legal costs in the divorce proceeding. Since the blanks for date and time are not filled in, that just means that the clerk had not yet calendared the hearing at the time the order was signed.
I wouldn't expect this issue to be heard or resolved as quickly as the RO was. Depending on the judge's docket, this might not even be heard for a few months. And given the amount of money involved, it's a pretty safe bet that TH will contest.

AZlawyer
07-28-2010, 04:45 PM
How long might one think it would take a judge to rule on the motion of the lawyer fee ???


to add

http://www.oregonlive.com/portland/index.ssf/2010/07/kaine_horman_asks_court_to_hav.html

Scroll down to Scribd window. The judge has signed and dated the order, but there is nothing filled in the blanks as to date and time by which she has to respond. Does this mean he has ruled?

The request for an order to show cause was made "ex parte" (without the involvement of TH or her lawyer) and signed by the judge immediately. I would assume that someone at KH's attorney's office noticed that the judge failed to fill in a hearing time and that the date and time has since been filled in. Normally OSC hearings are set pretty quickly, so there should be a hearing on whether or not TH has to disclose the source of the funds within the next week or two.

Littleone48
07-28-2010, 04:55 PM
It just means LE is giving you info; they call it a "briefing" when they call you in for a meeting to give you information (rather than to get information from you). You certainly can't tell from the use of that word whether or not it was a very informative briefing.

I think, if KH and DY were lying about getting info at a briefing, then either (1) LE asked them to spread misinformation for some strategic reason, or (2) LE would privately tell KH and DY to correct their statements, and if KH and DY did not do so, then LE would do it for them.



Yes, but just the usual "confidential information"--should be things like Social Security numbers.

Thank you for that information. Today I read the article a bit further and this is what I read:
FAMILY LAW NOTICE OF NONDISCLOSURE OF CONFIDENTIAL INFORMATION FORM there is another form FAMILY LAW NOTICE OF NONDISCLOSURE OF CONFIDENTIAL INFORMATION FORM which states the following
The disclosure of information pertaining to the parties’ family information and other matters involved in this proceeding [ongoing criminal investigation] will make the parties the target of further media and public scrutiny. The disclosure of this information will be detrimental to the petitioner and his privacy rights, and could affect the interests and privacy rights of other family members. and this
The information contained in the pleadings filed with the Court may be potentially embarrassing for the parties or for family members. It is likely that if public access to this file is allowed, this information will be disseminated in the media. and finally this
This is a private family matter that should not be disseminated by the press and there is no public policy served by allowing public access to these records. Such access may be embarrassing to the parties, damaging to the family, and disruptive to the Court proceedings.

For some reason I just cannot get past this as only being about SS numbers and addresses. Am I reading too much into it?

Thank you in advance for your insight into these documents.

gliving
07-28-2010, 06:03 PM
Dear Attorneys,

Thanks so much for your imput!

My question is: if Mr. Houze is convinced he can prove Terri is innocent, could he delay making her pay his fees until she is free to make her book deals etc?

AZlawyer
07-28-2010, 06:16 PM
Thank you for that information. Today I read the article a bit further and this is what I read:
FAMILY LAW NOTICE OF NONDISCLOSURE OF CONFIDENTIAL INFORMATION FORM there is another form FAMILY LAW NOTICE OF NONDISCLOSURE OF CONFIDENTIAL INFORMATION FORM which states the following and this and finally this

For some reason I just cannot get past this as only being about SS numbers and addresses. Am I reading too much into it?

Thank you in advance for your insight into these documents.

That language was from the "EX PARTE MOTION AND ORDER TO RESTRICT ACCESS TO FILE," not from the notice regarding the confidential information form.

AZlawyer
07-28-2010, 06:19 PM
Dear Attorneys,

Thanks so much for your imput!

My question is: if Mr. Houze is convinced he can prove Terri is innocent, could he delay making her pay his fees until she is free to make her book deals etc?

It sounds like she already paid him, so this is kind of a moot question. But in AZ and in many other states (not sure about Oregon), an attorney cannot take a criminal case "on contingency" (where you get paid only if you win)--if that's what you meant.

ella971
07-28-2010, 06:31 PM
It sounds like she already paid him, so this is kind of a moot question. But in AZ and in many other states (not sure about Oregon), an attorney cannot take a criminal case "on contingency" (where you get paid only if you win)--if that's what you meant.

AZ Lawyer this OT but I just wanted to tell you Thank You so much for helping out with all your advice. We are very lucky to have you.

Emma Peel
07-28-2010, 08:14 PM
Hello WS lawyers!

I have a question. Okay a few. ;)

1) There is a matter before the GJ. Is it likely the Murder-for-Hire? Is it the RO hush violation? Is it the Disappearing of Kyron? or... is it all 3.

2) Must they do first things first? If the prosecutor finds the Murder-for-Hire allegation is part of his Kyron disappearring circumstantial case ... must the Murder-for-Hire trial happen first? Could it be excluded from the Kyron Disappearing trial? If the MFH trial resulted in a not-guilty - would the MFH information be excluded or anything from the Kyron trial?

3) Would they arrest on MFH and try that case hoping to get a conviction and therefore wait to arrest on the Kyron disappearing ... given speedy trial rules? Would they want that MFH conviction done first?

4) Is the Divorce RO violation thing likely a separate issue from these two criminal things?

5) Do you have any idea what I'm asking, because now I'm not sure I do. LOL

6) The MFH and Kyron investigations must share lots of evidence. Is that a problem or a challenge?

7) What is the likely strategy here?

Thank you for your thoughts!

grandmaj
07-28-2010, 08:44 PM
With regard to the Grand Jury that was convened.

1. Would the GJ be for indictment or strictly as a method of getting sworn testimony from an unwilling witness.

2. Would the District Attorney legally be able to tell the parents if they weren't subpoenaed. My understanding has always been that secrecy meant beginning to end?

Thanks a bunch.

SmoothOperator
07-28-2010, 09:04 PM
If anyone could further explain the "abatement" that was filed in Terri's behalf concerning thye divorce proceedings...

This is something I have never heard of so don't know the first thing about what this means and what will happen as a result of IF a judge ruling in favor of such...

So any simplified version would be more than appreciated...

TIA...

Spookytube
07-28-2010, 09:08 PM
if the abatement (?) is granted, how long could the matters be put on hold??

xin
07-28-2010, 10:07 PM
AZ (and other lawyers): thanks!
Do you see any indication that LE has more on DeDe than a cell phone call record and a witness who says she left the work site?

AZlawyer
07-29-2010, 12:10 AM
Hello WS lawyers!

I have a question. Okay a few. ;)

1) There is a matter before the GJ. Is it likely the Murder-for-Hire? Is it the RO hush violation? Is it the Disappearing of Kyron? or... is it all 3.

2) Must they do first things first? If the prosecutor finds the Murder-for-Hire allegation is part of his Kyron disappearring circumstantial case ... must the Murder-for-Hire trial happen first? Could it be excluded from the Kyron Disappearing trial? If the MFH trial resulted in a not-guilty - would the MFH information be excluded or anything from the Kyron trial?

3) Would they arrest on MFH and try that case hoping to get a conviction and therefore wait to arrest on the Kyron disappearing ... given speedy trial rules? Would they want that MFH conviction done first?

4) Is the Divorce RO violation thing likely a separate issue from these two criminal things?

5) Do you have any idea what I'm asking, because now I'm not sure I do. LOL

6) The MFH and Kyron investigations must share lots of evidence. Is that a problem or a challenge?

7) What is the likely strategy here?

Thank you for your thoughts!

1) No way to tell, except it wouldn't be for the RO violation.

2) a) There is no requirement that either trial happen before the other one.
b) I am sure any decent defense attorney would attempt to exclude the MFH allegations from any trial regarding Kyron's disappearance. Without more information about what is eventually alleged to have happened to Kyron, it's tough to say whether that evidence will come in or not.
c) If the MFH trial occurred first and resulted in a not-guilty verdict, the individual items of evidence used at that trial might still come in at a trial regarding Kyron's disappearance. The not-guilty verdict would not automatically exclude the evidence.

3) It would completely depend on how much evidence they have re: what happened to Kyron. (I'm sorry that so many of these questions can't really be answered without more info!)

4) Yes, the RO violation is not really any big deal quite honestly--it's the sort of thing that happens all the time.

5) Ha I hope so :)

6) I'm sure the 2 investigations are pretty intertwined at the moment. That shouldn't be a problem as long as they have the same team of investigators working on both cases.

7) I think the strategy for now is (a) find out WTH happened to Kyron, (b) try to pressure TH into telling the truth. Strategy (b) may involve an arrest on the MFH plot, but hopefully they have more evidence than the landscaper's say-so.

AZlawyer
07-29-2010, 12:14 AM
With regard to the Grand Jury that was convened.

1. Would the GJ be for indictment or strictly as a method of getting sworn testimony from an unwilling witness.

2. Would the District Attorney legally be able to tell the parents if they weren't subpoenaed. My understanding has always been that secrecy meant beginning to end?

Thanks a bunch.

I don't see why they would need a GJ to get DDS to talk. LE should be able to get a subpoena without convening a GJ. I think they are seeking an indictment against...um....someone for...um...something. :waitasec:

They could tell the parents that there was a GJ convened, but not what was said by anyone. This would be true whether or not the parents were subpoenaed.

AZlawyer
07-29-2010, 12:18 AM
If anyone could further explain the "abatement" that was filed in Terri's behalf concerning thye divorce proceedings...

This is something I have never heard of so don't know the first thing about what this means and what will happen as a result of IF a judge ruling in favor of such...

So any simplified version would be more than appreciated...

TIA...


if the abatement (?) is granted, how long could the matters be put on hold??

I think the abatement request was a smart idea on the part of TH's divorce lawyer. It would mean that TH and KH would be divorced, but all the related issues about custody, etc., would be put on hold while the criminal issues are being resolved. This "on hold" time could go on for as long as the judge thinks it's appropriate. The only question is whether TH really has any criminal issues to resolve. :waitasec:

AZlawyer
07-29-2010, 12:19 AM
AZ (and other lawyers): thanks!
Do you see any indication that LE has more on DeDe than a cell phone call record and a witness who says she left the work site?

Not really. But this sheriff's department seems to be pretty good at not telling what evidence they have.

Calliope
07-29-2010, 12:24 AM
The request for an order to show cause was made "ex parte" (without the involvement of TH or her lawyer) and signed by the judge immediately. I would assume that someone at KH's attorney's office noticed that the judge failed to fill in a hearing time and that the date and time has since been filled in. Normally OSC hearings are set pretty quickly, so there should be a hearing on whether or not TH has to disclose the source of the funds within the next week or two.

Does that mean there will be more than one hearing? The first where she answers the OSC, and then where she actually discloses the source of her funds? Isn't that what happened with the OSC in the contempt charge? The attorneys met with the judge on the date in the order and then a hearing was scheduled for September 21, IIRC.

Just trying to understand the process.

palladore
07-29-2010, 01:18 AM
Two questions:

The local press reported that Dede's condo was searched by two men that a neighbor thought were wearing FBI jackets. Is there any significance to the fact that the search was carried out by FBI rather than local LE.

What sort of case would LE enforcement have needed to make to a judge in order to get a search warrant?

ladonna
07-29-2010, 07:52 AM
Is it legal for LE to share Terri's texting and emails to Kaine's divorce atty? Why would law enforcement get involved in a civil matter, ie, divorce?

desquire
07-29-2010, 10:56 AM
Two questions:

The local press reported that Dede's condo was searched by two men that a neighbor thought were wearing FBI jackets. Is there any significance to the fact that the search was carried out by FBI rather than local LE.

What sort of case would LE enforcement have needed to make to a judge in order to get a search warrant?
Typically, the FBI would only be involved if it related to a suspected violation of federal law or if it related to a missing person under 12 years of age.

Police must demonstrate to a judge that probable cause exists to believe that the thing being sought will be found in the place to be searched. "Probable cause" is a relatively low burden of proof but still requires a showing of some credible testimony or facts.

Patty G
07-29-2010, 11:36 AM
Can someone plead the fifth in front of the Grand Jury?
Are lawyers allowed to attend the Grand Jury hearing?
Can someone receive immunity before testimony in a Grand Jury hearing?

Kimster
07-29-2010, 11:37 AM
Taking off from PattyG's questions:

Does a person have to be on the stand in front of the Grand Jury before they plead the fifth?

AZlawyer
07-29-2010, 08:27 PM
Does that mean there will be more than one hearing? The first where she answers the OSC, and then where she actually discloses the source of her funds? Isn't that what happened with the OSC in the contempt charge? The attorneys met with the judge on the date in the order and then a hearing was scheduled for September 21, IIRC.

Just trying to understand the process.

Probably there will be 2 hearings, yes, unless the motion to abate is granted, in which case there will be zero hearings on this issue for now. :)

AZlawyer
07-29-2010, 08:29 PM
Two questions:

The local press reported that Dede's condo was searched by two men that a neighbor thought were wearing FBI jackets. Is there any significance to the fact that the search was carried out by FBI rather than local LE.

What sort of case would LE enforcement have needed to make to a judge in order to get a search warrant?

I really don't know the significance of the FBI doing the search vs. LE.

To get a search warrant, LE would have to explain what they thought DeDe had in her condo and why they thought that.

