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

[Bluestars]

most people who go through divorces--no matter how nasty--don't have to worry about Miranda rights, as most have not kidnapped and disposed of their stepchild.

All my opinion.

I believe most people who have a child who has been abducted would put finding their child above all else, even above their right to remain silent. Unless she had something to do with abducting Kyron, then she is only hurting the investigation by remaining silent due to other issues and it shows her need to protect her rights outweighs her desire to find her missing son (IMO).

 

[Jade2010]

most people who go through divorces--no matter how nasty--don't have to worry about Miranda rights, as most have not kidnapped and disposed of their stepchild.

All my opinion.

Or are innocent and being accused of kidnapping and disposing of their son.

 

[cypress]

I believe most people who have a child who has been abducted would put finding their child above all else, even above their right to remain silent. Unless she had something to do with abducting Kyron, then she is only hurting the investigation by remaining silent due to other issues and it shows her need to protect her rights outweighs her desire to find her missing son (IMO).

If she doesn't know anything about Kyron's disappearance, then her silence is only indicative of her not knowing anything. It's a possibility...

 

[JBean]

we have to realize that self incrimnation can be as simple as conflicting answers given to previously asked questions. It doesn't mean that she will have to confess or reveal information regarding Kyron, but there is good chance that questions may lead to impeachment and that is what a prosecutor would want.
As I have mentioned before this is why a prosecutor would not want a complaining witness to give sworn testimony or answer questions posed to them from the defense at any time prior to trial. the complaining witness stands to be impeached as well and that would hurt the state's case.
my point is that whether one is guilty or innocent or whether one is a defendant or if they are a witness for the prosecution it is always desireable to avoid answering questions (posed by the opposing side) prior to trial specifically because the goal is to impeach and find conflicting statements that serve to the other sides advantage.

 

[Bluestars]

If she doesn't know anything about Kyron's disappearance, then her silence is only indicative of her not knowing anything. It's a possibility...

That's true, but until she speaks, we just don't know one way or the other. I feel sad for Kyron. I know Terri needs to do what is best for her though.

 

[grandmaj]

You know I think Terri's Attorneys have a job to do. I think they are doing the best they can for their client given a whole multitude of issues. Including the fact she kinda dug herself in a little deeper with M. Cook.

I probably even agree that they are telling her to assert her rights under the Fifth Amendment. They are trying to defend her. And this is how they feel best to defend her. I'm not saying it is not her right believe me. I understand it is.

But it makes me believe her lawyers know that she could possibly incriminate herself in some way. Otherwise, a divorce and custody should be very simple issues.

 

[JBean]

You know I think Terri's Attorneys have a job to do. I think they are doing the best they can for their client given a whole multitude of issues. Including the fact she kinda dug herself in a little deeper with M. Cook.

I probably even agree that they are telling her to assert her rights under the Fifth Amendment. They are trying to defend her. And this is how they feel best to defend her. I'm not saying it is not her right believe me. I understand it is.

But it makes me believe her lawyers know that she could possibly incriminate herself in some way. Otherwise, a divorce and custody should be very simple issues.

I concur GJ.
Here is a made up example of what I have been trying to say.

Suppose LE asked her early on about her relationship with Kaine and asked if there were problems or any extramarital affairs, maybe trying to find suspects or a motive angle for another person to harm Kyron. Suppose she said everything was fine and no there were no affairs or other relationships that were sexual in nature. Perhaps she said no because she had no reason to reveal this info that would of course be harmful to her marriage to kaine.

Then all this information comes out about the sexting.

if she were asked again during the divorce proceedings she would have to give a different answer than she did before.
While that does not necessarily have anything to do with the disappearance of Kyron, she has just been impeached.
Now she appears to be less than honest which will in turn lead to the assumption that she may have not been honest about everything. that would add to the prosecutions case if they can show, through this impeachment, that she is dishonest.

Now in this example, it does not further the investigation or point to her as the perpetrator, but it does strengthen a potential case against her simply because she was impeached.

