2010.06.28 - Kyron's Dad files for divorce and restraining order

[Donjeta]

bbm

Sorry I wasn't clearer. I meant that in general LE/the state needs to prove her guilt.

Here's the tricky part, IMHO: in this country you have the right to confront your accuser and their statements. TH had her daughter taken from her, and lost her home--along with all the other losses--based on an allegation from an unknown (to us) person (whose true name may or may not be known to her attorney, see Bunch's "alias" comment) to LE who then went to KH and said something (we don't know what) and then KH alleged all the unknown party's unproven allegations in his request for a RO.

So, issues in this divorce include allegations from an accuser. She has the right to confront the accuser and allegations.

Memo to self: next time I get involved in a divorce, have someone go to LE and allege that other party had a MFH plot, then I swoop in, grab all the stuff, kick the other party to the curb, remove right to even visit any kids, and refuse to give the other party any information to defend self from accusations, including correct name of accuser. Seems to work just fine--at least in Oregon. ;} (Note: I am not saying nor alleging or inferring nor speculating that KH had someone go to LE. I am simply using the details of this case to apply to our daily lives. Not that I have to worry as I ain't gonna get married again!)

MOO

(Still in the longest run-on sentence running, I think!)

Her lawyers could have attempted to tear Kaine's allegations to shreds without having Terri to say anything if he has nothing to back it up IMO. Unfounded, irrelevant, unfounded, hearsay, the petitioner has not shown us any proof of his frivolous allegations, hearsay, irrelevant, unproven, etcetera.

They are going to confront the accuser:

Bunch said subpoenas have been served to Robert O’Donnell, the lead investigator in the case, and Rudy Sanchez, the landscaper whom Terri allegedly tried to hire to kill her husband. “We’ve got depositions set” for both men, he said.

http://www.portlandtribune.com/news/story_2nd.php?story_id=128648892311734600

 

[Billylee]

Yes, of course. That's what they're hired to do. And they are paid a pretty penny for that.
The fact is, the law regarding disso cases is very clear. TH has to disclose the source and amount.
But the argument is that in criminal law cases, the law would not demand such a disclosure and that such a disclosure may prejudice her rights and may be a violation of attorney-client privilege in the criminal case. (I disagree with the latter BTW).
I feel I came up with a solution that a judge may go for. Yes, it's not perfect because Kaine could easily violate an order sealing the disclosure. I mean, what does he feel he has to lose? He already lost his kid.
In any event, this is exciting to me from a legal perspective because it is a novel case, the overlap of areas of the law here is intriguing to me as a lawyer. I am very interested in seeing how this all pans out and what the court decides to do.
If a sweet little boy wasn't missing, though, I could get a lot more enjoyment from watching this legal dilemma unfold. Unfortunately, he is.

Gitana, I'm trying to understand this and I don't. Maybe I'm just slow, but you indicated that each party would have to disclose funds they had "access to". TH had no access to these funds, they went from a 3rd party to Houze, who is not even her divorce attorney. I asked this up thread, and I'll ask here again, if TH got a traffic ticket and someone paid it for her, would KH have the right to know who paid it? What would that have to do with joint assets? It's not like she's hiding assets, they weren't hers and they never will be, they (the money) now belongs to Houze and before that they belonged to someone else. Please help me understand.

I do understand your solution should the court require the source to be disclosed and I'll bet you're right if that happens! Thanks.

 

[debs]

Although I am not on board with your position, I admire these arguments here. They are the strongest I have seen so far on the side of protecting TH's rights.
But, as I have said repeatedly, there is a very easy way for TH to protect her rights and always has been. She could now and could have forced KH to prove his case - to present evidence. She didn't have to say a word, just stand there and have her attorney say: "We contest this RO request. TH will not be testifying because it is clear that LE has her in their sights and we want to protect her from possible incrimination. However, KH has the burden of proving TH has committed DV. Let him prove it." Then the lawyer just needs to object to every single hearsay allegation.
KH likely cannot prove his case if he and LE want to protect the LE investigation. So I ask again, why hasn't TH done this? Why hasn't she forced KH to prove his case?
It's fishy to me.
I'm trying to think of a way that strategy would prejudice TH. I haven't found one yet that is significant enough to justify not seeing her baby for three months, but I'll continue to ponder.