AZlawyer
07-29-2010, 08:30 PM
Is it legal for LE to share Terri's texting and emails to Kaine's divorce atty? Why would law enforcement get involved in a civil matter, ie, divorce?

It is not illegal for them to share the information. However, I doubt they did it to "get involved in the divorce"--I'm sure they shared the information in connection with the criminal investigation.

AZlawyer
07-29-2010, 08:33 PM
Can someone plead the fifth in front of the Grand Jury?
Are lawyers allowed to attend the Grand Jury hearing?
Can someone receive immunity before testimony in a Grand Jury hearing?

Yes.

No.

Yes. :)

AZlawyer
07-29-2010, 08:35 PM
Taking off from PattyG's questions:

Does a person have to be on the stand in front of the Grand Jury before they plead the fifth?

Well, technically, but most likely the prosecutor would have been told ahead of time that the person was planning to plead the 5th and would have tried to make arrangements for immunity beforehand if appropriate.

ZL27
07-29-2010, 08:47 PM
It is not illegal for them to share the information. However, I doubt they did it to "get involved in the divorce"--I'm sure they shared the information in connection with the criminal investigation.

If Terri's phone is on Kaine's account, would LE be able to legally give the texts to Kaine?

Edit: ignore my question. I misread your response to say, "it is not legal." My bad.

BeanE
07-29-2010, 09:23 PM
Well, technically, but most likely the prosecutor would have been told ahead of time that the person was planning to plead the 5th and would have tried to make arrangements for immunity beforehand if appropriate.

Dede didn't retain her attorney until Friday, courts are closed for the weekend, and she had to appear on Monday morning. How likely is it that if immunity was the issue, that there just wasn't time to arrange it prior to her appearance? I have no idea how long it takes to get immunity in place.

Thanks, AZ. :blowkiss:

AZlawyer
07-30-2010, 12:43 AM
Dede didn't retain her attorney until Friday, courts are closed for the weekend, and she had to appear on Monday morning. How likely is it that if immunity was the issue, that there just wasn't time to arrange it prior to her appearance? I have no idea how long it takes to get immunity in place.

Thanks, AZ. :blowkiss:

Oh, then it's definitely possible that she didn't mention wanting immunity until Monday AM, and her testimony had to be rescheduled.

angelainwi
07-30-2010, 01:15 AM
Typically, the FBI would only be involved if it related to a suspected violation of federal law or if it related to a missing person under 12 years of age.

Police must demonstrate to a judge that probable cause exists to believe that the thing being sought will be found in the place to be searched. "Probable cause" is a relatively low burden of proof but still requires a showing of some credible testimony or facts.

What about the BAU?

gitana1
07-30-2010, 01:20 AM
Have any of our verified lawyers ever charged a $350,000 retainer fee???

Not me. But then again, I have never represented someone in a high profile imminent murder case and I never will!!

eyes4crime
08-02-2010, 05:31 PM
Can a person called before the GJ talk to the media or is his/her appearance confidential? I know from Drew Peterson's GH hearing, the jurors couldn't speak to the media - is that true for all states. TIA :blowkiss:

kappy50
08-02-2010, 05:58 PM
Would Teri's attorney know ahead of time...the GJ was meeting in regards to this case that involves/surrounds her ????

AZlawyer
08-02-2010, 06:38 PM
Can a person called before the GJ talk to the media or is his/her appearance confidential? I know from Drew Peterson's GH hearing, the jurors couldn't speak to the media - is that true for all states. TIA :blowkiss:

I'm not sure what the rule is in Oregon. I reviewed the statutes and didn't see anything about witnesses being sworn to secrecy--only jurors. Also, I believe the witnesses would have a First Amendment right to disclose information known by them, even if they cannot disclose what actually happened during the grand jury proceedings (e.g., what questions were asked).

E.g., if someone said to DDS, "Did you meet up with Terri on June 4?" IMO the State of Oregon could not prohibit her from answering just because the grand jury might have asked her the same question.


Would Teri's attorney know ahead of time...the GJ was meeting in regards to this case that involves/surrounds her ????

Probably not.

Tiki
08-02-2010, 06:43 PM
If Kyron was kidnapped and taken across state lines, wouldn't that make it a case for the FBI to be called in on?
(Lindberg Law)

If so, does that exclude parental kidnapping and would Terri be considered a parent as Kyron's stepmother?

TIA

Barry
08-02-2010, 07:18 PM
I know LDT results cannot be used as evidence in a trial. Can it even be discussed in front of a GJ? TIA.

AZlawyer
08-02-2010, 07:28 PM
If Kyron was kidnapped and taken across state lines, wouldn't that make it a case for the FBI to be called in on?
(Lindberg Law)

If so, does that exclude parental kidnapping and would Terri be considered a parent as Kyron's stepmother?

TIA

Yes, an interstate kidnapping would be an FBI matter. I do not think parental kidnapping would be any exception, and in any event unless there was a step-parent adoption, I do not believe Terri would be considered Kyron's "parent."


I know LDT results cannot be used as evidence in a trial. Can it even be discussed in front of a GJ? TIA.

The evidentiary rules are a little looser than at trial, but still I don't believe any state in the country would allow LDT results to be presented to a GJ as evidence of probable cause.

I look at LDTs as a somewhat more sophisticated version of a LE officer saying, "That guy sure acts nervous. We ought to check out his story a little more."

RubyRed
08-03-2010, 12:07 AM
If Terri were to admit to her lawyer that she harmed Kyron or had him in hiding somewhere, what would the lawyer do? Would it be kept confidential ? Does a lawyer ask if his client did it? Or would they rather not know? Thanks

SmoothOperator
08-03-2010, 01:03 AM
Yes, Ruby Red has posted something much similar to what I'd like to know, how exactly does this work? I know there have had to be clients that over the course of time have confided in their atty that they are guilty of the crime and here is where the body is hidden. This has had to have happened several times, so whats the policy? what does a defense atty do?... And esp. if the case is this precious innocent young child like Kyron? would they just continuing to represent the murderer and continue letting parents of such child suffer when the atty knows who the killer was and where the body is? This is something I have wondered for quite some time? TIA..

AZlawyer
08-03-2010, 03:07 PM
If Terri were to admit to her lawyer that she harmed Kyron or had him in hiding somewhere, what would the lawyer do? Would it be kept confidential ? Does a lawyer ask if his client did it? Or would they rather not know? Thanks


Yes, Ruby Red has posted something much similar to what I'd like to know, how exactly does this work? I know there have had to be clients that over the course of time have confided in their atty that they are guilty of the crime and here is where the body is hidden. This has had to have happened several times, so whats the policy? what does a defense atty do?... And esp. if the case is this precious innocent young child like Kyron? would they just continuing to represent the murderer and continue letting parents of such child suffer when the atty knows who the killer was and where the body is? This is something I have wondered for quite some time? TIA..

No, the attorney could not reveal his client's confession or information about where the body is, and certainly would not have to withdraw from the representation. The vast majority of criminal defendants are, in fact, guilty, so a criminal defense lawyer who insisted on representing only innocent people would get hungry pretty fast. My understanding is that defense attorneys discourage their clients from telling them such information, however, and focus on ensuring procedual fairness and getting the lowest possible sentence for a client who is obviously guilty.

This is why I could never be a defense attorney. The ethics are too complex for me lol. I prefer to sleep at night. ;)

SmoothOperator
08-03-2010, 06:20 PM
No, the attorney could not reveal his client's confession or information about where the body is, and certainly would not have to withdraw from the representation. The vast majority of criminal defendants are, in fact, guilty, so a criminal defense lawyer who insisted on representing only innocent people would get hungry pretty fast. My understanding is that defense attorneys discourage their clients from telling them such information, however, and focus on ensuring procedual fairness and getting the lowest possible sentence for a client who is obviously guilty.

This is why I could never be a defense attorney. The ethics are too complex for me lol. I prefer to sleep at night. ;)

Thank you so very much, AZ.. You always respond so very quickly and it is so very much appreciated..

However I was very afraid that this was something similar as to what you have let us know about defense attys... and believe me, I understand the whole right of even the guilty to a "fair" trial, but is it just me or does it seem as tho the "guilty" parties seem to have so many more rights than those of the poor, poor, innocent victims(and their fams that are left behind to live everyday having NO CLOSURE), especially in a case such as this with a small, innocent child... It just seems so VERY VERY WRONG in absolutely every single way... How can this be??
That an official of the courts can be privy to such extremely crucial knowledge(such as the whereabouts of a babies body)and NOT be compelled to share this knowledge for the very sake of these parents whose hearts have been ripped from their very souls?? I just cannot make sense of this???!!!!...

BeanE
08-03-2010, 06:51 PM
Hi AZ! :blowkiss:

If one is subpoenaed by a GJ, what can one say or not say prior to appearing? That one has been subpoenaed? When it is? Or?

After appearing, what can one say? That one appeared? That one testified? That one did not testify? That one plead the fifth? Or?

This is being discussed in this thread:
2010.08 03 - GJ Subpoena Issued To Another Friend Of Terri Horman - Websleuths Crime Sleuthing Community


because an article was just published wherein a friend of Terri claims she has been subpoenaed and will appear on Thursday. Also I noticed KGW and Oregonian both reported that Kaine confirmed he appeared (not that he testified, just appeared), and he would not comment on what Desiree or Tony were there for.

Thanks!

AZlawyer
08-03-2010, 07:02 PM
Thank you so very much, AZ.. You always respond so very quickly and it is so very much appreciated..

However I was very afraid that this was something similar as to what you have let us know about defense attys... and believe me, I understand the whole right of even the guilty to a "fair" trial, but is it just me or does it seem as tho the "guilty" parties seem to have so many more rights than those of the poor, poor, innocent victims(and their fams that are left behind to live everyday having NO CLOSURE), especially in a case such as this with a small, innocent child... It just seems so VERY VERY WRONG in absolutely every single way... How can this be??
That an official of the courts can be privy to such extremely crucial knowledge(such as the whereabouts of a babies body)and NOT be compelled to share this knowledge for the very sake of these parents whose hearts have been ripped from their very souls?? I just cannot make sense of this???!!!!...

I assume this is a rhetorical question? ;) People get confused about the phrase "officer of the court" and think it means more than it does. For me personally, I couldn't do this work, and I'm probably not the person to ask for an explanation of the social utility of the ethics rules as applied to criminal defense lawyers. All I can say is that it is generally accepted in the legal community that this system is better than any of the alternatives.

AZlawyer
08-03-2010, 07:09 PM
Hi AZ! :blowkiss:

If one is subpoenaed by a GJ, what can one say or not say prior to appearing? That one has been subpoenaed? When it is? Or?

After appearing, what can one say? That one appeared? That one testified? That one did not testify? That one plead the fifth? Or?

This is being discussed in this thread:
2010.08 03 - GJ Subpoena Issued To Another Friend Of Terri Horman - Websleuths Crime Sleuthing Community (http://www.websleuths.com/forums/showthread.php?t=110943)


because an article was just published wherein a friend of Terri claims she has been subpoenaed and will appear on Thursday. Also I noticed KGW and Oregonian both reported that Kaine confirmed he appeared (not that he testified, just appeared), and he would not comment on what Desiree or Tony were there for.

Thanks!

Hi, BeanE. The rules vary from state to state. I can't find anything in Oregon requiring the silence of a WITNESS (as opposed to a grand juror) on any subject. And I believe the US Supreme Court has explained that a grand jury witness has a First Amendment right to at least speak about the actual INFORMATION he or she knows, even if there is a state law preventing him or her from speaking about the specific testimony given to the grand jury.

Calliope
08-03-2010, 11:43 PM
Hi, BeanE. The rules vary from state to state. I can't find anything in Oregon requiring the silence of a WITNESS (as opposed to a grand juror) on any subject. And I believe the US Supreme Court has explained that a grand jury witness has a First Amendment right to at least speak about the actual INFORMATION he or she knows, even if there is a state law preventing him or her from speaking about the specific testimony given to the grand jury.

Section 132.330 - Submission of indictment by district attorney

The district attorney may submit an indictment to the grand jury in any case when the district attorney has good reason to believe that a crime has been committed which is triable within the county. [Amended by 1973 c.836 §47]

Section 132.410 - Finding of indictment; filing; inspection

An indictment, when found and indorsed, as provided in ORS 132.400 and 132.580, shall be filed with the clerk of the court, in whose office it shall remain as a public record. Upon being designated by the district attorney as confidential and until after the arrest of a defendant who has not been held to answer the charge, the indictment or any order or process in relation thereto shall not be inspected by any person other than the judge, the clerk of the court, the district attorney or a peace officer in the discharge of a duty concerning the indictment, order or process. [Amended by 1973 c.836 §52; 1999 c.967 §2]

Section 132.420 - Disclosure relative to indictment not subject to inspection

No grand juror, reporter or other person except the district attorney or a peace officer in the exercise of duties in effecting an arrest shall disclose any fact concerning any indictment while it is not subject to public inspection. [Amended by 1973 c.836 §53]

Section 132.990 - Premature inspection or disclosure of contents of indictment.

Violation of ORS 132.420 or the prohibitions of ORS 132.410 is punishable as contempt.




