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

Discussion in 'Kyron Horman' started by Kimster, Jul 8, 2010.

  1. Kimster

    Kimster Former Member

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    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.
     
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  3. BeanE

    BeanE Inactive

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    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
     
  4. BeanE

    BeanE Inactive

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    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...778e8438f5/Petition_for_Expedited_Hearing.pdf
     
  5. AnaTeresa

    AnaTeresa New Member

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    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?
     
  6. AZlawyer

    AZlawyer Verified Attorney

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    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."
     
  7. AZlawyer

    AZlawyer Verified Attorney

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    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.
     
  8. AZlawyer

    AZlawyer Verified Attorney

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    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.
     
  9. gibby207

    gibby207 Pooh just is.

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    Thanks for coming over here too AZ!! :D
     
  10. BeanE

    BeanE Inactive

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    Thank you so much, AZ! Great to see you here. :)
     
  11. eyes4crime

    eyes4crime Go Chicago Bears!

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    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:
     
  12. AZlawyer

    AZlawyer Verified Attorney

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    Yes, and I believe he already did that.
     
  13. BeanE

    BeanE Inactive

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    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
     
  14. AZlawyer

    AZlawyer Verified Attorney

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    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.
     
  15. SacreBleu

    SacreBleu New Member

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    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?
     
  16. TGIRecovered

    TGIRecovered Well-Known Member

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    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!
     
  17. AnaTeresa

    AnaTeresa New Member

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    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?
     
  18. Calliope

    Calliope Former Member

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    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
     
  19. Katprint

    Katprint Verified Expert

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    No.
    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.
    Yes.

    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
     
  20. AZlawyer

    AZlawyer Verified Attorney

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    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.

    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.

    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.
     
  21. butwhatif?

    butwhatif? New Member

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    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
     

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