Thank you. I have another question, then. Why would Terri's very well versed in these matters attorneys not contest that RO? Something else must weigh heavily in the wind, there. I know the possibility is that she is guilty and they do not want to put her in a position where she would incriminate herself. But this same position is there if she is innocent, yes? And therefore, they are addressing what is being colloquially called an "end game run" around Terri's Constitutional rights by trying this tactic and perhaps her attorneys are working toward that, and the rest just has to fall in, chips as they will be, where they must, as they deal with one matter at a time?

Once again, I am fascinated by what is being put out there by the attorneys, because at this point, it does make the case much more than a simple divorce, and still can't address a missing child.

 

[Donjeta]

Thank you. I have another question, then. Why would Terri's very well versed in these matters attorneys not contest that RO? Something else must weigh heavily in the wind, there. I know the possibility is that she is guilty and they do not want to put her in a position where she would incriminate herself. But this same position is there if she is innocent, yes? And therefore, they are addressing what is being colloquially called an "end game run" around Terri's Constitutional rights by trying this tactic and perhaps her attorneys are working toward that, and the rest just has to fall in, chips as they will be, where they must, as they deal with one matter at a time?

Once again, I am fascinated by what is being put out there by the attorneys, because at this point, it does make the case much more than a simple divorce, and still can't address a missing child.

I don't see how it would interfere with Terri's constitutional rights not to incriminate herself to have her attorneys point out every instance in which Kaine's allegations are unproven or based on hearsay.

 

[debs]

I don't see how it would interfere with Terri's constitutional rights not to incriminate herself to have her attorneys point out every instance in which Kaine's allegations are unproven or based on hearsay.

The unconstitutionality, as I understand her attorney explained it, was that they were not allowed to see the incriminating information Kaine was provided by LE to set this all in motion in the first place. The presumption of Kaine is that she should just have to sit on the stand and answer his questions without regard to that part of the law. IMO.

 

[Donjeta]

The unconstitutionality, as I understand her attorney explained it, was that they were not allowed to see the incriminating information Kaine was provided by LE to set this all in motion in the first place. The presumption of Kaine is that she should just have to sit on the stand and answer his questions without regard to that part of the law. IMO.

I think Kaine can presume all he wants but can't force her to the witness stand. Her attorneys would not have had to let her testify to write a response to the court saying this is all hearsay and unproven nonsense and Kaine should be expected to back it up and bring forth the incriminating evidence if there is any before depriving a child of her mother.

Of course that would be taking the risk that he would be able to back it up in case she really is guilty.

 

[SurfieTX]

Thank you. I have another question, then. Why would Terri's very well versed in these matters attorneys not contest that RO? Something else must weigh heavily in the wind, there. I know the possibility is that she is guilty and they do not want to put her in a position where she would incriminate herself. But this same position is there if she is innocent, yes? And therefore, they are addressing what is being colloquially called an "end game run" around Terri's Constitutional rights by trying this tactic and perhaps her attorneys are working toward that, and the rest just has to fall in, chips as they will be, where they must, as they deal with one matter at a time?

Once again, I am fascinated by what is being put out there by the attorneys, because at this point, it does make the case much more than a simple divorce, and still can't address a missing child.

Which brings me full-circle back to my initial assessment. LE provided Kaine and Rackner with information/evidence that Houze and Bunch do not want on record (which is what would have happened if Terri decided to contest the RO even without taking the stand). What this information is and why they don't want it on record is anyone's guess.

 

[SacreBleu]

I also noted that Terri's attorney said that Kaine would get the house. So it doesn't appear as though material goods interest her as some have supposed.

Given the recent decline in property values, I don't expect that there would have been any increase in equity since the date of marriage. She likely isn't giving up anything, IMHO.

 

[debs]

Given the recent decline in property values, I don't expect that there would have been any increase in equity since the date of marriage. She likely isn't giving up anything, IMHO.

Other than having been evicted from the home she's known for years and made with her family, yeah. She didn't give up anything. IMO, it was all taken from her.