Could that be interpreted to mean witnesses (no other person shall disclose any fact concerning the indictment, order or process) It doesn't specify that its referring only to those working for the state or grand jury. It simply states no other person and shall not by any person. And until it's subject to public inspection, "no other person" can disclose any fact regarding the indictment.

http://law.onecle.com/oregon/132-grand-jury-indictments-and-other/index.html

AZlawyer
08-04-2010, 01:15 AM
Section 132.330 - Submission of indictment by district attorney

The district attorney may submit an indictment to the grand jury in any case when the district attorney has good reason to believe that a crime has been committed which is triable within the county. [Amended by 1973 c.836 §47]

Section 132.410 - Finding of indictment; filing; inspection

An indictment, when found and indorsed, as provided in ORS 132.400 and 132.580, shall be filed with the clerk of the court, in whose office it shall remain as a public record. Upon being designated by the district attorney as confidential and until after the arrest of a defendant who has not been held to answer the charge, the indictment or any order or process in relation thereto shall not be inspected by any person other than the judge, the clerk of the court, the district attorney or a peace officer in the discharge of a duty concerning the indictment, order or process. [Amended by 1973 c.836 §52; 1999 c.967 §2]

Section 132.420 - Disclosure relative to indictment not subject to inspection

No grand juror, reporter or other person except the district attorney or a peace officer in the exercise of duties in effecting an arrest shall disclose any fact concerning any indictment while it is not subject to public inspection. [Amended by 1973 c.836 §53]

Section 132.990 - Premature inspection or disclosure of contents of indictment.

Violation of ORS 132.420 or the prohibitions of ORS 132.410 is punishable as contempt.




Could that be interpreted to mean witnesses (no other person shall disclose any fact concerning the indictment, order or process) It doesn't specify that its referring only to those working for the state or grand jury. It simply states no other person and shall not by any person. And until it's subject to public inspection, "no other person" can disclose any fact regarding the indictment.

http://law.onecle.com/oregon/132-grand-jury-indictments-and-other/index.html

No, the witnesses wouldn't know anything about the indictment, and "process" in this context means the kind of "process" that a "process server" handles, not the kind of "process" like "we sure had to go through a long process to get this indictment." :)

Calliope
08-04-2010, 01:20 AM
No, the witnesses wouldn't know anything about the indictment, and "process" in this context means the kind of "process" that a "process server" handles, not the kind of "process" like "we sure had to go through a long process to get this indictment." :)
Thanks. I couldn't get past the "no other person"; seems a bit vague at least to me who knows nothing lol.

wondering1
08-04-2010, 01:24 AM
Thanks. I couldn't get past the "no other person"; seems a bit vague at least to me who knows nothing lol.

"any other person" means exactly that. It's not vague, it's broad. No one, other than those specifically identified, can see "the indictment or any order or process in relation thereto" until the defendant has been arrested, when they are not already in custody.

eta: or disclose any facts relating to it...those provisions refer to an actual indictment. Not to disclosure of anything leading up to it in the GJ. Separate issue. Not sure if that's what you're wondering about.

Calliope
08-04-2010, 01:28 AM
"any other person" means exactly that. It's not vague, it's broad. No one, other than those specifically identified, can see "the indictment or any order or process in relation thereto" until the defendant has been arrested, when they are not already in custody.


No grand juror, reporter or other person except the district attorney or a peace officer in the exercise of duties in effecting an arrest shall disclose any fact concerning any indictment while it is not subject to public inspection.

That's what has me confuzzled. Testimony given wouldn't be considered a 'fact' concerning the indictment?

I trust you two and I'm not arguing the point; just trying desperately to wrap my mind around this legalese.

Calliope
08-04-2010, 01:33 AM
"any other person" means exactly that. It's not vague, it's broad. No one, other than those specifically identified, can see "the indictment or any order or process in relation thereto" until the defendant has been arrested, when they are not already in custody.

eta: or disclose any facts relating to it...those provisions refer to an actual indictment. Not to disclosure of anything leading up to it in the GJ. Separate issue. Not sure if that's what you're wondering about.

Ok, didn't see your edit when I posted; this is why I included this section:

Section 132.330 - Submission of indictment by district attorney

The district attorney may submit an indictment to the grand jury in any case when the district attorney has good reason to believe that a crime has been committed which is triable within the county.

To me, that means the DA submits the indictment and then the grand jury hears testimony and views evidence, then votes on whether to indorse it. Which in my feeble mind reads as though the indictment is part of the process from the very start, and therefore the above restrictions would apply to witnesses as well ("no other person").

That was the basis for my question and obvious confusion.

Did that make sense?

IBsleuthin
08-04-2010, 02:46 AM
If Terri Horman were to be called to testify in front of ANY jury be it the Grand Jury or any other jury and she PLEADED THE 5TH, could she then be charged with 'not cooperating' and face jail time and fines?

Thank you so much in advance for answering this, I have read this question over and over on many different news sites.

TxLady2
08-04-2010, 10:40 AM
My son tells me that the DA can present a request for indictment, but the GJ can also decide to go with a lesser charge, if they feel the evidence is not sufficient. For instance, the DA can present a charge of 1st degree homicide, and the GJ can indict on a lesser charge... 2nd degree or manslaughter.
Or they can 'no bill' the whole thing and then the DA can present the case to them at a later time if they find more evidence (and in the hopes there will be a different GJ.) He said some cases have been brought before a GJ several times before they secure an indictment.

AZlawyer
08-04-2010, 04:08 PM
No grand juror, reporter or other person except the district attorney or a peace officer in the exercise of duties in effecting an arrest shall disclose any fact concerning any indictment while it is not subject to public inspection.

That's what has me confuzzled. Testimony given wouldn't be considered a 'fact' concerning the indictment?

I trust you two and I'm not arguing the point; just trying desperately to wrap my mind around this legalese.

No, testimony given would not be a fact concerning the indictment.


If Terri Horman were to be called to testify in front of ANY jury be it the Grand Jury or any other jury and she PLEADED THE 5TH, could she then be charged with 'not cooperating' and face jail time and fines?

Thank you so much in advance for answering this, I have read this question over and over on many different news sites.

No way. That's the whole point of the 5th Amendment--you can't be punished criminally for refusing to talk.

eyes4crime
08-04-2010, 05:29 PM
So many legal questions - sorry.

Can the GJ request information that would enhance their understanding in a case? For instance: Can the GJ request that a subpoena be issued for Terri's bank statements? TIA :blowkiss:

ThoughtFox
08-04-2010, 05:41 PM
This is a complicated question.

I'm going completely insane reading about Terri's right to own multiple cellphones to evade police.

What is the important thing here, legally? :waitasec:

I know she is involved in a divorce and custody battle. I know she has a right to talk to attorney/client privilege about whatever, but wouldn't one cell phone suffice?

And couldn't (or shouldn't) the attorney himself have bought that for her? What's normal?

And also, since her text messages and sexting with various people have led to the MFH plot, wouldn't a good defense attorney tell her to cut it out for a while instead of implicating her friends as accomplices who bought her new phones? (That's assuming that her attorney even knew about the phones - which may or may not be true.

So I guess my main question is how common is it for a defense attorney to say that his client needs to use multiple phones to stay one step ahead of a police subpoena?

desquire
08-04-2010, 05:57 PM
So many legal questions - sorry.

Can the GJ request information that would enhance their understanding in a case? For instance: Can the GJ request that a subpoena be issued for Terri's bank statements? TIA :blowkiss:

It's the DA's job to make the case for an indictment and the Gj just decides whether the evidence submitted is sufficient, if true, to bring a charge. If the DA's case is falling just short due to the absenec of a particular fact that raises doubts among the GJ, there are ways of communicating that so the DA can obtain that evidence/testimony prior to the GJ rendering a decision. On the flip side, if an Oregon GJ believes there is obtainable evidence or testimony that will explain away the charges, it can order the DA to subpoena such evidence/testimony.

desquire
08-04-2010, 06:23 PM
If Terri Horman were to be called to testify in front of ANY jury be it the Grand Jury or any other jury and she PLEADED THE 5TH, could she then be charged with 'not cooperating' and face jail time and fines?

Totally agree with AZLawyer on the 5th Amendment issue. To take it a step further, since the 5th Amend. only applies to self-incrimination, I'd clarify for you that it is not a crime for anyone to merely refuse to talk or cooperate with LE. Unless a person uses force, intimidation, or some other type of physical or economic interference with the specific intent of obstructing or hindering an investigation or prosecution, it's not a crime.

desquire
08-04-2010, 06:43 PM
So I guess my main question is how common is it for a defense attorney to say that his client needs to use multiple phones to stay one step ahead of a police subpoena?

A competent defense attorney would never say that since the statement could be viewed as evidence of intent to hinder the prosecution by an act of concealment. A competent defense attorney would say that the client does not feel comfortable using the cell phone account held jointly with her estranged husband in the midst of an acrimonius divorce and, having no independent means, is merely relying on the generosity of her many friends that have stepped forward to offer her telecommunications services among other things in her time of need

wondering1
08-04-2010, 06:44 PM
Ok, didn't see your edit when I posted; this is why I included this section:

Section 132.330 - Submission of indictment by district attorney

The district attorney may submit an indictment to the grand jury in any case when the district attorney has good reason to believe that a crime has been committed which is triable within the county.

To me, that means the DA submits the indictment and then the grand jury hears testimony and views evidence, then votes on whether to indorse it. Which in my feeble mind reads as though the indictment is part of the process from the very start, and therefore the above restrictions would apply to witnesses as well ("no other person").

That was the basis for my question and obvious confusion.

Did that make sense?


I understand your question completely, and I have an answer, but OMG!!!!, I just realized that I was posting in the verified lawyers thread. Yikes. If you ask me in the regular thread, I'll give you my humble opinion.

Sorry mods! :blushing:

IBsleuthin
08-04-2010, 10:27 PM
No, testimony given would not be a fact concerning the indictment.



No way. That's the whole point of the 5th Amendment--you can't be punished criminally for refusing to talk.

Thank you SO MUCH for being on here and taking the time to answer these questions. Seriously it helps a lot to have just good honest information.

gliving
08-05-2010, 09:09 AM
If a subpoenaed person was unable to attend the grand jury in person, would it possible for them to testify via video teleconference?

Thanks!

desquire
08-05-2010, 01:16 PM
In response to AbbyNorma, who asked on a now-closed thread: "One more question then I have to get out of here for awhile (RL calls) WHAT IF Terri had Kyron stashed, lets even say she had him stashed with a sexual pervert/ offender, and Terri was honest w/ her atty about this...would the atty STILL not be obligated to tell LE that Kyron was at such and such location with a sex offender, possibly being sexually abused day after day????"

Lawyers owe a strict ethical duty of confidentiality to their clients but there is an exception that allows the lawyer to disclose confidential communications to the extent necessary to prevent a death or serious bodily harm.

Billylee
08-05-2010, 01:50 PM
If a subpoenaed person was unable to attend the grand jury in person, would it possible for them to testify via video teleconference?

Thanks!


When I was on an OR GJ, we swore in and heard from several LE via a telecam from other locations. So, I would assume it could be done for other witnesses besides LE. Also, FYI we also received letters from DNA and Drug Testing Professionals to be viewed as testimony.

ThoughtFox
08-05-2010, 05:38 PM
A competent defense attorney would never say that since the statement could be viewed as evidence of intent to hinder the prosecution by an act of concealment. A competent defense attorney would say that the client does not feel comfortable using the cell phone account held jointly with her estranged husband in the midst of an acrimonius divorce and, having no independent means, is merely relying on the generosity of her many friends that have stepped forward to offer her telecommunications services among other things in her time of need

Thank you - I was just repeating the sentiment I had seen in several posts that day. It seemed extremely unlikely to me that any competent attorney would do that.

However, I don't think the excuse about the friends and phones would completely hold water with a judge, especially multiple phones before the divorce was filed. JMO

Billylee
08-05-2010, 08:16 PM
If a subpoenaed person was unable to attend the grand jury in person, would it possible for them to testify via video teleconference?

Thanks!

Here's the actual statue:

(5) A grand jury may receive testimony of a witness by means of simultaneous television transmission allowing the grand jury and district attorney to observe and communicate with the witness and the witness to observe and communicate with the grand jury and the district attorney.

from this link with lots of other interesting stuff:
http://law.onecle.com/oregon/132-grand-jury-indictments-and-other/132.320.html

Calliope
08-06-2010, 01:42 AM
Assuming Terri is the one the prosecutor has asked the grand jury to indict ...

If they do not do so, can he present the case again to another grand jury? How many times can a case against a particular suspect be brought before a grand jury? What rules must the prosecutor follow in order to do that? For example, would he have to be able to present new evidence or witnesses? Or can he just keep bringing up the same ol' stuff again and again until he finds a jury that will give him the indictment? If that is allowed (I shudder to think it would be), what recourse would the person have to put a stop to it, if at all?

Donjeta
08-06-2010, 07:05 AM
Assuming Terri is the one the prosecutor has asked the grand jury to indict ...

If they do not do so, can he present the case again to another grand jury? How many times can a case against a particular suspect be brought before a grand jury? What rules must the prosecutor follow in order to do that? For example, would he have to be able to present new evidence or witnesses? Or can he just keep bringing up the same ol' stuff again and again until he finds a jury that will give him the indictment? If that is allowed (I shudder to think it would be), what recourse would the person have to put a stop to it, if at all?

