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

[debs]

I believe the point of the withdrawal was that Terri's rights would be violated both on the State and Federal level to be forced to submit to depositions, testing, and whatever else Rackner included in her motion. Withdrawing was outlined and made quite clear that it was not because Terri did not want time with her child. In fact, Bunch asserted again that he would continue to work toward a solution with Kaine to resolve this matter so that the matter of the divorce, which was abated until January did not keep coming up.

He stipulated that they have been working since July to come to a reasonable parenting plan, up to and including supervised visitation.

 

[debs]

"The State" would be that assistant DA that sits in at a civil hearing, right?

 

[BeanE]

Noting for reference that Desiree claims not to have known about any alcohol abuse.

Desiree about alcohol transcribed:

Without a doubt I wish I had known it before.

I wouldn't tolerate it, and if I would have known, I would have taken him out of that house in a second.


Today Show, Friday, November 12, 2010
http://today.msnbc.msn.com/id/26184891/#40148378

 

[BeanE]

"The State" would be that assistant DA that sits in at a civil hearing, right?

I dunno, because it says "after that hearing", so I'm thinking a phone call or Terri's attorney(s) visited the DA's office. But it could be that they talked in the hall (or went out for lunch) after the meeting.

 

[debs]

Noting for reference that Desiree claims not to have known about any alcohol abuse.

Desiree about alcohol transcribed:

Without a doubt I wish I had known it before.

I wouldn't tolerate it, and if I would have known, I would have taken him out of that house in a second.


Today Show, Friday, November 12, 2010
http://today.msnbc.msn.com/id/26184891/#40148378

Was any proof offered for the allegations that Terri is a boozing drunk, or is this all just from Kaine? And if those allegations are true (just cuz he says it doesn't make it so), was Desiree owed that information from Kaine, and if so, why didn't he tell her?

 

[BeanE]

Was any proof offered for the allegations that Terri is a boozing drunk, or is this all just from Kaine? And if those allegations are true (just cuz he says it doesn't make it so), was Desiree owed that information from Kaine, and if so, why didn't he tell her?

I refuse to answer on the grounds that I may incriminate myself, although innocent of any crimes.

 

[BeanE]

I believe the point of the withdrawal was that Terri's rights would be violated both on the State and Federal level to be forced to submit to depositions, testing, and whatever else Rackner included in her motion. Withdrawing was outlined and made quite clear that it was not because Terri did not want time with her child. In fact, Bunch asserted again that he would continue to work toward a solution with Kaine to resolve this matter so that the matter of the divorce, which was abated until January did not keep coming up.

He stipulated that they have been working since July to come to a reasonable parenting plan, up to and including supervised visitation.

I think it's two things:

1- Terri can't testify (or give depos or affidavits or anything), because any part of what she states can be used to incriminate her, even if innocent. With the extent that Rackner/Kaine has shown intent to go to, with multiple depos and 4 days of hearings for example, there is bound to be testimony that Terri would have to refute, because if she doesn't, it will stand. She's between a rock and a hard place.

2- The state refuses to provide Terri/her attorneys with the discovery. This leaves her/her attorneys in a position of having to prepare to defend her blind. It's just not possible. If the state would turn over the discovery, she/her attorneys could possibly allow Terri to testify, because at least then they'd know what there may be proof of.

Personally, I wonder if the reason the state won't turn over discovery is because a) Terri's attorneys will know they have nothing, and/or b) they would have to turn over *all* discovery - inculpatory and exculpatory - and I wonder if the state/LE actually has exculpatory evidence they don't want to get out.

 

[Trt]

The state will not turn over discovery because Terri Horman has not been charged with anything. I've never known a state's DA's office to turn over discover to someone who hasn't been charged. Why would they or should they? The only people that have listed Terri as any type of suspect are her lawyers. LE is conducting an active investigation. The *defacto suspect* and her attorneys are trying to put the cart before the horse.

I am still wondering how or why Terri refutting anything stated in Kaine's affidavit would incriminate her since none of the assertions or allegations provided in the affidavit are criminal.(outside of what has already been claimed by Kaine in the RO and are thus uncontested facts for the purposes of the RO anyway).

JMO

 

[Chablis]

Was any proof offered for the allegations that Terri is a boozing drunk, or is this all just from Kaine? And if those allegations are true (just cuz he says it doesn't make it so), was Desiree owed that information from Kaine, and if so, why didn't he tell her?