What I am trying to show with my made up scenario is that one cannot necessarily deduce that she has incriminating information that ties her to Kyron's disappearance, but rather one can incrimnate themself in other ways.

but from there, we can all speculate as to whether it is situation similar to as I have described or if she is withholding information about her involvement;it can go either way. This is why in criminal proceedings, the jury is not to consider a defendant invoking the 5th as an indication of guilt.
I should add that it does not work that way in Civil actions and the Judge can deduce anything he or she wants from it.

 

[mmmagique]

I understand that it doesn't mean she will incriminate herself but possibly incriminate herself. So then my next question in reasoning is "What does she have to hide?"

If Terri Horman has nothing to hide she need not assert her rights under the Fifth Amendment. If she wasn't holding back information, if she has not hired the landscaper, if she has not lied, if her timeline is right, if she didn't hurt Kyron, what is the problem with her testifying? She could go through the divorce proceeding tell the truth and not worry about the criminal case.

Unless she has some reason to not tell the truth. Only then would she possibly incriminate herself. MOO

There is no reason to assert your right not to speak unless you have something to hide. MOO

Interesting... that Terri's Attorney feels she could possibly incriminate herself.

I understand what you're saying and I agree for the most part.

But some innocent or less than savvy people have been known to incriminate themselves for things they did not do by running their mouths too much.

Personally, I believe Terri is more intelligent and more worldy wise than most people who have fallen into that trap, but the argument *can* be made that it *could* happen.

 

[1Chump]

I understand that it doesn't mean she will incriminate herself but possibly incriminate herself. So then my next question in reasoning is "What does she have to hide?"

If Terri Horman has nothing to hide she need not assert her rights under the Fifth Amendment. If she wasn't holding back information, if she has not hired the landscaper, if she has not lied, if her timeline is right, if she didn't hurt Kyron, what is the problem with her testifying? She could go through the divorce proceeding tell the truth and not worry about the criminal case.

Unless she has some reason to not tell the truth. Only then would she possibly incriminate herself. MOO

There is no reason to assert your right not to speak unless you have something to hide. MOO

Interesting... that Terri's Attorney feels she could possibly incriminate herself.

I wish it was that simple. It is very surprising how hard it is for people to testify. It does not matter how well you prepare someone to testify, the odds are they will mess up.

For some reason, people do not want to admit that they do not understand the question. Or they did not hear the full question. Or they cannot answer the question. Or it cannot possbily be that simple so they read more into the question and give an answer were everyone is left wondering how in the world they came up with that answer to that quesstion.

People will try to be helpful. They will assume they know what is being asked and answer according to their assumption and not what was really asked. People will guess at any answer when they think they know the answer that is wanted. They will try to explain things. If there is silence, they will start talking thinking they did not fully answer the question. Or they will agree with something said just too agree. People will be specific when their memories are vague.

You would think that written questions and answers should be a no brainer. Not only do they get time to think about their answer but there is little to no stress. People still misunderstand the questions or give wrong answers to the simpliest questions.

Seriously, "how old are you?" I've had people give the wrong age, their spouses age, or worse, give an answer the size of a paragraph to cover every possible age they think they might be asking about. Because they just cannot believe that the question is that simple.

I seriously heard a plaintiff iin a deposition respond to "which finger did you injure?" by stating "the blue one." Turned out he had a blue ink mark on his cast. Of course, the cast was clearly visible to all. But the client looked at his finger, saw the blue ink mark, and answered accordingly.

It sounds simple, just tell the truth. But it is an adversarial situation where you are expecting to be tricked or confused or accussed of lying so you end up confusing yourself.

 

[cypress]

That's true, but until she speaks, we just don't know one way or the other. I feel sad for Kyron. I know Terri needs to do what is best for her though.

At this point, a lot of people would argue that Terri doing what's best for Terri is selfish, but Terri is no fool. She certainly understands she is the focus of an investigation involving a missing child, a child many believe is deceased, and with her possible naiveté and general poor decision making regarding Michael Cook, she has unnecessarily complicated an already complicated situation.