How much would it cost to have a grand jury sit on a case, and rehash it, and rehash it, and rehash it, and would the prosecution see any point doing so? If there is little enough evidence to convince only, say, one in four grand jurys to indict, what would be the odds of getting a conviction in a trial?

Calliope
08-06-2010, 07:39 AM
How much would it cost to have a grand jury sit on a case, and rehash it, and rehash it, and rehash it, and would the prosecution see any point doing so? If there is little enough evidence to convince only, say, one in four grand jurys to indict, what would be the odds of getting a conviction in a trial?

Well, I may have found the answer to our questions:



The grand jury may find an indictment when all the evidence before it, taken together, is such as in its judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.
---
When an indictment indorsed “not a true bill” has been filed with the clerk of the court, the effect thereof is to dismiss the charge; and the same cannot be again submitted to or inquired of by the grand jury unless the court so orders.

-----

So I'm guessing that the prosecutor only has one shot? What if he comes into new evidence after the grand jury refuses to indict, is it just too bad for him? Is this considered 'double jeopardy' to bring the same charges? I thought that referred to the actual trial (really getting confused).

In this case, if the prosecutor is trying to indict Terri for Kyron's murder and the grand jury doesn't feel there's enough evidence and refuses to indict her, what happens if at some point in the future he receives evidence that points to her guilt? Does the above mean a judge would have to review the evidence and then order the grand jury to meet again?

Calliope
08-06-2010, 07:44 AM
I asked about all this because I have a vague memory of Tom DeLay accusing the prosecutor of bringing charges up to a grand jury over and over again until he got his indictment. I can't remember all the details, and don't know if with each grand jury he presented new facts or just rehashed the old.

Tuffy
08-06-2010, 08:09 AM
Well, I may have found the answer to our questions:



The grand jury may find an indictment when all the evidence before it, taken together, is such as in its judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.
---
When an indictment indorsed “not a true bill” has been filed with the clerk of the court, the effect thereof is to dismiss the charge; and the same cannot be again submitted to or inquired of by the grand jury unless the court so orders.

-----

So I'm guessing that the prosecutor only has one shot? What if he comes into new evidence after the grand jury refuses to indict, is it just too bad for him? Is this considered 'double jeopardy' to bring the same charges? I thought that referred to the actual trial (really getting confused).

In this case, if the prosecutor is trying to indict Terri for Kyron's murder and the grand jury doesn't feel there's enough evidence and refuses to indict her, what happens if at some point in the future he receives evidence that points to her guilt? Does the above mean a judge would have to review the evidence and then order the grand jury to meet again?

I'm glad you asked about this, Calliope. I was wondering the same thing. I am hoping that the "unless the court so orders" could be cleared up too. That sounds kind of open to interpretation doesn't it?

AZlawyer
08-06-2010, 08:42 PM
Well, I may have found the answer to our questions:



The grand jury may find an indictment when all the evidence before it, taken together, is such as in its judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.
---
When an indictment indorsed “not a true bill” has been filed with the clerk of the court, the effect thereof is to dismiss the charge; and the same cannot be again submitted to or inquired of by the grand jury unless the court so orders.

-----

So I'm guessing that the prosecutor only has one shot? What if he comes into new evidence after the grand jury refuses to indict, is it just too bad for him? Is this considered 'double jeopardy' to bring the same charges? I thought that referred to the actual trial (really getting confused).

In this case, if the prosecutor is trying to indict Terri for Kyron's murder and the grand jury doesn't feel there's enough evidence and refuses to indict her, what happens if at some point in the future he receives evidence that points to her guilt? Does the above mean a judge would have to review the evidence and then order the grand jury to meet again?


I asked about all this because I have a vague memory of Tom DeLay accusing the prosecutor of bringing charges up to a grand jury over and over again until he got his indictment. I can't remember all the details, and don't know if with each grand jury he presented new facts or just rehashed the old.


I'm glad you asked about this, Calliope. I was wondering the same thing. I am hoping that the "unless the court so orders" could be cleared up too. That sounds kind of open to interpretation doesn't it?

There would be no "double jeopardy" problem with going back to a grand jury with the same evidence. But Oregon has put some protection in place by requiring a court order to resubmit a case to the GJ. My guess is that it would be tough to get such a court order without some new evidence, but certainly the statute quoted by Calliope seems to leave it up to the discretion of the judge.

Billylee
08-07-2010, 02:28 PM
I am puzzled as to why TH has not been arrested for the MFHP. I'm guessing they don't have any evidence other than the landscaper's testimony and perhaps he/she is not considered a very credible witness.

However, I have a question. If someone gets really ticked at their spouse and you know, says something to the effect of "I wish he/she were dead. I'd give you a million bucks to blow his/her head off". You know that sort of "heated" statement. Would that be considered a MFHP? Even though it may never have been intended as something the person really wanted anyone to do? Or does there have to be more than a conversation involved? Hope I'm making myself clear on this one. Thanks.

cluciano63
08-07-2010, 02:42 PM
On an American Bar Assoc site it states that double jeopardy does not apply to grand juries..."in practice, however, it is uncommon for a prosecutor, having failed once,to try again without good reason."

So probably new evidence would be considered good reason?
(I am not a lawyer...)

palladore
08-07-2010, 04:00 PM
I have a question about the manner in which a prosecutor presents his case to a Grand Jury. Lets assume that a prosecutor's case for indicting Jane Doe in based in large part on the testimony of witnesses. Would the key witnesses need to appear in person before the Grand Jury, or could a prosecutor instead tell the Grand Jury that that witnesses A, B, and C are cooperating with LE and the DA and are willing to testify that they saw Jane Doe do X, Y, and Z?

Thank You.

Calliope
08-07-2010, 09:33 PM
This post brought up a question :


It sounds to me like they are investigating 2 people.

snipped

Investigators were also still working to pin down the exact movements of Terri Horman on the day her stepson disappeared, as well as on the exact movements of her friend, DeDe Spicer.

Some of the testimony was expected to focus on people who saw and dealt with the women on the day Kyron vanished.

http://www.kgw.com/news/local/Sources-2-friends-gave-Terri-Horman-cell-phones-100052359.html

If I read the statute correctly, the prosecutor brings evidence and witnesses before the grand jury of triable crime(s) he feels were committed.

In a trial, each person answers to charges against them and each is entitled to his own defense (even if using the same attorney as the others) right?

So a grand jury is simply deciding if a triable crime occurred and if the evidence could result in conviction, regardless of how many people may be involved? If that's true, does this mean the prosecutor doesn't need more than one grand jury case to get an indictment for people who may committed a crime related to what he's presenting? IOW, if by presenting this evidence to this one grand jury it's determined Terri killed Kyron, DeDe helped hide his body, Friend X lied to police to cover for her, etc., could this particular grand jury indict each for the part they played, or would he have to convene a separate one for each person involved?

BeanE
08-08-2010, 02:15 PM
Hi AZlawyer :)

If this Grand Jury doesn't return an indictment, will that be announced or publicized? Or will we have to hear it from Unnamed Sources? :)

They return a document or finding, called a presentment? Something like that? If there's no indictment? Would that document state why they didn't indict, e.g., not enough evidence? Would that be released to the public?

TIA!

:blowkiss:

AZlawyer
08-08-2010, 04:03 PM
I am puzzled as to why TH has not been arrested for the MFHP. I'm guessing they don't have any evidence other than the landscaper's testimony and perhaps he/she is not considered a very credible witness.

However, I have a question. If someone gets really ticked at their spouse and you know, says something to the effect of "I wish he/she were dead. I'd give you a million bucks to blow his/her head off". You know that sort of "heated" statement. Would that be considered a MFHP? Even though it may never have been intended as something the person really wanted anyone to do? Or does there have to be more than a conversation involved? Hope I'm making myself clear on this one. Thanks.

If the only evidence on the MFH plot is the landscaper's testimony, IMO TH will not be arrested for that.

Intent is a slippery thing. There's no "bright line" where you cross over from joking to serious intent, but no prosecutor is going to mess with it if there's any real possibility that it was a joke.


I have a question about the manner in which a prosecutor presents his case to a Grand Jury. Lets assume that a prosecutor's case for indicting Jane Doe in based in large part on the testimony of witnesses. Would the key witnesses need to appear in person before the Grand Jury, or could a prosecutor instead tell the Grand Jury that that witnesses A, B, and C are cooperating with LE and the DA and are willing to testify that they saw Jane Doe do X, Y, and Z?

Thank You.

I believe the Oregon procedures allow for the prosecutors to present written affidavits from witnesses in lieu of "live" testimony, but not for the prosecutors to just verbally describe the witnesses' testimony.


This post brought up a question :

If I read the statute correctly, the prosecutor brings evidence and witnesses before the grand jury of triable crime(s) he feels were committed.

In a trial, each person answers to charges against them and each is entitled to his own defense (even if using the same attorney as the others) right?

So a grand jury is simply deciding if a triable crime occurred and if the evidence could result in conviction, regardless of how many people may be involved? If that's true, does this mean the prosecutor doesn't need more than one grand jury case to get an indictment for people who may committed a crime related to what he's presenting? IOW, if by presenting this evidence to this one grand jury it's determined Terri killed Kyron, DeDe helped hide his body, Friend X lied to police to cover for her, etc., could this particular grand jury indict each for the part they played, or would he have to convene a separate one for each person involved?

Yes, the grand jury could indict more than one person.


Hi AZlawyer :)

If this Grand Jury doesn't return an indictment, will that be announced or publicized? Or will we have to hear it from Unnamed Sources? :)

They return a document or finding, called a presentment? Something like that? If there's no indictment? Would that document state why they didn't indict, e.g., not enough evidence? Would that be released to the public?

TIA!

:blowkiss:

I don't think we will see anything at all if there is no indictment.

A presentment is not a non-indictment; it is an indictment made by the grand jury on its own rather than at the prosecutor's request. E.g., if the prosecutor requests an indictment for first-degree murder, the grand jury could say no but offer a presentment for manslaughter.

Calliope
08-09-2010, 08:44 PM
What happens to a case if it's found that someone from within the grand jury proceedings is leaking information to the press (or even to others who then tell the press)? I'm not talking about witnesses called to testify, but the jurors, court reporters, and others present who are sworn to secrecy?

sherbetjello
08-09-2010, 11:43 PM
Could the landscaper that was "solicited" for the murder for hire plot be arrested on this charge and not TH (TM/the step mother)?

I have my thinking cap on, but wanted to bring this forth for a professional.

desquire
08-10-2010, 01:29 PM
Could the landscaper that was "solicited" for the murder for hire plot be arrested on this charge and not TH (TM/the step mother)?

I have my thinking cap on, but wanted to bring this forth for a professional.

Being solicited is not a crime. Since KH was obviously not murdered and we haven't heard of any attempt on his life, the most likely charge against the landscaper would be conspiracy to commit murder. This would require the prosecutor to prove that the landscaper had agreed to participate in or cause the performance of a murder.

Given the news reports, it doesn't sound as if the lanscaper ever agreed to participate. Even if - hypothetically - he had originally agreed, renunciation of the conspiracy (e.g., by reporting it to police) is a complete defence to the charge. So it's highly unlikely that the lanscaper would be the target of the grand jury (if that's what you were thinking).

goatman
08-10-2010, 01:44 PM
If TH is not arrested/charged with the MFH but is charged for Kyron's disappearance, if the DA wanted can they still used the MFH as a pattern?

If TH goes to trial can the DA reference the MFH plot if she isn't arrested/convicted/on trial for it, at any point during a trial over Kyron's disappearance?

If TH is not arrested/charged/convicted with the MFH, and that is what was partly used in the restraining order can she contest the restraining order/make it void/counter claim it because of that?

Thank you for all your help!

desquire
08-10-2010, 01:47 PM
What happens to a case if it's found that someone from within the grand jury proceedings is leaking information to the press (or even to others who then tell the press)? I'm not talking about witnesses called to testify, but the jurors, court reporters, and others present who are sworn to secrecy?

Other than the witness, the only ones present would be the jurors, prosecutor and, possibly, a recorder. If any of those - including a juror - violated the secrecy of the proceedings, they could be charged with contempt and/or an abuse of public office charge (e.g., official misconduct or misuse of confidential information). Jurors are considered public officers.

Calliope
08-10-2010, 01:59 PM
Other than the witness, the only ones present would be the jurors, prosecutor and, possibly, a recorder. If any of those - including a juror - violated the secrecy of the proceedings, they could be charged with contempt and/or an abuse of public office charge (e.g., official misconduct or misuse of confidential information). Jurors are considered public officers.

Yes, thanks. I was wondering if it would mean the DA has to start over with a new grand jury or if it could possibly be basis for an appeal down the road (or even if it could be used in trial somehow)?

desquire
08-10-2010, 04:06 PM
Yes, thanks. I was wondering if it would mean the DA has to start over with a new grand jury or if it could possibly be basis for an appeal down the road (or even if it could be used in trial somehow)?

