Questions for our VERIFIED LAWYERS*~*~*NO DISCUSSIONS*~*~*

[ami]

What I don't understand re: RO and visitation is this: Why even have an RO whose point is to keep an abusive parent away from a vulnerable child, if it can simply be "modified" at the judge's discretion at any time?

If I were married to an abusive man and feared for my life and my child's life and safety - I would file a RO, and if/when it was granted, I would feel secure that it meant what it said: no contact between abuser and me/baby for 1 year (or whatever the time limit). Why even have that legal piece of paper that says NO CONTACT and is stamped and sealed and officiated, if a few months later a judge can negate it and mandate visitation between the abuser and the vulnerable child?

Am I making sense? It makes an RO seem very flimsy and unsafe if it's not upheld.

 

[loves2bmom]

In KH's latest affidavit, he stated that LE has told him that more than one circuit court judge has determined there is probable cause to implicate TH in both Ky's disappearance and in the MFH plot (lines 22-24 of the affidavit).

http://www.kptv.com/download/2010/1026/25509272.pdf

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Which judges could he be referring to? I've read nothing about that.

pinktoes, good question. I'd like to add:
Is it possible this could mean a sealed indictment is out there somewhere?

 

[desquire]

In KH's latest affidavit, he stated that LE has told him that more than one circuit court judge has determined there is probable cause to implicate TH in both Ky's disappearance and in the MFH plot (lines 22-24 of the affidavit).

http://www.kptv.com/download/2010/1026/25509272.pdf

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Which judges could he be referring to? I've read nothing about that.

Given that there has been no indictment, the only involvement of a judge at this point would be in the issuing of search warrants. Based on the fact that he refers to multiple judges, I'm pretty confident he is talking about the judges who issued the search warrants.

It's a little suprising that they included this because it actually weakens Kaine's position. Previously he stated that "[t]he police have provided me with probable cause to believe that (TH was involved in Kyron's disappearance and attempted the MFH)." That statement allows the judge to infer that LE has a substantial amount of evidence supporting Terri's guilt. By saying "more than one circuit court judge has determined probable cause exists to implicate" Terri, Kaine calls all of that into question.

The issue is that, when approving a search warrant, the judge is only determining whether LE has shown probable cause to believe that specific evidence, contraband or fruits of a crime may be found at a particular location, not whether probable cause exists to believe that a particular individual committed a crime. Two totally different things. Judge Meisenheimer now has to be scratching his head and wondering if Kaine and his lawyer understand what they are being told by LE.

 

[pinktoes]

Given that there has been no indictment, the only involvement of a judge at this point would be in the issuing of search warrants. Based on the fact that he refers to multiple judges, I'm pretty confident he is talking about the judges who issued the search warrants.

It's a little suprising that they included this because it actually weakens Kaine's position. Previously he stated that "[t]he police have provided me with probable cause to believe that (TH was involved in Kyron's disappearance and attempted the MFH)." That statement allows the judge to infer that LE has a substantial amount of evidence supporting Terri's guilt. By saying "more than one circuit court judge has determined probable cause exists to implicate" Terri, Kaine calls all of that into question.

The issue is that, when approving a search warrant, the judge is only determining whether LE has shown probable cause to believe that specific evidence, contraband or fruits of a crime may be found at a particular location, not whether probable cause exists to believe that a particular individual committed a crime. Two totally different things. Judge Meisenheimer now has to be scratching his head and wondering if Kaine and his lawyer understand what they are being told by LE.

Gotcha! Very good. Is it possible that there are indictments--sealed ones--already issued? LE doesn't want to act on them for some reason, maybe waiting to arrest more than one party and all at one time?? If there are sealed indictments, would they have been issued by a Circuit Court Judge (words KH used)?

 

[desquire]

pinktoes, good question. I'd like to add:
Is it possible this could mean a sealed indictment is out there somewhere?

It's a possibility, but I don't really see this as a case where a sealed indictment would be necessary (Terri pretty much knows there is an investigation and she is a prime suspect, she wouldn't be difficult to arrest, there aren't any statute of limitations issues, , etc.). Plus, there wouldn't be "more than one circuit court judge" involved. Not to mention, the prosecutors would be mightly upset with Kaine right now.