I think she has a DUI from a few years back when she was pulled over with her son in her car, while intoxicated, so she has a history with alcohol abuse. And Kaine lived with Terri, none of us did, so I will take his word she was abusing alcohol, I haven't heard Terri refute it once, and maybe she couldnt refute it because she was going to blame the text messages on being tipsy, because thats pretty much the only good defense for those, but anyways, Desiree deserved to know that Terri was drinking and Kaine did not inform her, and I am sure he will regret his actions for the rest of his life, but he is not the first man to enable an addict, IF Terri is one, which I believe she probably is. It would explain her behavior alot. jmo

 

[BeanE]

The state will not turn over discovery because Terri Horman has not been charged with anything. I've never known a state's DA's office to turn over discover to someone who hasn't been charged. Why would they or should they?

I was wondering about that. It's reciprocal discovery that her attorneys are after I believe. Anything given to Kaine. I don't know if that applies when there have been no charges, and/or in civil actions. Time for a trip to the attorney Q&A thread.

I am still wondering how or why Terri refutting anything stated in Kaine's affidavit would incriminate her since none of the assertions or allegations provided in the affidavit are criminal.(outside of what has already been claimed by Kaine in the RO and are thus uncontested facts for the purposes of the RO anyway).

JMO

Desquire gave a good example, I believe in the attorney Q&A thread, regarding someone just out for a walk.

ETA:

Sure you can. You can "plead the 5th" in any context at any time. The only requirement is that you have some basis for believing that your testimony may tend to incriminate you. A common misconception is that this means you actually have to be guilty of some crime but the "incriminate" in this context simply means to make it more likely that you would be prosecuted for a crime. The Supreme Court has affirmed that the 5th Amendment's privilege against self-incrimination exists, in part, “to protect innocent men … who otherwise might be ensnared by ambiguous circumstances.” Accordingly, it would defeat the purpose of the protection if you could only use it after you had been charged and put on trial.

To build on your example, let's say you witnessed that car accident because you were out taking a late night walk - something you ate earlier was keeping you awake. Coincidentally, a house down the block was robbed that night and the police are looking for a perpetrator based on a description that could easily fit you. You had nothing to do with the robbery but you don't have a verifiable alibi for the relevant time period either. When called to testify as a witness in civil litigation regarding the car accident, you would be entitled to plead the 5th because going on record to declare that you were in that location at that time might make it more likely that you could be prosecuted for the robbery.

 

[Chablis]

I believe the point of the withdrawal was that Terri's rights would be violated both on the State and Federal level to be forced to submit to depositions, testing, and whatever else Rackner included in her motion. Withdrawing was outlined and made quite clear that it was not because Terri did not want time with her child. In fact, Bunch asserted again that he would continue to work toward a solution with Kaine to resolve this matter so that the matter of the divorce, which was abated until January did not keep coming up.

He stipulated that they have been working since July to come to a reasonable parenting plan, up to and including supervised visitation.

And heres the thing. Kaine does NOT have to give into Terri and work towards a solution with her, because he has all the upper cards here. He showed her how serious he is about her not being with that baby by submitting alot of dirt he has on Terri to the courts, her Lawyers knew they couldn't win, thats why they withdrew, because if Kaine has a letter from a DA backing him up on the MFH, Terri is toast, no one is going to hand her a child based on just that.

As long as there is a restraining order in place, Kaine does not have to try to work anything out with someone who more than likely did something to his son and is lying about it and refuses to cooperate at times. Setting aside the M4H and texts, that is enough for a Judge to not let her be around children.

jmo

 

[SurfieTX]

I have to wonder why Terri didn't contest the restraining order or file for a parental modification from the get-go. She was served on a Sunday IIRC and hired Houze on Wednesday. The texts with MC started on that same Wednesday. Therefore, the only hindrance to parental modification or contesting the RO would have been the murder-for-hire. Therefore, if the MFH was just a rumor or a ruse, it would have pretty easily been addressed right then with Terri's lawyers asking for proof of Kaine's allegations. But they didn't. Had they, the texts most likely wouldn't have surfaced until the actual divorce (if Rackner chose to use them).

 

[BeanE]

And heres the thing. Kaine does NOT have to give into Terri and work towards a solution with her, because he has all the upper cards here. He showed her how serious he is about her not being with that baby by submitting alot of dirt he has on Terri to the courts, her Lawyers knew they couldn't win, thats why they withdrew, because if Kaine has a letter from a DA backing him up on the MFH, Terri is toast, no one is going to hand her a child based on just that.