Oh! Sorry for taking the easy out on that question. You always do your homework thoroughly, so I should have known there was more to it. I think the DA might be able to use such juror misconduct as a reason for getting the court to give him a second bite at the apple with a new grand jury if the "bad" jury returns a no-bill. If the "bad" jury returns an indictment, however, the DA would still be free to prosecute on it. Also the improper disclosure of grand jury testimony would not affect the DA's ability have that witness/testimony admitted at trial. Finally, maybe some of the other lawyers here feel differently, but it's hard for me to picture a realistic scenario under which the improper disclosure of grand jury testimony would form the basis of an appeal of the trial unless it ties with a subsequent error of the trial judge (e.g., the improperly disclosed testimony is so outrageous that it prejudices the local jury pool and the trial judge refuses to take any action to remedy that situation).

desquire
08-10-2010, 04:50 PM
If TH is not arrested/charged with the MFH but is charged for Kyron's disappearance, if the DA wanted can they still used the MFH as a pattern?

If TH goes to trial can the DA reference the MFH plot if she isn't arrested/convicted/on trial for it, at any point during a trial over Kyron's disappearance?

If TH is not arrested/charged/convicted with the MFH, and that is what was partly used in the restraining order can she contest the restraining order/make it void/counter claim it because of that?

Thank you for all your help!
Good questions.
First, evidence of prior bad acts is not admissible if it's merely offered to show that the person is of bad character and has a history of doing bad things. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, an element of the crime, etc. I could see factual scenarios where the MFH plot could be deemed relevant and admissible to prove motive or intent but there are definitely problems with that. First, although, she doersn't have to be arrested/charged/convicted of it, the DA would have to prove that the murder solicitation happened and that TH was culpable - you'd end up with a mini bench trial within a trial. So far it doesn't sound like they have solid evidence on the MFH. Second, this is an area that provides defendants with good ammunition on appeal so, if I were the DA and I had direct evidence that put Kyron's disappearnce at TH's feet, I would avoid the MFH if at all possible.

The RO was based on attempted or threatened bodily harm. The burden of proof necessary to obtain the RO is lower than that required to convict for a crime (preponderance of the evidence vs. beyond a reasonable doubt). So KH can still use the MFH allegation to uphold the RO even if TH is never charged - and even if she were charged and acquitted. TH would have to rebut the substance of the allegations, she couldn't merely say "look, I was never arrested/charged/convicted."

JustToSeeYouSmile
08-10-2010, 06:10 PM
A question about OR law involving obstruction. Any thoughts appreciated!

A hypothetical situation:
If a home/land owner has property that becomes the focus of a criminal investigation (not the owner or residents, but the land itself) and as a result is altered, damaged, rendered temporarily unsuable- that sort of thing... and the reasons for the land becoming the focus of the criminal investigation and therefore its' disturbance are tips received by LE from a person or persons who are later said to be obstructing justice or the course of an investigation by say, leading the investigation in the wrong direction.... and if those tips are given under sworn testimony-
Can the home/land owner then sue this person for damages? Hope that makes sense.
TIA.....

AZlawyer
08-10-2010, 08:57 PM
A question about OR law involving obstruction. Any thoughts appreciated!

A hypothetical situation:
If a home/land owner has property that becomes the focus of a criminal investigation (not the owner or residents, but the land itself) and as a result is altered, damaged, rendered temporarily unsuable- that sort of thing... and the reasons for the land becoming the focus of the criminal investigation and therefore its' disturbance are tips received by LE from a person or persons who are later said to be obstructing justice or the course of an investigation by say, leading the investigation in the wrong direction.... and if those tips are given under sworn testimony-
Can the home/land owner then sue this person for damages? Hope that makes sense.
TIA.....

I'm not familiar with anything specific about Oregon law, but it sounds like a good claim to me!

AZlawyer
08-10-2010, 08:57 PM
Desquire, thank you so much for being here!! This thread is too active for me to keep up sometimes. :)

JustToSeeYouSmile
08-10-2010, 09:00 PM
I'm not familiar with anything specific about Oregon law, but it sounds like a good claim to me!

Thank you, Az!

Calliope
08-10-2010, 09:00 PM
Oh! Sorry for taking the easy out on that question. You always do your homework thoroughly, so I should have known there was more to it. I think the DA might be able to use such juror misconduct as a reason for getting the court to give him a second bite at the apple with a new grand jury if the "bad" jury returns a no-bill. If the "bad" jury returns an indictment, however, the DA would still be free to prosecute on it. Also the improper disclosure of grand jury testimony would not affect the DA's ability have that witness/testimony admitted at trial. Finally, maybe some of the other lawyers here feel differently, but it's hard for me to picture a realistic scenario under which the improper disclosure of grand jury testimony would form the basis of an appeal of the trial unless it ties with a subsequent error of the trial judge (e.g., the improperly disclosed testimony is so outrageous that it prejudices the local jury pool and the trial judge refuses to take any action to remedy that situation).

Oh goodness, no need to be sorry ! I wasn't clear in my post (what?? you're not a mind-reader??? outrageous!!!).

Thanks so much for taking the time to answer :)

palladore
08-11-2010, 12:33 AM
Is there any upside or downside to LE in naming someone a "Person of Interest?"

Is there any liability in treating persons as "Persons of Interest" without naming them as such? (For example, LE distributing a flier with pictures of Terri and DeDe asking if anyone had seen them in the vicinity of Kyron's school on June 4.)

Thanks

eyes4crime
08-11-2010, 01:04 AM
If Kaine and Desiree signed a release of Kyron's medical records for review by LE and/or themselves, could the GJ request the physician/records for review at the hearing? TIA :blowkiss: Thanks so much for your time

Calliope
08-11-2010, 03:19 AM
Now here are some REALLY stupid questions:

Is there anything that compels the DA to use grand jury testimony? Can he pick and choose what he feels best presents his case and ignore testimony that might show favor to the defense? When it comes to trial, is the DA required to give the defense the testimony of people who appeared before the grand jury, even if it hurts the State's case? Discovery? Is that the term? If the defense is entitled to know what evidence the State has against their client, wouldn't grand jury testimony apply? Am I completely off base? If so, I blame My Cousin Vinny :)

And along those lines, what happens if a witness he believes is going to shore up his case ends up telling the grand jury stuff that weakens it? Either by altering or adding to what they told LE OR through additional information revealed when questioned by the jurors?

Is the DA allowed to step in and stop the witness from saying anything else? Toss 'em out on their ear, so to speak?

I guess I'm not really clear on who runs the show. Is it the DA or the grand jury? Why is the sky blue?

desquire
08-11-2010, 10:18 AM
Desquire, thank you so much for being here!! This thread is too active for me to keep up sometimes. :) Happy to contribute. I was feeling a little guilty just lurking while you did all the work.

desquire
08-11-2010, 11:47 AM
Is there any upside or downside to LE in naming someone a "Person of Interest?"

Is there any liability in treating persons as "Persons of Interest" without naming them as such? (For example, LE distributing a flier with pictures of Terri and DeDe asking if anyone had seen them in the vicinity of Kyron's school on June 4.)

Thanks

In the federal system, there specific guidelines and procedural implications involved when designating an individual as the "subject" or "target" of an investigation or grand jury proceeding; I'm not aware that Oregon has anything analogous. Naming someone as a "Person of Interest" has absolutely no legal significance in any system. It's just a phrase used with the press.

The only upside of naming someone a "Person of Interest" would be in furthering PR goals or some investigative strategy to turn up the heat on the individual. The downside would be the real impact it has on the life of the person named. The most famous examples are Richard Jewell and Steven Hatfill, who were named by the FBI as "persons of interest" in the 1996 Olympic Park bombing and the 2002 anthrax mailings, respectively, but never officially made it to the level of subjects or targets. Nevertheless, their reputations and lives were ruined and they ended up getting multi-million dollar settlements from the government. (MOVING INTO EDITORIAL TERRITORY HERE) Thus, the use of the term "person of interest" is controversial and viewed as a weaselish move by LE - if they have a solid reasonable basis to suspect an individual, they should be willing to say that, otherwise they should keep quiet. What LE is doing in this case is even a step further - using KH and DY to point the finger so that LE can plausibly deny ever having defamed TH.

desquire
08-11-2010, 12:08 PM
Now here are some REALLY stupid questions:

Is there anything that compels the DA to use grand jury testimony? Can he pick and choose what he feels best presents his case and ignore testimony that might show favor to the defense? When it comes to trial, is the DA required to give the defense the testimony of people who appeared before the grand jury, even if it hurts the State's case? Discovery? Is that the term? If the defense is entitled to know what evidence the State has against their client, wouldn't grand jury testimony apply? Am I completely off base? If so, I blame My Cousin Vinny :)

And along those lines, what happens if a witness he believes is going to shore up his case ends up telling the grand jury stuff that weakens it? Either by altering or adding to what they told LE OR through additional information revealed when questioned by the jurors?

Is the DA allowed to step in and stop the witness from saying anything else? Toss 'em out on their ear, so to speak?

I guess I'm not really clear on who runs the show. Is it the DA or the grand jury? Why is the sky blue?

In a trial, the DA could use all, some or none of the testimony put before the grand jury. Remember, there is no defence lawyer involved in the grand jury proceeding to object and no judge to rule on admissibility, so all of the testimony put before the grand jury may not even be admissible at trial. Similarly, there is no defense to rebut or impeach the grand jury testimony, so testimony/evidence that worked with a grand jury might be too shakey for the DA to want to use at trial. In a criminal trial, the defence must have advance notice of all evidence that the prosecution intends to admit and the prosecution has an absolute duty to provide the defence with any exculpatory evidence that it is aware of. Now, prosecutors often operate in murky territory between "the concept of due process requires me to disclose any evidence that is favorable to the defense" and "I'm only required to disclose materially favorable evidence when there is a reasonable probability that the not doing so would change the result of the trial."

In a grand jury, the DA definitely runs the show. You've probably heard that the DA exercises so much influence over a grand jury that "they'd indict a ham sandwich if he wanted them to." There's truth to that.

desquire
08-11-2010, 12:22 PM
If Kaine and Desiree signed a release of Kyron's medical records for review by LE and/or themselves, could the GJ request the physician/records for review at the hearing? TIA :blowkiss: Thanks so much for your time

Absolutely. Nothing would prevent the disclosure of medical records pursuant to a subpoena, even without the parents' consent.

Calliope
08-11-2010, 12:24 PM
In a trial, the DA could use all, some or none of the testimony put before the grand jury. Remember, there is no defence lawyer involved in the grand jury proceeding to object and no judge to rule on admissibility, so all of the testimony put before the grand jury may not even be admissible at trial. Similarly, there is no defense to rebut or impeach the grand jury testimony, so testimony/evidence that worked with a grand jury might be too shakey for the DA to want to use at trial. In a criminal trial, the defence must have advance notice of all evidence that the prosecution intends to admit and the prosecution has an absolute duty to provide the defence with any exculpatory evidence that it is aware of. Now, prosecutors often operate in murky territory between "the concept of due process requires me to disclose any evidence that is favorable to the defense" and "I'm only required to disclose materially favorable evidence when there is a reasonable probability that the not doing so would change the result of the trial."

In a grand jury, the DA definitely runs the show. You've probably heard that the DA exercises so much influence over a grand jury that "they'd indict a ham sandwich if he wanted them to." There's truth to that.

Ah, I did not know that! I thought it was just the evidence they planned to use against the defendant that had to be revealed.

Thanks :)

Calliope
08-12-2010, 12:37 PM
If polygraph results are inadmissible in trial, are they allowed to be presented to the grand jury?

I guess I could take it a bit further and ask if any evidence that would not be allowed at trial could still be used to obtain an indictment?

Are there any rules the DA must follow as far as what type of evidence he can present to the grand jury?

AZlawyer
08-12-2010, 01:16 PM
If polygraph results are inadmissible in trial, are they allowed to be presented to the grand jury?

I guess I could take it a bit further and ask if any evidence that would not be allowed at trial could still be used to obtain an indictment?

Are there any rules the DA must follow as far as what type of evidence he can present to the grand jury?

The evidentiary rules are looser at the grand jury stage. A lot of hearsay, for example, might come in. But not polygraphs, IMO, because polygraph results just don't prove much. They might give LE a reason to want to check out a person's story, but of what relevance is it to the grand jury why LE checked out TH's story? The question is what did they find out, not why did they go looking?

cypress
08-12-2010, 01:29 PM
Is it common for a Grand Jury to request evidence? Would they pursue evidence that would offer another explanation for the actions of the person the prosecutor is seeking to indict?

CASH
08-12-2010, 05:30 PM
This is probably a silly question but.....

If by chance TH had Kyron stashed and if she told her attorney about it, is he bound by client confidentiality to keep that a secret?

I know that if TH murdered Kyron and told her attorney that she did it, he could not reveal that. But what about in this case where the body would still be missing? Can a lawyer know where his body is and not reveal it?

SmoothOperator
08-12-2010, 05:37 PM
This is probably a silly question but.....

If by chance TH had Kyron stashed and if she told her attorney about it, is he bound by client confidentiality to keep that a secret?

I know that if TH murdered Kyron and told her attorney that she did it, he could not reveal that. But what about in this case where the body would still be missing? Can a lawyer know where his body is and not reveal it?

HI CASH.

I AM NOT A LAWYER but did ask this exact question of AZLawyer a few days back(as did Ruby Red)

Here is AZ's reply which will also answer your question :)



Originally Posted By AZLawyer
No, the attorney could not reveal his client's confession or information about where the body is, and certainly would not have to withdraw from the representation. The vast majority of criminal defendants are, in fact, guilty, so a criminal defense lawyer who insisted on representing only innocent people would get hungry pretty fast. My understanding is that defense attorneys discourage their clients from telling them such information, however, and focus on ensuring procedual fairness and getting the lowest possible sentence for a client who is obviously guilty.