 

[desquire]

What I don't understand re: RO and visitation is this: Why even have an RO whose point is to keep an abusive parent away from a vulnerable child, if it can simply be "modified" at the judge's discretion at any time?

If I were married to an abusive man and feared for my life and my child's life and safety - I would file a RO, and if/when it was granted, I would feel secure that it meant what it said: no contact between abuser and me/baby for 1 year (or whatever the time limit). Why even have that legal piece of paper that says NO CONTACT and is stamped and sealed and officiated, if a few months later a judge can negate it and mandate visitation between the abuser and the vulnerable child?

Am I making sense? It makes an RO seem very flimsy and unsafe if it's not upheld.

There are many very good reasons for allowing judges to modify, lift or extend restraining orders and. although people can come forward with horror stories about bad judges, I don't know of any state where such a thing can occur without the protected person having an opportunity to object and make their case for preserving the restraining order as is.

To me the real weakness of restraining orders is that they are only effective against a law abiding person. If you've got an abusive spouse/boyfriend who is intent of causing you harm or kidnapping your child, the last thing he is going to be thinking about is that he's also violating a restraining order while he commits his crime.

 

[pinktoes]

It's a possibility, but I don't really see this as a case where a sealed indictment would be necessary (Terri pretty much knows there is an investigation and she is a prime suspect, she wouldn't be difficult to arrest, there aren't any statute of limitations issues, , etc.). Plus, there wouldn't be "more than one circuit court judge" involved. Not to mention, the prosecutors would be mightly upset with Kaine right now.

Maybe the "more than one" was petitioner's attempt to amp up his claim.

But, why would the prosecutors be mighty/mightily upset with Kaine right now?

Oh, and why would LE have actually given Kaine the Cook texting records? Is that kosher to share with family during an investigation?

TIA, mucho.

 

[ami]

There are many very good reasons for allowing judges to modify, lift or extend restraining orders and. although people can come forward with horror stories about bad judges, I don't know of any state where such a thing can occur without the protected person having an opportunity to object and make their case for preserving the restraining order as is.

To me the real weakness of restraining orders is that they are only effective against a law abiding person. If you've got an abusive spouse/boyfriend who is intent of causing you harm or kidnapping your child, the last thing he is going to be thinking about is that he's also violating a restraining order while he commits his crime.

Thanks! I think my real issue is with other statements that there would be no psych evaluation or court investigation before potentially giving Terri supervised visitation. If the RO was granted, shouldn't it be given weight? Enough weight so that if a modification were considered, there should be evidence for/against from each side?

 

[desquire]

Maybe the "more than one" was petitioner's attempt to amp up his claim.

Possible but it's not smart to do that in a sworn affidavit; judges have well-developed BS detectors and this was pretty obviously false. It's the lawyer's job to edit such stuff out to keep the client from shooting themself in the foot.

But, why would the prosecutors be mighty/mightily upset with Kaine right now?

Sealed indictments are relativekly rare and would only be used if the secrecy is imperative the case. If the DA has such a situation and then someone goes and leaks it just to unnecessarily beef up a family court filing, that DA would be pretty upset.

Oh, and why would LE have actually given Kaine the Cook texting records? Is that kosher to share with family during an investigation?

Heads should have rolled over that one.

 

[gliving]

Is there any significance that Rackner's partner Brett Engel signed yesterday's filings? Just wondering why Rackner chose not to. Perhaps she is out of town. TIA

 

[sherbetjello]

Coming over here now, sorry if this has been discussed previously (I try to limit my time/days here now due to frustration and sadness.)

My question is, if these texts were gathered without a warrant to be shown/proved in court, is there a way for KH to show these to a Judge and say "Look, she is out of character here..." and the Judge allow them into court? (I obviously do not know legal jargon/stuff, and I apologize.)

I know that public opinion weights heavy, but if these texts were obtained without the proper diligence, I am more worried that TH will somehow use this to her advantage - does she have one in the case the texts were not obtained legally?