She could speak out, but what could she say? She loves Kyron and wants him home? Friends, and however you want to classify Michael Cook, have stated she did say she missed her children (including Kyron) and wanted them home. Terri didn't only post on Facebook about hitting the gym, she frequently posted about printing off and distributing flyers (in those early days in the investigation), but that is rarely if ever referenced. The opinion of many, perhaps most, is already fully formed. At this point, all she has is self-preservation. When I was a child, I frequently traveled and had to sit through my fair share of flight attendants demonstrating emergency procedures. I always thought it was cruel when the flight attendants instructed adults to adjust their oxygen masks first and then help their children. In my mind, I pictured frightened children gasping for breath, begging their parents for help, watching their parents adjust their oxygen masks and take a deep breath, alleviating their agony while the child continued to suffer. In my teenage mind, I vowed I would help my children first! When I became an adult, I understood the logic behind these instructions, and that decisions such as these do make sense, that there is a reason even if in the moment the decision seems cruel. Sometimes the best thing parents can do for their children is to take care of themselves, and in this case, if Terri doesn't look out for herself, she is less likely to be in a position to be a parent to her children long-term.

If Terri truly wants to mother her daughter and son, if she wants to prove her innocence, her attorney is advising her on the best way to do so, and she appears to be following his instructions. It may seem strange to us now, but perhaps later, when more has been revealed, it will make sense. The court of public opinion has already convicted Terri, and so in that regard what Terri has to say doesn't matter. Many here have said they don't want to hear her speak. If she is ever arrested or indicted she, through her attorneys, will have her day in court. She'll have an opportunity, in some way, to tell her side of things, and the prosecution will be able to fully expose its case against her. I prefer to wait for that day (if it ever comes), when I have more information, before making a firm decision about what happened to Kyron.

 

[Bluestars]

Cypress, I understand what you are saying. My head understands it, but my heart wishes she would talk. I wish she had said something, anything, during that first month that would make people think she was worried about Kyron and was concerned. Printing fliers is unemotional, but begging for people to help find your son and worrying that he might be dead would have gone a long way to show that she cared.

It's not just the fact that she got a lawyer and chooses to remain silent. It's that we have never seen any emotion from her other than concern for herself. The e-mails released showed only concern for herself and that she had a receipt. No concern for Kyron or worry that he was unsafe or dead. Maybe she has shown it and we just haven't seen it. So it is that, along with her silence now, that makes people wonder what she is hiding.

 

[Billylee]

I wish it was that simple. It is very surprising how hard it is for people to testify. It does not matter how well you prepare someone to testify, the odds are they will mess up.

For some reason, people do not want to admit that they do not understand the question. Or they did not hear the full question. Or they cannot answer the question. Or it cannot possbily be that simple so they read more into the question and give an answer were everyone is left wondering how in the world they came up with that answer to that quesstion.

People will try to be helpful. They will assume they know what is being asked and answer according to their assumption and not what was really asked. People will guess at any answer when they think they know the answer that is wanted. They will try to explain things. If there is silence, they will start talking thinking they did not fully answer the question. Or they will agree with something said just too agree. People will be specific when their memories are vague.

You would think that written questions and answers should be a no brainer. Not only do they get time to think about their answer but there is little to no stress. People still misunderstand the questions or give wrong answers to the simpliest questions.

Seriously, "how old are you?" I've had people give the wrong age, their spouses age, or worse, give an answer the size of a paragraph to cover every possible age they think they might be asking about. Because they just cannot believe that the question is that simple.

I seriously heard a plaintiff iin a deposition respond to "which finger did you injure?" by stating "the blue one." Turned out he had a blue ink mark on his cast. Of course, the cast was clearly visible to all. But the client looked at his finger, saw the blue ink mark, and answered accordingly.

It sounds simple, just tell the truth. But it is an adversarial situation where you are expecting to be tricked or confused or accussed of lying so you end up confusing yourself.

Excellent post. Thank you.

 

[GrainneDhu]

I understand that it doesn't mean she will incriminate herself but possibly incriminate herself. So then my next question in reasoning is "What does she have to hide?"

If Terri Horman has nothing to hide she need not assert her rights under the Fifth Amendment. If she wasn't holding back information, if she has not hired the landscaper, if she has not lied, if her timeline is right, if she didn't hurt Kyron, what is the problem with her testifying? She could go through the divorce proceeding tell the truth and not worry about the criminal case.