This is why I could never be a defense attorney. The ethics are too complex for me lol. I prefer to sleep at night.

Hope that helps ;)

AZlawyer
08-13-2010, 10:40 PM
Is it common for a Grand Jury to request evidence? Would they pursue evidence that would offer another explanation for the actions of the person the prosecutor is seeking to indict?

I don't know if it's common or not, but it is permitted. I suppose it would depend on the group personality of the grand jury whether they would actively seek an alternative explanation for the accused's behavior.

Calliope
08-16-2010, 10:17 PM
For desquire, bringing over a post from another thread:


I actually agree with most of what you said. The only thing I would disagree with you on is the issue of motives. I actually give Kaine more credit than you do. I don't think he is slinging the mud to get a better divorce settlement - if he is, it won't work because divorces are pretty much a mathematical exercise these days and courts don't care about the underlying relationship issues or who was the better person. I think he's slinging the mud to pressure her to talk in the Kyron case, which is a good and pure motive in my mind. I also think Terri is more concerned about the effect of the divorce proceeding on her prospects in the criminal case than vice versa. Either way, she is motivated solely by self-interest. So I give Kaine more credit on the motive front.

I do think that, however honorable his motive, Kaine is really abusing the court system by putting nasty allegations about Terri in these filings - even though they are clearly legally irrelevant to the issue addressed - and then releasing the motions to the press at the same time he submits them to the court.

Some questions about your post ....

Could the Court order Kaine not to release these motions to the press? Could the Court reprimand or sanction the attorney for continuing to include irrelevant information in her filings? Do you think it's likely? Do you think Terri's divorce attorney would call them on this and move that the Court address this issue?

craftybatchy
08-17-2010, 12:30 AM
Would it be out of the realm of possibility for LE to misrepresent
the results of TH's polygraph exam to TH ? ie. telling her that the results
indicated deception when in fact they did not. Would this misrepresentation
be considered entrapment ?

desquire
08-17-2010, 10:20 AM
For desquire, bringing over a post from another thread:



Some questions about your post ....

Could the Court order Kaine not to release these motions to the press? Could the Court reprimand or sanction the attorney for continuing to include irrelevant information in her filings? Do you think it's likely? Do you think Terri's divorce attorney would call them on this and move that the Court address this issue?

To clarify, I don't think Kaine or his lawyer are sending copies of their filings to the press when they file them. They really don't need to. The story has been so big and the media so hungry for any solid thing to report, that Kaine and Rackner just know that any lurid tidbit they drop into a filing will become the next day's front page news. They don't need to get their hands dirty diseminating the filings because they are all public records and are publicly available from the courts - for a small fee anyone can access them online as soon as they are scanned into the clerk's system. Do I think someone from Rackner's office could be calling a few media contacts to give them a heads up to be watching for something? Sure. But they don't even need to do that; if they file it, it will be printed.

I think Kaine and Rackner are just taking advantage of a dynamic not of their own making and using these court proceedings for purposes other than the intended use. To me that abuse is irritating and more so because many people who read the papers think that, just because something is stated in a court document, it must be true or at least have some evidence to back it up. That said, I don't think there is anything the judge could or should do to stop it.

jadejazzkayla
08-17-2010, 10:38 AM
I think Kaine and Rackner are just taking advantage of a dynamic not of their own making and using these court proceedings for purposes other than the intended use. To me that abuse is irritating and more so because many people who read the papers think that, just because something is stated in a court document, it must be true or at least have some evidence to back it up. That said, I don't think there is anything the judge could or should do to stop it.

sbm....desquire - sorry if you have already answered this elsewhere. re: the ro,

can you comment on how your statement above would apply to kaines words from the ro - if at all? thank you. jade.

kaine writes:

I believe respondent is involved in the disappearance of my son kyron who has been missing since june 4 2010.

I also recently learned that respondent attempted to hire someone to murder me.

The police have provided me w/ probable cause to beleive the above two
statements to be true.

desquire
08-17-2010, 06:09 PM
sbm....desquire - sorry if you have already answered this elsewhere. re: the ro,

can you comment on how your statement above would apply to kaines words from the ro - if at all? thank you. jade.

kaine writes:

I believe respondent is involved in the disappearance of my son kyron who has been missing since june 4 2010.

I also recently learned that respondent attempted to hire someone to murder me.

The police have provided me w/ probable cause to beleive the above two
statements to be true.

Again, this is all just my opinion about how they are conducting themselves and my opinion is no more informed or valid than yours or anyone else's. My comments do not apply to the restraining order request. I don't think there was anything irrelevant or gratuitously lurid in that filing. Of course, they filed that along with a request that it be sealed. But I think seeing what happened with the info in the RO affidavit once it was made public - how it was quoted and reprinted all over the media and was the source of news buzz for days - that was the model for how they could wage a devastatingly effective two-front war against Terri just by working damaging juicy allegations into their motions, relevant or not. Don't get me wrong, people throw unsupported, irrelevant and nasty allegations into pleadings all the time - the difference is in 99.99% of those cases nobody ever sees the garbage except the judge and her clerk, who know garbage when they see it, just ignore it and get to the relevant substance.

AZlawyer
08-18-2010, 02:40 PM
Would it be out of the realm of possibility for LE to misrepresent
the results of TH's polygraph exam to TH ? ie. telling her that the results
indicated deception when in fact they did not. Would this misrepresentation
be considered entrapment ?

Yes, LE could do this, and it would not be entrapment. Entrapment is when LE tricks you into committing a crime you would not otherwise have committed.

I don't understand why people are so focused on whether or not TH "really" passed or failed the polygraph. What difference does it make? If she failed, does it mean she did something to Kyron? No, it means she was nervous--either because she did something to Kyron or because of any number of other reasons.

BeanE
08-18-2010, 07:58 PM
Would it be typical for a grand jury to stop, the DA goes and tries to collect more witnesses, and then the grand jury reconvenes to hear those witnesses? Not saying that's what happening in this case - I have no idea. But just wondering since the DA, via the presser, is attempting to collect more witnesses, and there was also that request to the school for a list of all employees which *could* be an attempt to find more witnesses.

TIA

:blowkiss:

Calliope
08-18-2010, 08:06 PM
Now here's another stupid question.

Are grand jurors instructed not to investigate or monitor outside of the courtroom a case they're hearing? I know they're not sequestered like a trial jury, right? But are they advised to stay away from news articles, Nancy Grace, websleuths (lol) and other sources that might sway their decision one way or the other?

desquire
08-18-2010, 08:35 PM
Would it be typical for a grand jury to stop, the DA goes and tries to collect more witnesses, and then the grand jury reconvenes to hear those witnesses? Not saying that's what happening in this case - I have no idea. But just wondering since the DA, via the presser, is attempting to collect more witnesses, and there was also that request to the school for a list of all employees which *could* be an attempt to find more witnesses.

TIA

:blowkiss:

Particularly for grand juries that have been impaneled for longer-term service (i.e., a month or more) as I assume this grand jury has been, it's not unusual to have gaps of days or weeks between witnesses or between hearing evidence and deliberating. So, yes, the DA could send the grand jury home for a while as he does more evidence gathering or, more likely, the grand jury will continue working on other cases and come back to this one when there is more evidence to be presented.

desquire
08-18-2010, 09:08 PM
Now here's another stupid question.

Are grand jurors instructed not to investigate or monitor outside of the courtroom a case they're hearing? I know they're not sequestered like a trial jury, right? But are they advised to stay away from news articles, Nancy Grace, websleuths (lol) and other sources that might sway their decision one way or the other?

Actually, not a stupid question at all. Because the purpose of all grand juries is, in a sense, investigative, jurisdictions are all over the place in how they instruct grand jurors on "outside information." For example, the federal grand jury instructions say nothing on the issue. Here in NY, grand jurors are instructed " You must not google or otherwise search for any information about a case, or the law which applies to a case, or the people involved in a case, including the defendant, the witnesses and the lawyers." Other states tell grand jurors that the grand jury functions and operates only as a whole body; no individual or group of grand jurors may make, or attempt to make, any independent investigation whatsoever and, if a grand juror becomes aware of information not presented in court, she must present it to the entire grand jury. I'm not familiar with the Oregon instructions. I'll look into it but maybe AZLawyer or someone else can chime in in the meantime.

Calliope
08-18-2010, 09:29 PM
Actually, not a stupid question at all. Because the purpose of all grand juries is, in a sense, investigative, jurisdictions are all over the place in how they instruct grand jurors on "outside information." For example, the federal grand jury instructions say nothing on the issue. Here in NY, grand jurors are instructed " You must not google or otherwise search for any information about a case, or the law which applies to a case, or the people involved in a case, including the defendant, the witnesses and the lawyers." Other states tell grand jurors that the grand jury functions and operates only as a whole body; no individual or group of grand jurors may make, or attempt to make, any independent investigation whatsoever and, if a grand juror becomes aware of information not presented in court, she must present it to the entire grand jury. I'm not familiar with the Oregon instructions. I'll look into it but maybe AZLawyer or someone else can chime in in the meantime.

Ah thanks.

The bolded part rings a bell... vaguely. I'll have to go back through the statutes and see if I can find it again.

Would required instructions to a grand jury be in the actual statute? Or somewhere else?

http://law.onecle.com/oregon/132-grand-jury-indictments-and-other/index.html

Grand jurors may not be challenged.

http://law.onecle.com/oregon/132-grand-jury-indictments-and-other/132.030.html

( referenced in that statute: http://law.onecle.com/oregon/10-juries/10.050.html )

I take that to mean they're aren't asked if they have any preconceived thoughts on the case. So, if it's similar to what you describe in NY, for example, it's ok for the jurors to have done those things listed prior to their service, just not while serving.

----

(9) The grand jury is not bound to hear evidence for the defendant, but it shall weigh all the evidence submitted to it; and when it believes that other evidence within its reach will explain away the charge, it should order such evidence to be produced, and for that purpose may require the district attorney to issue process for the witnesses.

http://law.onecle.com/oregon/132-grand-jury-indictments-and-other/132.320.html

---

Regarding what I bolded in your post:

(1) If a grand juror knows or has reason to believe that a crime which is triable in the county has been committed, the grand juror shall disclose the same to the fellow jurors, who may thereupon investigate the same.

(2) An indictment or presentment must not be found upon the statement of a grand juror unless the grand juror is sworn and examined as a witness.

(3) A grand juror testifying as provided in subsection (2) of this section shall not vote on the indictment nor be present during deliberations thereon.

http://law.onecle.com/oregon/132-grand-jury-indictments-and-other/132.350.html


Is that what you were talking about?

desquire
08-18-2010, 09:44 PM
Ah thanks.

The bolded part rings a bell... vaguely. I'll have to go back through the statutes and see if I can find it again.

Would required instructions to a grand jury be in the actual statute? Or somewhere else?

http://law.onecle.com/oregon/132-grand-jury-indictments-and-other/index.html

Grand jurors may not be challenged.

http://law.onecle.com/oregon/132-grand-jury-indictments-and-other/132.030.html

( referenced in that statute: http://law.onecle.com/oregon/10-juries/10.050.html )

I take that to mean they're aren't asked if they have any preconceived thoughts on the case. So, if it's similar to what you describe in NY, for example, it's ok for the jurors to have done those things listed prior to their service, just not while serving.

----

(9) The grand jury is not bound to hear evidence for the defendant, but it shall weigh all the evidence submitted to it; and when it believes that other evidence within its reach will explain away the charge, it should order such evidence to be produced, and for that purpose may require the district attorney to issue process for the witnesses.

http://law.onecle.com/oregon/132-grand-jury-indictments-and-other/132.320.html

---

Regarding what I bolded in your post:

(1) If a grand juror knows or has reason to believe that a crime which is triable in the county has been committed, the grand juror shall disclose the same to the fellow jurors, who may thereupon investigate the same.

(2) An indictment or presentment must not be found upon the statement of a grand juror unless the grand juror is sworn and examined as a witness.

(3) A grand juror testifying as provided in subsection (2) of this section shall not vote on the indictment nor be present during deliberations thereon.

http://law.onecle.com/oregon/132-grand-jury-indictments-and-other/132.350.html


Is that what you were talking about?

Call me if you are ever looking for a paralegal job.

Billylee
08-19-2010, 12:02 PM
For desquire, bringing over a post from another thread:



Some questions about your post ....

Could the Court order Kaine not to release these motions to the press? Could the Court reprimand or sanction the attorney for continuing to include irrelevant information in her filings? Do you think it's likely? Do you think Terri's divorce attorney would call them on this and move that the Court address this issue?

I am glad you brought this over, Cal. This is my question about the sexting motion that was included in the documents.

Since the RO was solely predicated on the fact that TH had allegedly planned a MFHP, and she used sexting and as the payment for said plan, then would not the new documents showing the sexting between MC and herself AND the fact that she illegally gave MC access to the RO be relevant also? I mean I'm assuming that KH and his attorney viewed this new episode as the same type of thing she apparently was doing with the MFHP, so wouldn't it be relevant that she was again using this sexting technique to do something she was not supposed to be doing, like giving MC Kaine's new address? Anyway I was wondering if that's why the attorney chose to include those documents? Hope I made sense.