 

[Calliope]

Although I am not on board with your position, I admire these arguments here. They are the strongest I have seen so far on the side of protecting TH's rights.
But, as I have said repeatedly, there is a very easy way for TH to protect her rights and always has been. She could now and could have forced KH to prove his case - to present evidence. She didn't have to say a word, just stand there and have her attorney say: "We contest this RO request. TH will not be testifying because it is clear that LE has her in their sights and we want to protect her from possible incrimination. However, KH has the burden of proving TH has committed DV. Let him prove it." Then the lawyer just needs to object to every single hearsay allegation.
KH likely cannot prove his case if he and LE want to protect the LE investigation. So I ask again, why hasn't TH done this? Why hasn't she forced KH to prove his case?
It's fishy to me.
I'm trying to think of a way that strategy would prejudice TH. I haven't found one yet that is significant enough to justify not seeing her baby for three months, but I'll continue to ponder.

That would mean her attorneys go into this totally blind. I can see why they wouldn't go this route, and I don't think it's fishy.

 

[SacreBleu]

Other than having been evicted from the home she's known for years and made with her family, yeah. She didn't give up anything. IMO, it was all taken from her.

Pardon my not being clear, I meant any marital asset. Clearly, her life has been turned upside down.

 

[scotslass]

I don't have time to catch up on the posts (canadian thanksgiving weekend) so I apologize if this has been explained countless times Can someone explain to me why the 350K is an issue, I can't see that amount of money being paid out at this point (sure costs may/will run that amount and then some) Th hired an attorney after her and KH separated so isn't a moot point. He could be out buying houses etc, win the lottery and TH would be not be entitled to that money or new debts. I'm having a hard time reconciling why a BILL that will be in TH name for services after separation is important?

If it is because he thinks she used their money (marital assets) and already paid this amount wouldn't he already know that. Most people would miss 350K especially if they were looking for it.

ALSO Isn't TH entitled to know how KH is paying his attorney? In case marital assets are being used.

 

[gitana1]

Thanks for answering! What about in the instance of say, Houze having a trust set up where third parties donate to it in order for him to take on constitutional cases (or pick your case file criteria here). Would Houze then be obligated on behalf of the opposing attorney in a case for one of those clients that benefit from that trust, to reveal those funds, or should it suffice that he has written letters and spoken to Kaine and his attorney to clarify the matter, and brought it before the judge in a memorandum stating that Terri was never a beneficiary of the funds, only what the funds can purchase?

Is it still on her to prove how this high priced attorney with a trust can take her on?

If it's pro bono, which is essentially what your scenario means (he is paid a fee from a trust to represent litigants pro bono), then he just has to state that. That no money in fact was paid at all. He has not said that, though. He said that he was paid by a third party. That does not comport with your trust scenario (which I have never seen, BTW).

 

[desquire]

Although I am not on board with your position, I admire these arguments here. They are the strongest I have seen so far on the side of protecting TH's rights.
But, as I have said repeatedly, there is a very easy way for TH to protect her rights and always has been. She could now and could have forced KH to prove his case - to present evidence. She didn't have to say a word, just stand there and have her attorney say: "We contest this RO request. TH will not be testifying because it is clear that LE has her in their sights and we want to protect her from possible incrimination. However, KH has the burden of proving TH has committed DV. Let him prove it." Then the lawyer just needs to object to every single hearsay allegation.
KH likely cannot prove his case if he and LE want to protect the LE investigation. So I ask again, why hasn't TH done this? Why hasn't she forced KH to prove his case?
It's fishy to me.
I'm trying to think of a way that strategy would prejudice TH. I haven't found one yet that is significant enough to justify not seeing her baby for three months, but I'll continue to ponder.

Are you serious? You don't think Rackner's very first move would be to put Terri on the stand and grill her about every second of the day that Kyron disappeared, then about all of the things she has said or done since that day that people judge to be abnormal - including all the things that would be inadmissible in a criminal proceeding, like the polygraphs and the sexting - then throw up testimony about each and every instance where she was less than a perfect mother or a less than admirable person. The minute Terri utters the word "5th Amendment," it's game over for her both interms of the RO and the criminal case. If she can't take the Fifth on a question (and assuming she is innocent, that would be the case with every question) she risks making statements that can be seen as inconsistent with statements she made to investigators. Terri's testimony aside, Kaine would have an open invitation to air every piece of Terri's dirty laundry and sling every bit of muck he can muster about her and it will all be in every front page story and evening news teaser throughout Oregon no matter how loudly or validly Bunch objects. Terri already has a public reputation somewhere south of Mussolini's and that's after just a few of Kaine's leaks; open the taps and there will not be a potential criminal trial juror anywhere in the state that wopn't be tainted. Not to mention witnesses whose recollections will be colored or could-have-been defense witnesses who will have no appetite to publicly speak out in defense of public enemy #1. It barely even matters what the outcome of the hearing would be, Terri loses just in the fighting.