Unless she has some reason to not tell the truth. Only then would she possibly incriminate herself. MOO

There is no reason to assert your right not to speak unless you have something to hide. MOO

Interesting... that Terri's Attorney feels she could possibly incriminate herself.

That's what Kevin Fox thought: he knew he had nothing to hide, so he talked to the police. He ended up spending 8 months in jail for that lapse in judgment. He has since been exonerated.

Wen Ho Lee knew he was innocent of espionage and treason, so he talked to the FBI. He spent nine months in solitary confinement. He has since been exonerated and received an official apology from the president of the United States (you know it's bad when the president feels the need to apologise!).

Steven Hatfill knew he was not involved in the anthrax attacks, so he talked to the FBI. The FBI named him as a POI, invited the media to observe their search of his apartment and ruined his career. He has since been exonerated.

The Innocence Project has exonerated 258 falsely convicted prisoners, many of them from death row. Many of those people, knowing they were factually innocent, spoke with LE without legal representation. The average amount of time spent in prison for those people is over 8 years; some of them served over 20 years.

Those are all people who were factually innocent. If the meme of "you have nothing to fear if you are innocent" none of them should have suffered the way they did. I can't even imagine what it would be like to spend 8 months in prison, let alone over 20 years. There is nothing, absolutely nothing that can be done to set that right again.

Even statements of truth from a factually innocent person can be used to incriminate them.

 

[GrainneDhu]

I believe most people who have a child who has been abducted would put finding their child above all else, even above their right to remain silent. Unless she had something to do with abducting Kyron, then she is only hurting the investigation by remaining silent due to other issues and it shows her need to protect her rights outweighs her desire to find her missing son (IMO).

It has been widely reported that TMH was interviewed extensively and LE described her as being cooperative before the failed MFH sting.

IF she is factually innocent and was fully cooperative, it sure didn't get her very far. How would more talking about the same subject change anything?

One of the definitions of insanity is to keep doing the same thing repeatedly expecting different results.

 

[JBean]

It has been widely reported that TMH was interviewed extensively and LE described her as being cooperative before the failed MFH sting.

IF she is factually innocent and was fully cooperative, it sure didn't get her very far. How would more talking about the same subject change anything?

One of the definitions of insanity is to keep doing the same thing repeatedly expecting different results.

IMO, there is something about her stories that are not adding up for LE and that is why she is a target. I believe that it is more likely than not that there is a good foundation for the suspicion.
So, while she may have been cooperative, it is reasonble to assume that something of what she told them is not truthful or directly honest.

There is no doubt in my mind that she cannot answer the same questions that she was extensively asked when she was fully cooperative early on with the same answers today.
JMHO of course.

 

[Bluestars]

It has been widely reported that TMH was interviewed extensively and LE described her as being cooperative before the failed MFH sting.

IF she is factually innocent and was fully cooperative, it sure didn't get her very far. How would more talking about the same subject change anything?

One of the definitions of insanity is to keep doing the same thing repeatedly expecting different results.

Based on Kaine's comments and Desiree's comments, it seems that Terri's story of what she did on June 4th changed several times. I agree with you that if Terri told LE and everyone else on June 4th that she went to the 1st FM, the 2nd FM, driving with the baby, the gym, and then home, and kept the same story no matter how many times that she was asked, that it would be kind of crazy to have to say it 100 times. However, it does not look like that was the case.

Desiree stated in an audio interview at the end of July that she didn't know Terri went to the grocery store on June 4th. That leads me to believe that Terri did not tell people the same story over and over again. The leads me to believe that she changed her story. Therefore, I don't see it as Terri stating the same thing over and over again and nobody believing her. I see it as Terri being intentionally vague so as to mislead people. IMO

 

[gitana1]

I guess we will respectfully agree to disagree. At this point it's a safe bet that the case against Terri will be circumstantial and that she doesn't have a verifiable alibi for the whole day. That's a precarious position for an innocent person to be in and I would never advise an innocent person facing these circumstances to risk making her position worse just to overturn a temporary restraining order. It could be a terribly pyrrhic victory. The RO expires in about10 months if there's no domestic relations order sooner; conviction for murder is for keeps.