Calliope
08-19-2010, 12:08 PM
Call me if you are ever looking for a paralegal job.

:floorlaugh:

cluciano63
08-20-2010, 11:12 PM
Please pardon me if this has already been asked & answered....

What could have possibly taken place at the GJ re: Dede Spicher that would not involve her being asked any questions, as her lawyer stated? Wouldn't the prosecutor know in advance if she planned to ask for immunity and wouldn't the question "Will you answer questions today?" at least be asked? Is he just playing games with words here? Is there any explanation besides pending immunity? Thank you in advance.

Editorss
08-21-2010, 03:56 PM
If Kyron is not found and LE does not have enough info to charge someone how long will TH be asked to stay in the house with no phone/computer etc? At what point would her atty say "Go on with your life."

AZlawyer
08-21-2010, 08:42 PM
Please pardon me if this has already been asked & answered....

What could have possibly taken place at the GJ re: Dede Spicher that would not involve her being asked any questions, as her lawyer stated? Wouldn't the prosecutor know in advance if she planned to ask for immunity and wouldn't the question "Will you answer questions today?" at least be asked? Is he just playing games with words here? Is there any explanation besides pending immunity? Thank you in advance.

I believe someone mentioned that she got a lawyer only a day or so before the grand jury met, so it's possible that the prosecutor did not know she was going to ask for immunity in advance. I'm sure there are other possible explanations as well. Perhaps the GJ just wanted to review other evidence first--but then you would think she would have been called back the next day or soon after. An immunity request is still the most likely explanation.


If Kyron is not found and LE does not have enough info to charge someone how long will TH be asked to stay in the house with no phone/computer etc? At what point would her atty say "Go on with your life."

I don't think it's really been confirmed that her attorney advised her not to use the phone or computer. But if he did, I would think TH would be the one to eventually say, "You know what? I'm going on with my life now," before her attorney says it. She seems to have been pretty fond of her phone and computer. :)

gitana1
08-21-2010, 08:49 PM
I am glad you brought this over, Cal. This is my question about the sexting motion that was included in the documents.

Since the RO was solely predicated on the fact that TH had allegedly planned a MFHP, and she used sexting and as the payment for said plan, then would not the new documents showing the sexting between MC and herself AND the fact that she illegally gave MC access to the RO be relevant also? I mean I'm assuming that KH and his attorney viewed this new episode as the same type of thing she apparently was doing with the MFHP, so wouldn't it be relevant that she was again using this sexting technique to do something she was not supposed to be doing, like giving MC Kaine's new address? Anyway I was wondering if that's why the attorney chose to include those documents? Hope I made sense.

The RO was not solely predicated on the alleged MFH and my understanding is that there has been nothing released or alleged in the pleadings regarding the sexting as part of the MFH. The RO was predicated on an alleged MFH as well as TH's alleged involvement in Kyron's disappearance.
The sexting was brought up in connection with Kaine's contempt motion and was added backdrop to set up the relationship between TH and the guy she reportedly showed the sealed pleadings to.
I don't think the sexting is relevant to any criminal allegations nor to any domestic violence allegations. The only potential relevance to me of the sexting texts would be to lay a foundation for the contempt - TH showing MC the RO. However, even that is a stretch to me. I would argue against the admissibility of any texts or sexts, if someone was trying to introduce them against my client, that do not directly show my client was in violation of a court order.
I frankly do not think the actual sexts have much of a place in family court at all as evidence except perhaps to argue that TH is behaving erratically, in connection with any custody case.

ETA That when I say behaving erratically, I do not mean that the sexting is such in and of itself. However, it may be argued that it is evidence of erratic behavior if it occurred constantly and soon after the disappearance of the little boy she raised.

PDXMom
08-21-2010, 11:37 PM
How does TH's retainer work with Mr. Houze? Does she retain him for a period of time, or is it a prepayment for future services rendered? Is he likely to be billing her now, even if she paid a retainer at first? If so, for what, do you think? She's been seen arriving at and leaving from his office several times, but she hasn't been charged with anything. Could LE conceivably just string it out until Terri's out of money and then try her? Of course everyone wants a speedy resolution, but if they aren't 100% sure they can get a conviction right now, could they just wait? It seems like her money will dry up eventually - probably sooner than later. Are there some kind of ethics involved with that?

sleuthy sleutherson
08-22-2010, 01:14 AM
sbm....desquire - sorry if you have already answered this elsewhere. re: the ro,

can you comment on how your statement above would apply to kaines words from the ro - if at all? thank you. jade.

kaine writes:

I believe respondent is involved in the disappearance of my son kyron who has been missing since june 4 2010.

I also recently learned that respondent attempted to hire someone to murder me.

The police have provided me w/ probable cause to beleive the above two
statements to be true.

These last 3 sentences make me want to ask the question, as I was informed by a friend that if you make a statement "I believe" or "I feel" and use phrases such as Kaine did to obtain his order, is the judge is more likely to grant your order. Is this typically true?

I found it to be helpful in my current custody case and was not made aware until after the fact that making statements in this context can weigh on how a judge rules. Just curious as Kyron's case was already very public when Kaine filed but I question how the "publicity" of the case against Kaine's statements may have affected the judges decision.

Kimster
08-22-2010, 01:16 AM
If Kyron is not found and LE does not have enough info to charge someone how long will TH be asked to stay in the house with no phone/computer etc? At what point would her atty say "Go on with your life."

http://i78.photobucket.com/albums/j83/Kimba4jc/Websleuths/welcome2-2.png

Calliope
08-22-2010, 09:55 AM
For our attorneys, just a question as to your own 'gut' feelings.

If Terri is eventually charged and it goes to trial, do you feel there'll be a change of venue? (dumb question alert): Does a change of venue have to remain within the same state? (I'm trying to recall if I've ever heard of a trial other than Federal being moved across state lines) Is the prosecution allowed to request this, or is it only for the defense to do? I ask this in case someone other than Terri is charged, because so many have expressed they feel she is guilty regardless of any evidence to the contrary.

Calliope
08-22-2010, 10:55 AM
Again, assuming Terri's AKA is "ham sandwich", if she isn't convicted on state charges (whatever they may be), are there any applicable Federal charges for which she could stand trial?


http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/2mcrm.htm#9-2.031

This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General.

---------

I'm wondering if a Federal prosecution can be based upon the fact that Kyron was taken from a public (and Federally funded) school.

http://www.fbi.gov/hq/cid/civilrights/statutes.htm#section245

Title 18, U.S.C., Section 245

Federally Protected Activities

1) This statute prohibits willful injury, intimidation, or interference, or attempt to do so, by force or threat of force of any person or class of persons because of their activity as:

a) A voter, or person qualifying to vote...;

b) a participant in any benefit, service, privilege, program, facility, or activity provided or administered by the United States;

c) an applicant for federal employment or an employee by the federal government;

d) a juror or prospective juror in federal court; and

e) a participant in any program or activity receiving Federal financial assistance.

OR

If it's found that mail or internet (and possibly telephone?) communication was used to plan, carry out or cover up his kidnapping. I'm half asleep --- interstate commerce, I think is the Federal jurisdiction it falls under; communication systems regulated by the Federal government. As an example, the FBI paid a visit to my stalking ex b/f for subtle threats and harassment me via email. He was informed it's a Federal offense and they warned him to back off.

--------

http://www.law.cornell.edu/uscode/18/875.html

(c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.


(if someone else is involved):

http://www.law.cornell.edu/uscode/18/241.html

§ 241. Conspiracy against rights


If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
-------

I know... I'm reaching here...

AZlawyer
08-22-2010, 09:35 PM
How does TH's retainer work with Mr. Houze? Does she retain him for a period of time, or is it a prepayment for future services rendered? Is he likely to be billing her now, even if she paid a retainer at first? If so, for what, do you think? She's been seen arriving at and leaving from his office several times, but she hasn't been charged with anything. Could LE conceivably just string it out until Terri's out of money and then try her? Of course everyone wants a speedy resolution, but if they aren't 100% sure they can get a conviction right now, could they just wait? It seems like her money will dry up eventually - probably sooner than later. Are there some kind of ethics involved with that?

No clue what their agreement is. If it were me, I would bill for criminal defense work on an up-front, flat-fee basis.

I don't think LE is waiting for her to run out of money. I think they're trying to get an indictment. They don't seem to be stringing anything out at all.

AZlawyer
08-22-2010, 09:38 PM
These last 3 sentences make me want to ask the question, as I was informed by a friend that if you make a statement "I believe" or "I feel" and use phrases such as Kaine did to obtain his order, is the judge is more likely to grant your order. Is this typically true?

I found it to be helpful in my current custody case and was not made aware until after the fact that making statements in this context can weigh on how a judge rules. Just curious as Kyron's case was already very public when Kaine filed but I question how the "publicity" of the case against Kaine's statements may have affected the judges decision.

I think judges are more likely to ignore statements about feelings, particularly if they are based on hearsay ("the police told me").

I don't think any decisions have been made by the divorce judge that are unusual or inexplicable, so there's no need to consider any motive other than "standard operating procedure."

AZlawyer
08-22-2010, 09:41 PM
For our attorneys, just a question as to your own 'gut' feelings.

If Terri is eventually charged and it goes to trial, do you feel there'll be a change of venue? (dumb question alert): Does a change of venue have to remain within the same state? (I'm trying to recall if I've ever heard of a trial other than Federal being moved across state lines) Is the prosecution allowed to request this, or is it only for the defense to do? I ask this in case someone other than Terri is charged, because so many have expressed they feel she is guilty regardless of any evidence to the contrary.

It is really way way way too early to think about a change of venue. We'd have to wait and see how the community reacts to the case (if there ever is a case). If someone besides Terri is charged, chances are that the community's reaction might be different than you expect, especially if there turns out to be lots of evidence against that person.

Change of venue would be within the same state, and I suppose could be requested by a prosecutor.

AZlawyer
08-22-2010, 09:45 PM
Again, assuming Terri's AKA is "ham sandwich", if she isn't convicted on state charges (whatever they may be), are there any applicable Federal charges for which she could stand trial?


http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/2mcrm.htm#9-2.031

This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General.

---------

I'm wondering if a Federal prosecution can be based upon the fact that Kyron was taken from a public (and Federally funded) school.

http://www.fbi.gov/hq/cid/civilrights/statutes.htm#section245

Title 18, U.S.C., Section 245

Federally Protected Activities

1) This statute prohibits willful injury, intimidation, or interference, or attempt to do so, by force or threat of force of any person or class of persons because of their activity as:

a) A voter, or person qualifying to vote...;

b) a participant in any benefit, service, privilege, program, facility, or activity provided or administered by the United States;

c) an applicant for federal employment or an employee by the federal government;

d) a juror or prospective juror in federal court; and

e) a participant in any program or activity receiving Federal financial assistance.

OR

If it's found that mail or internet (and possibly telephone?) communication was used to plan, carry out or cover up his kidnapping. I'm half asleep --- interstate commerce, I think is the Federal jurisdiction it falls under; communication systems regulated by the Federal government. As an example, the FBI paid a visit to my stalking ex b/f for subtle threats and harassment me via email. He was informed it's a Federal offense and they warned him to back off.

--------

http://www.law.cornell.edu/uscode/18/875.html

(c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.


(if someone else is involved):

http://www.law.cornell.edu/uscode/18/241.html

§ 241. Conspiracy against rights


If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
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I know... I'm reaching here...

The state grand jury would not be considering any federal charges. Also, I think we can safely say that, whatever Terri did to Kyron, if anything, she did not do it because of his status as an attendant at a federally-funded school or in order to prevent him from exercising a federal right. Whether she did anything that might fall within one of the "interstate commerce" types of offenses is tough to say at this point, since we don't know if she did anything at all. ;)

eyes4crime
08-27-2010, 01:51 AM
I looked and couldn't find this question - so forgive me if I missed it.

The fifth amendment to the United States Constitution, and all state constitutions, provide that no person can be compelled to give evidence against himself.

Does this Constitutional right extend to Civil court? What about cases in Civil Court where evidence presented could/would be used in criminal court? TIA :blowkiss:

AZlawyer
08-27-2010, 02:07 AM
I looked and couldn't find this question - so forgive me if I missed it.

The fifth amendment to the United States Constitution, and all state constitutions, provide that no person can be compelled to give evidence against himself.

Does this Constitutional right extend to Civil court? What about cases in Civil Court where evidence presented could/would be used in criminal court? TIA :blowkiss:

Yes, you still have a right not to incriminate yourself in a civil case. But if you choose to exercise that right, you'll probably lose. ;)

I did a civil case once representing an employer whose 3 accounting employees embezzled $1.4 million. They refused to answer any questions at their depositions, and we won summary judgment for that reason.

cypress
08-27-2010, 02:54 PM
This is more of an opinion question. Do you think it's possible that Terri's widely noted and unnecessary court appearance this week could be prep for a hearing lawyers anticipated, meaning, they knew the judge would rule in favor of Kaine this week?

Also, do you think they may be prepping her to testify at the future hearing? I've been wondering how long Terri's lawyers will allow her to be in limbo, specifically with regard to her daughter. Until Kyron is found, IMHO, LE has the evidence they have against her. The Grand Jury hasn't rushed to indict. From a legal and psychological standpoint, would it be beneficial for Houze and Bunch to allow Terri to testify at the September hearing?