Rackner was not very impressive in the abatement fight but I have to give her more credit than to think that her only response to a contested RO would be to trot Kaine out, have him say "the police told me so" and sit down. It would have been insane for Bunch to contest the RO.
IMO of course.

 

[desquire]

I think Kaine can presume all he wants but can't force her to the witness stand. Her attorneys would not have had to let her testify to write a response to the court saying this is all hearsay and unproven nonsense and Kaine should be expected to back it up and bring forth the incriminating evidence if there is any before depriving a child of her mother.

Of course that would be taking the risk that he would be able to back it up in case she really is guilty.

BBM. These are civil cases, he can force her to testify. Her only alternatives are to (1) refuse and be held in contempt, (2) take the stand but plead the 5th where applicable, or (3) testify and run the risk that she will say something that will be used against her later. If she does 1 or 2, she loses the RO contest because the judge can make adverse inferences from her failure to answer, if she does 3 she increases her risk of prosecution and never seeing the baby again. It's a no win.

 

[1Chump]

I asked this earlier, but if Houze might have a trust set up that is dedicated to something like constitutional violation issues, then that money for his services to argue those cases isn't necessarily for the client, but the cause. Is that a possibility?

There are so many different possibilities that I do not want to speculate.

The response, page 8, lines 7-10 states:

"If Husband's efforts to require Mr Houze to disgorge the fees paid to him is successful, it would have a catastrophic effect on Wife's Sixth Amendment right to counsel of her choice."

IMO, that suggests that something was set up for anonymous donors and not necessarily specific for Teri. If the donors are revealed, the funds will no longer be available. Hence, as Teri cannot afford to pay Houze herself, her 6th Amendment right to counsel of her choice will be violated.

 

[Donjeta]

Why is it assumed that everybody would notice if some money was missing from their marital assets?

Of course everyone would notice if their own checking account had been emptied but not everybody keeps up to date with their spouse's bank accounts even though some of the money there may be marital assets, and occasionally there might be sources of income and property that are legally marital assets but the other spouse hasn't disclosed openly during the marriage.

 

[Donjeta]

BBM. These are civil cases, he can force her to testify. Her only alternatives are to (1) refuse and be held in contempt, (2) take the stand but plead the 5th where applicable, or (3) testify and run the risk that she will say something that will be used against her later. If she does 1 or 2, she loses the RO contest because the judge can make adverse inferences from her failure to answer, if she does 3 she increases her risk of prosecution and never seeing the baby again. It's a no win.

Okay but can't she also force Kaine to testify, and wouldn't Kaine stand to lose if he's just made up some malignant allegations and hasn't got the proof that LE said any of these things to him?

 

[debs]

Why is it assumed that everybody would notice if some money was missing from their marital assets?

Of course everyone would notice if their own checking account had been emptied but not everybody keeps up to date with their spouse's bank accounts even though some of the money there may be marital assets, and occasionally there might be sources of income and property that are legally marital assets but the other spouse hasn't disclosed openly during the marriage.

LOL! My first thought was because I thought no one would be that devious in a marriage. No really. I thought that. I can't explain my burst of naivete at all.

 

[1Chump]

BBM. These are civil cases, he can force her to testify. Her only alternatives are to (1) refuse and be held in contempt, (2) take the stand but plead the 5th where applicable, or (3) testify and run the risk that she will say something that will be used against her later. If she does 1 or 2, she loses the RO contest because the judge can make adverse inferences from her failure to answer, if she does 3 she increases her risk of prosecution and never seeing the baby again. It's a no win.

Is it where applicable? I know criminally once you invoke the 5th, you must continue to invoke it, ie Mark Fuhrman in the OJ trial. So I assumed in a civil court it was the same and you cannot pick and choose on the stand.

I also assumed that is one of the reasons for the abatement. That Teri's attorneys suspect that Kaine's attorney would ask a question to cause Teri to invoke the 5th on the stand to prohibit her from responding to any questions.