True, 10 months and life are far different. But, this is not merely a temporary restraining order we're talking about. See, I'm looking at it more, I guess, from a family law perspective, not criminal. All I see are clients who either fight hard for contact because it's in their kids best interest or fight hard for contact cause it's in their own best interest. My clients are parents - moms and dads. And the only ones I have seen ever give up their kids (contact and/or custody), in the manner TH has, are ones who are mentally ill or guilty of the allegations against them. These people otherwise fight like mad for their kids even in the face of amazing allegations.
From that perspective, 10 months (when dealing with an infant), is an eternity because that sets up a status quo that is prejudicial to TH's right to parent her baby, and that prejudice against TH lasts much, much longer than 10 months. It extends to every subsequent custody determination by the court.
So what she has allowed to happen here is to set up a situation where long after the RO has terminated (10 months from now, assuming KH does not petition to have it extended, which he can), her rights to custody of Baby K have been seriously prejudiced. As I've said before, in my professional opinion, based upon a review of OR family law, the only way she would get custody at any time in the future is if KH agreed or if he was proven to be an unfit parent at some point. Her decision not to contest the "temporary" RO has permanent implications when it comes to custody of and rights, to her child.
But, as you know, I don't practice criminal law and this case is really a crossover. So let me ask, Desquire, how would failing to answer questions in a civil case (pleading the fifth) about her unverifiable alibi, aid in the criminal investigation against her or otherwise implicate her criminally? I mean, hasn't failing to contest the RO at all basically done the same thing
as pleading the fifth would do? At least if she tried to fight the RO and gain some contact with her baby, by forcing KH to prove his case and while pleading the fifth, she would have had some chance at seeing Baby K. Not doing anything at all, she has none.

 

[grandmaj]

IMO, there is something about her stories that are not adding up for LE and that is why she is a target. I believe that it is more likely than not that there is a good foundation for the suspicion.
So, while she may have been cooperative, it is reasonble to assume that something of what she told them is not truthful or directly honest.

There is no doubt in my mind that she cannot answer the same questions that she was extensively asked when she was fully cooperative early on with the same answers today.
JMHO of course.

I agree with this 100 percent. I believe that Terri has painted herself into a corner.

She also continued to act in what I would refer to as reckless with the throw away phones, and the whole M. Cook deal. That also leads me to resonably believe there may be something else we haven't even heard about.

I don't believe Terri is afraid to make a mistake in testifying. I believe she would have to impeach herself.

 

[gitana1]

Gitana, Thanks for making the asset disclosure a little more clear. I think (?).

In the Horman case, KH could argue that TH has access to funds from her parents. That she asked that those funds be used for her criminal defense expenses and not her disso attorney's fees. So, depending on the amount that was paid, she made a choice of where those funds would go and KH should not have to pay for her attorney's fees. He could also argue that because a third party essentially gifted her a large sum, she is in a better position financially than him, after all the assets and debts are divided, and thus she should pay his fees.
But he has to know how much and from where in order to make those arguments.

Okay, now clear this up for me. If, Kaine's attorney has to know how much and from whom in order to argue. Why is it that Bunch & Houze don't get to know the details behind the RO in order to argue?

Isn't that the same type of issue?

Not really. One issue pertains to the disclosure of finances and when that must be done (pre-trial) and the other deals with allegations of DV and the details of that must be disclosed at trial, not before.
TH would be entitled to those details if she had chosen to contest the RO. Allegations do not stand on their own unless the other party fails to contest them in any way.
However, TH could in fact have asked for a continuance and served discovery (requests for verified information) on KH to determine what evidence he actually has, prior to the hearing. I've done that before. Not sure why they didn't.

 

[gitana1]

I think it is because the MFH details are part of a criminal investigation.

Right, but TH is entitled to discovery responses from KH. Not LE, but KH. So, I would want to know whether he actually has evidence backing his allegations, if I were TH. Again, yet another step she could have taken that she inexplicably did not.