Sorry, I have so many questions, and I'm struggling to articulate them in a meaningful way. Tired, I am.

Thanks!

AZlawyer
08-27-2010, 03:58 PM
This is more of an opinion question. Do you think it's possible that Terri's widely noted and unnecessary court appearance this week could be prep for a hearing lawyers anticipated, meaning, they knew the judge would rule in favor of Kaine this week?

Also, do you think they may be prepping her to testify at the future hearing? I've been wondering how long Terri's lawyers will allow her to be in limbo, specifically with regard to her daughter. Until Kyron is found, IMHO, LE has the evidence they have against her. The Grand Jury hasn't rushed to indict. From a legal and psychological standpoint, would it be beneficial for Houze and Bunch to allow Terri to testify at the September hearing?

Sorry, I have so many questions, and I'm struggling to articulate them in a meaningful way. Tired, I am.

Thanks!

I'm not sure I understand the first question re: "prep for a hearing lawyers anticipated." I do think no one was surprised by the judge's rulings.

If there is an upcoming hearing, of course they will prep her to testify, except to the extent that answering the questions might cause her to incriminate herself, in which case she will take the 5th on those questions.

cluciano63
08-27-2010, 04:07 PM
I'm wondering about Kaine having added to his RO/divorce action the part about Terri being looked at with regards to Kyron's disappearance. Could this have been a legal move, so that they could ask her about it in a divorce trial? And force her to take the
5th on a Kyron-related question? Becuase if she takes the 5th on a Kyron-question, there goes my fence...:(
I'm thinking she won't be doing any testifying, if her lawyers think she knows anything at all.

cluciano63
08-27-2010, 04:17 PM
One more question...

Since the grand jury seems to be on-going...does this mean they have not yet seen enough to indict, or do they not take a vote until all parties have testified? I think a lot of people are assuming they have not seen enough to indict, but I am thinking they have not yet voted. Thanks.

desquire
08-27-2010, 07:30 PM
I'm wondering about Kaine having added to his RO/divorce action the part about Terri being looked at with regards to Kyron's disappearance. Could this have been a legal move, so that they could ask her about it in a divorce trial? And force her to take the
5th on a Kyron-related question? Becuase if she takes the 5th on a Kyron-question, there goes my fence...:(
I'm thinking she won't be doing any testifying, if her lawyers think she knows anything at all.

I doubt it was that calculated. He needed to show actual or threatened harm to a family member and the MFH and Kyron were the two biggies. If they had been thinking about manuevering her onto making a statement on the record, they would have been hoping she contesteed the RO. It isn't necessary that he mentioned Kyron in the RO request to bring it up in the divorce proceeding. When they get around to arguing custody, I'm sure Terri's alleged involvement in Kyron's disappearance will be argument #1 for Kaine. I seriously doubt that was the purpose for filing for divorce but, if the judge doesn't abate, the result will be just what you describe. They will force Terri to testify, they will ask her every conceivable question about Kyron's disappearance and the role she may have played in it. She will either need to deny any involvement on the record or take the 5th.

Billylee
08-27-2010, 08:37 PM
In KH's divorce documents it reads "the police have provided me with probable cause to believe the above two statements to be true". He is referring to his wife's involvement in the disappearance of his son and that she hired someone to murder him.

This was published in today's press: In late June, Kaine filed for divorce, citing among other things an alleged plot to kill him that investigators said was discussed by Terri Horman and a landscaper. The plot never went beyond talk, investigators said.

Two questions if they had probable cause back in June when these documents were filed, why do you think TH has not been arrested?

If they did not actually have probable cause to arrest TH back then, but lead KH to believe they did and that was/is the basis of his divorce proceedings, then is there some sort of legal exposure that LE has set itself up for from TH's side of the courtroom? Some sort of lawsuit for pain and suffering caused by LE to TH? I hope I'm making sense, because if there is, I could see more reason that LE would be pressing to pin this on TH, so I hope the answer is no.

AZlawyer
08-27-2010, 10:49 PM
One more question...

Since the grand jury seems to be on-going...does this mean they have not yet seen enough to indict, or do they not take a vote until all parties have testified? I think a lot of people are assuming they have not seen enough to indict, but I am thinking they have not yet voted. Thanks.

The GJ is not likely to cut off the prosecutors in the middle of their presentation, even if they think they have seen enough evidence to indict.


In KH's divorce documents it reads "the police have provided me with probable cause to believe the above two statements to be true". He is referring to his wife's involvement in the disappearance of his son and that she hired someone to murder him.

This was published in today's press: In late June, Kaine filed for divorce, citing among other things an alleged plot to kill him that investigators said was discussed by Terri Horman and a landscaper. The plot never went beyond talk, investigators said.

Two questions if they had probable cause back in June when these documents were filed, why do you think TH has not been arrested?

If they did not actually have probable cause to arrest TH back then, but lead KH to believe they did and that was/is the basis of his divorce proceedings, then is there some sort of legal exposure that LE has set itself up for from TH's side of the courtroom? Some sort of lawsuit for pain and suffering caused by LE to TH? I hope I'm making sense, because if there is, I could see more reason that LE would be pressing to pin this on TH, so I hope the answer is no.

I think Kaine was using the term "probable cause" in a layperson's sense, not in a LE sense. He meant, "I have reason to believe that Terri did this, based on what the police told me." I'm sure that was true.

I don't think the police have enough evidence to arrest her on the MFH, or they would not have attempted the "sting" operation. But that doesn't mean they didn't have enough to think she did it, and to warn Kaine to get the heck out of the house.

SacreBleu
08-28-2010, 01:18 AM
A question, and please forgive if this has already been addressed - I confess that I have not read the entire thread:

Suppose that Terri has confessed to Houze that she bears or shares responsibility (either rationally or irrationally) for Kyron's going missing: would the typical A+ rated defense attorney proceed in the manner in which Mr. Houze has?

ETA: Or, is this just SOP for any client? By that I mean - attending a divorce hearing, presumably restricting the client from cell phone, internet, etc.

AZlawyer
08-28-2010, 11:37 PM
A question, and please forgive if this has already been addressed - I confess that I have not read the entire thread:

Suppose that Terri has confessed to Houze that she bears or shares responsibility (either rationally or irrationally) for Kyron's going missing: would the typical A+ rated defense attorney proceed in the manner in which Mr. Houze has?

ETA: Or, is this just SOP for any client? By that I mean - attending a divorce hearing, presumably restricting the client from cell phone, internet, etc.

Houze hasn't really done anything that would tell us one way or another what story Terri has given him.

Attending a divorce hearing would be SOP for a defense attorney who is trying to get the divorce case delayed pending the resolution of the criminal case (if and when there is one). Actually, is the same attorney representing her for the divorce also? I can't remember.

I don't think we know for sure that Houze asked her not to use the cell phone or internet, but given her chattiness I would think any defense attorney would give her that advice.

debs
08-28-2010, 11:40 PM
Houze hasn't really done anything that would tell us one way or another what story Terri has given him.

Attending a divorce hearing would be SOP for a defense attorney who is trying to get the divorce case delayed pending the resolution of the criminal case (if and when there is one). Actually, is the same attorney representing her for the divorce also? I can't remember.

I don't think we know for sure that Houze asked her not to use the cell phone or internet, but given her chattiness I would think any defense attorney would give her that advice.

Terri has two attorneys: Houze for criminal defense and Bunch for civil domestic representation.

BlOnDe_GuRrL
08-29-2010, 02:36 AM
how is it that desiree and kaine are allowed to go on tv... pointing fingers at terri and telling everyone that they believe she took kyron.. and other things.. without having proof?
i understand freedom of speech.. but what about presumption of innocence?
are people allowed to just go around and blame people (on tv) for things that they can not prove?

TGIRecovered
08-29-2010, 10:38 AM
If a client tells a their defense attorney that they did commit a crime, is that attorney under any obligation to advise their client to tell the cops the truth?

If the client refuses to confess but the attorney knows they are guilty, can that attorney still represent the client as long as he does not lie? Example; attorney says " there is no proof, evidence illegally obtained etc", but doesen't ever say "client was not there, didn't do it etc."

Does a good defense lawyer ever advise the client NOT to tell him/her certain things, so that the attorney can legitimately say that they believe their client to be innocent?

If client says " I know Kyron is safe (or deceased), I have knowledge of the crime but did not take him myself, don't know his exact location", what is attorney legally required to do?

In your professional experience, do most guilty people tell their attorney the truth, partial truth, total lies, or say they don't remember? Do defence attorneys usually know if their client is guilty or not, even if the client never admits the truth?

JBean
08-29-2010, 10:45 AM
If a client tells a their defense attorney that they did commit a crime, is that attorney under any obligation to advise their client to tell the cops the truth?

If the client refuses to confess but the attorney knows they are guilty, can that attorney still represent the client as long as he does not lie? Example; attorney says " there is no proof, evidence illegally obtained etc", but doesen't ever say "client was not there, didn't do it etc."

Does a good defense lawyer ever advise the client NOT to tell him/her certain things, so that the attorney can legitimately say that they believe their client to be innocent?

If client says " I know Kyron is safe (or deceased), I have knowledge of the crime but did not take him myself, don't know his exact location", what is attorney legally required to do?

In your professional experience, do most guilty people tell their attorney the truth, partial truth, total lies, or say they don't remember? Do defence attorneys usually know if their client is guilty or not, even if the client never admits the truth?
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AZlawyer
08-30-2010, 12:23 AM
how is it that desiree and kaine are allowed to go on tv... pointing fingers at terri and telling everyone that they believe she took kyron.. and other things.. without having proof?
i understand freedom of speech.. but what about presumption of innocence?
are people allowed to just go around and blame people (on tv) for things that they can not prove?

No one is obligated to presume someone's innocence unless they are on the jury.

The risk in accusing someone of a crime in public is that you will be sued for defamation. But as long as you don't say anything that you know or ought to know is false, it's OK if you don't have "proof" that it's true.

rnmif
08-30-2010, 03:46 AM
I'm not sure if anyone here might have experience with this, but how does DA... jurisdiction(?) work? Is it common to have the DA from a neighboring county help in a case such as this?

desquire
08-30-2010, 09:37 AM
I'm not sure if anyone here might have experience with this, but how does DA... jurisdiction(?) work? Is it common to have the DA from a neighboring county help in a case such as this?

In Oregon, a DA's jurisdiction covers the county in which she was elected and any state crimes committed in that county or any civil cases involving the county government. You would expect to see cooperation from a neighboring county's DA if elements of a crime took place in that neighboring county or if witnesses or evidence lie within that other county. Otherwise, as elected officials, DAs are political animals and are typically loathe to share credit with or be seen as needing help from another county's DA, particularly in high profile cases.

BeanE
08-30-2010, 09:51 AM
No one is obligated to presume someone's innocence unless they are on the jury.

The risk in accusing someone of a crime in public is that you will be sued for defamation. But as long as you don't say anything that you know or ought to know is false, it's OK if you don't have "proof" that it's true.

So, so long as I don't know for sure that it's false, I can post any vile thing I want, about anyone, from one end of the internet to the other, and there's nothing the person can do about it?

Am I understanding that correctly?

desquire
08-30-2010, 12:43 PM
So, so long as I don't know for sure that it's false, I can post any vile thing I want, about anyone, from one end of the internet to the other, and there's nothing the person can do about it?

Am I understanding that correctly?

I wouldn't put it quite that way. If your vile postings are true or if you reasonably believe them to be true, you would have a good defense against a libel/defamation claim. If, however, you know that your vile posting is false or through a reasonable exercise of diligence you could have learned that your nasty statement is false, you could be found guilty of libel.

Depending on where the person you are posting about is located or where her reputation is damaged, or where the website is located, the laws may be tougher. In England, for example, the defendant has the burden of proof in a defamation suit.

Billylee
08-30-2010, 01:06 PM
I asked this earlier here and didn't really get an answer.

KH's divorce proceedings are based on what LE caused him to believe. If the information that LE gave KH turns out to be misleading, then is there some sort of legal exposure that LE has set itself up for from TH's side of the courtroom? Some sort of lawsuit for pain and suffering caused by LE to TH for providing KH inaccurate or misleading information?

IMO, this could be one reason she's still wearing her wedding ring.

Thanks.

AZlawyer
08-30-2010, 01:39 PM
I asked this earlier here and didn't really get an answer.

KH's divorce proceedings are based on what LE caused him to believe. If the information that LE gave KH turns out to be misleading, then is there some sort of legal exposure that LE has set itself up for from TH's side of the courtroom? Some sort of lawsuit for pain and suffering caused by LE to TH for providing KH inaccurate or misleading information?

IMO, this could be one reason she's still wearing her wedding ring.

Thanks.

Unless LE purposely and maliciously made up lies about Terri to tell Kaine, I doubt they have any legal exposure. LE has a high level of immunity for law enforcement-related activities.

gardeness
08-30-2010, 02:34 PM
Unless LE purposely and maliciously made up lies about Terri to tell Kaine, I doubt they have any legal exposure. LE has a high level of immunity for law enforcement-related activities.

Would it have to be purposely and maliciously? Could it just be purposely? TIA!