 

[AZlawyer]

Is there any significance that Rackner's partner Brett Engel signed yesterday's filings? Just wondering why Rackner chose not to. Perhaps she is out of town. TIA

No significance. My partners and I sign each other's pleadings all the time. E.g., my paralegal calls while I am out of the office and says, "That motion is ready to go," and I say, "OK, thanks, just have ___ sign it and send it out."

Coming over here now, sorry if this has been discussed previously (I try to limit my time/days here now due to frustration and sadness.)

My question is, if these texts were gathered without a warrant to be shown/proved in court, is there a way for KH to show these to a Judge and say "Look, she is out of character here..." and the Judge allow them into court? (I obviously do not know legal jargon/stuff, and I apologize.)

I know that public opinion weights heavy, but if these texts were obtained without the proper diligence, I am more worried that TH will somehow use this to her advantage - does she have one in the case the texts were not obtained legally?

Why would we assume the texts were obtained illegally?? I believe MC said at some point that he had cooperated with LE and turned over his cell phone. If so, the texts were obtained with consent and therefore legally.

Now, technically he should have shown "foundation" for the texts, which in this case would mean an affidavit from Terri (ha), MC, or LE attesting that the printout was an accurate reflection of texts actually sent and received between those 2 phones, and who the phones belonged to. But unless Terri denies that the printout is accurate, the judge probably won't worry about it.

 

[pinktoes]

AZLawyer: You said that "I believe MC said at some point that he had cooperated with LE and turned over his cell phone. If so, the texts were obtained with consent and therefore legally."

So, since in KH's latest Affidavit he says that LE gave him this info, does that mean that those LEOs who gave him the info. he references can be subpoenaed to testify in this divorce matter in civil court? And would they? Seems they'd want to withhold all the things Kaine says they've told him (ditto the texts) due to the ongoing criminal investigation. I'm confused

 

[AZlawyer]

AZLawyer: You said that "I believe MC said at some point that he had cooperated with LE and turned over his cell phone. If so, the texts were obtained with consent and therefore legally."

So, since in KH's latest Affidavit he says that LE gave him this info, does that mean that those LEOs who gave him the info. he references can be subpoenaed to testify in this divorce matter in civil court? And would they? Seems they'd want to withhold all the things Kaine says they've told him (ditto the texts) due to the ongoing criminal investigation. I'm confused

As far as the texts go, Kaine doesn't need LE testimony to get them into evidence. He can call MC to testify that they are an accurate transcript of MC's text conversation with Terri.

But if LEOs have admissible evidence to provide, they can certainly be subpoenaed to testify in a civil case, and, if subpoenaed, they must appear.

Whether or not LE should have released information to Kaine is a separate question. IMO they are trying to release to him only the things that will not compromise the investigation and/or that he needs to know for his own protection--i.e., "your wife apparently tried to hire this landscaper to kill you--we don't know if she hired anyone else for this purpose, so you might want to get the heck out of your house," or "here are some texts that we really can't do much with, but you might want them for your divorce case." IMO there is room for disagreement whether they should have given him the texts.

 

[SurfieTX]

Would you agree that Kaine has seen the alleged texts between the landscaper and Terri? I wonder if he and Rackner have those as well...for bomb number two...

 

[pinktoes]

As far as the texts go, Kaine doesn't need LE testimony to get them into evidence. He can call MC to testify that they are an accurate transcript of MC's text conversation with Terri.

But if LEOs have admissible evidence to provide, they can certainly be subpoenaed to testify in a civil case, and, if subpoenaed, they must appear.

Whether or not LE should have released information to Kaine is a separate question. IMO they are trying to release to him only the things that will not compromise the investigation and/or that he needs to know for his own protection--i.e., "your wife apparently tried to hire this landscaper to kill you--we don't know if she hired anyone else for this purpose, so you might want to get the heck out of your house," or "here are some texts that we really can't do much with, but you might want them for your divorce case." IMO there is room for disagreement whether they should have given him the texts.

Ah so. Thank you. And so Kaine can just submit the texts from the purported MFH plot/landscaper into evidence in civil court. And no one from LE would have to be subpoenaed to testify about those either?

 

[AZlawyer]

Would you agree that Kaine has seen the alleged texts between the landscaper and Terri? I wonder if he and Rackner have those as well...for bomb number two...

I have no idea whether LE would have given those texts to Kaine. If Kaine had them, and if they referenced the MFH plot at all, I think they would have been attached to the latest filing. However, if they were just sexts, I'm not sure what relevance they would have had. (The sexts with MC are at least arguably relevant as they show Terri's state of mind upon finding herself free of all 3 of her children for the first time in quite a while--i.e., happy and horny.)

Ah so. Thank you. And so Kaine can just submit the texts from the purported MFH plot/landscaper into evidence in civil court. And no one from LE would have to be subpoenaed to testify about those either?

No one from LE would have to provide foundation, as long as (1) the landscaper could be found and subpoenaed and would admit to the texts, or (2) Terri would admit to the texts. If the cell phone company kept records of the texts, then there would be an option 3: submit a subpoena to the cell phone company to get another copy of the same records, and have the cell phone company people swear to the authenticity of their records.

 

[SurfieTX]

I have no idea whether LE would have given those texts to Kaine. If Kaine had them, and if they referenced the MFH plot at all, I think they would have been attached to the latest filing. However, if they were just sexts, I'm not sure what relevance they would have had. (The sexts with MC are at least arguably relevant as they show Terri's state of mind upon finding herself free of all 3 of her children for the first time in quite a while--i.e., happy and horny.)



No one from LE would have to provide foundation, as long as (1) the landscaper could be found and subpoenaed and would admit to the texts, or (2) Terri would admit to the texts. If the cell phone company kept records of the texts, then there would be an option 3: submit a subpoena to the cell phone company to get another copy of the same records, and have the cell phone company people swear to the authenticity of their records.

I'm so sorry, but HAHAHA! I think that sums it up.

 

[desquire]

Whether or not LE should have released information to Kaine is a separate question. IMO they are trying to release to him only the things that will not compromise the investigation and/or that he needs to know for his own protection--i.e., "your wife apparently tried to hire this landscaper to kill you--we don't know if she hired anyone else for this purpose, so you might want to get the heck out of your house," or "here are some texts that we really can't do much with, but you might want them for your divorce case." IMO there is room for disagreement whether they should have given him the texts.

AZ, Thanks for junmping in here and I'm going to take the opportunity to jump out for a while.
I should have caveated my personal opinion on the release of the sexts to Kaine: it's just my opinion and it's not based on anything other than my personal beliefs. I think the release bothers me because I think it's both unfair and it's bad public policy. I'm sure in the course of most investigations, police will learn of private actions and statements of people that could be damaging to the person's reputation and relations but that are not illegal or really relevant to their criminal investigation. I think the police have a duty to maintain the confidentiality of such information (particularly when they come to light as a result of a search warrant). To do otherwise strikes me as an abuse of their authority and the public trust. It discourages people from voluntarily cooperating and I think it undermines the public perception of police as fair and impartial agents of the law.

 

[AZlawyer]

AZ, Thanks for junmping in here and I'm going to take the opportunity to jump out for a while.
I should have caveated my personal opinion on the release of the sexts to Kaine: it's just my opinion and it's not based on anything other than my personal beliefs. I think the release bothers me because I think it's both unfair and it's bad public policy. I'm sure in the course of most investigations, police will learn of private actions and statements of people that could be damaging to the person's reputation and relations but that are not illegal or really relevant to their criminal investigation. I think the police have a duty to maintain the confidentiality of such information (particularly when they come to light as a result of a search warrant). To do otherwise strikes me as an abuse of their authority and the public trust. It discourages people from voluntarily cooperating and I think it undermines the public perception of police as fair and impartial agents of the law.

Oh, I understood it was just your opinion, and I agree that there is a level of discretion that citizens expect from LE. My speculation is that the officers in this case just feel so terrible for Kaine that they are giving him anything they can.