As long as there is a restraining order in place, Kaine does not have to try to work anything out with someone who more than likely did something to his son and is lying about it and refuses to cooperate at times. Setting aside the M4H and texts, that is enough for a Judge to not let her be around children.

jmo

BBM. Do you have a link to that letter from a DA backing Kaine up on the MFH?

The only DA letter I'm aware of is regarding sealing/unsealing the RO.

If there's a letter from a DA that supports either the MFH allegations or Terri's involvement in Kyron's disappearance, then that's a *BOMBSHELL* that I would have expected to be all over the news, and I would very much like to see it, so I can notify the media, and get off this darn fence.

TIA

 

[Adrienne37]

I have to wonder why Terri didn't contest the restraining order or file for a parental modification from the get-go. She was served on a Sunday IIRC and hired Houze on Wednesday. The texts with MC started on that same Wednesday. Therefore, the only hindrance to parental modification or contesting the RO would have been the murder-for-hire. Therefore, if the MFH was just a rumor or a ruse, it would have pretty easily been addressed right then with Terri's lawyers asking for proof of Kaine's allegations. But they didn't. Had they, the texts most likely wouldn't have surfaced until the actual divorce (if Rackner chose to use them).

Terri didn't contest the restraining order because she knew she would incriminate herself and since she cares only for herself and not her daughter, as evidenced by her actions regarding the restraining order and the subsequent withdrawal of her request for visitation, she knew her goose was cooked. The only thing left for Terri to do at this point is to tell the truth about where she buried Kyron and let his loving family have at least some degree of closure before the holidays. JMO.

 

[Trt]

I was wondering about that. It's reciprocal discovery that her attorneys are after I believe. Anything given to Kaine. I don't know if that applies when there have been no charges, and/or in civil actions. Time for a trip to the attorney Q&A thread.




Desquire gave a good example, I believe in the attorney Q&A thread, regarding someone just out for a walk.

ETA:

Yes, thanks BeanE...I'll be watching the thread to see what our lawyers come up with...I'm pretty sure that LE has discretion on whom they can provide information to within a victim's family during an active investigation.

In desquire's example, though, the thing that the person is pleading the fifth for could still be incriminating(i.e. they were out getting a drink and a robbery happened at the same time with someone that could match their description). But here we have Kaine saying that Terri was drinking and passing out AT THE HOUSE and doing things AT THE HOUSE that in his opinion, meant that she wasn't a fit parent. So how would refutting those things be anything that could incriminate her if she fought them? He didn't assert that she would get drunk and then go driving or get drunk and become violent...just that she would pass out or stay on the computer all the time.

What could incriminate her, even if innocent, that would mean she would have to plead the fifth based on Kaine's assertions contained in the affidavit?

JMO

 

[Chablis]

BBM. Do you have a link to that letter from a DA backing Kaine up on the MFH?

The only DA letter I'm aware of is regarding sealing/unsealing the RO.

If there's a letter from a DA that supports either the MFH allegations or Terri's involvement in Kyron's disappearance, then that's a *BOMBSHELL* that I would have expected to be all over the news, and I would very much like to see it, so I can notify the media, and get off this darn fence.

TIA

The letter was never linked, but was in Kaines filing to the court, I learned about this last night on the locked thread, there is some info on the last two pages.

 

[BeanE]

Yes, thanks BeanE...I'll be watching the thread to see what our lawyers come up with...I'm pretty sure that LE has discretion on whom they can provide information to within a victim's family during an active investigation.

In desquire's example, though, the thing that the person is pleading the fifth for could still be incriminating(i.e. they were out getting a drink and a robbery happened at the same time with someone that could match their description). But here we have Kaine saying that Terri was drinking and passing out AT THE HOUSE and doing things AT THE HOUSE that in his opinion, meant that she wasn't a fit parent. So how would refutting those things be anything that could incriminate her if she fought them? He didn't assert that she would get drunk and then go driving or get drunk and become violent...just that she would pass out or stay on the computer all the time.

What could incriminate her, even if innocent, that would mean she would have to plead the fifth based on Kaine's assertions contained in the affidavit?

JMO

Anything a person says, or any part thereof, can be used - even twisted and turned - to incriminate them, even if completely innocent of a crime.

This is how, IMO, people get convicted of crimes they didn't commit, such as the cases we hear about in the news from time to time, where someone is exonerated due to DNA or whatever proving definitively that they did not commit the crime.

Even if completely innocent of any crime at all, it's better to keep one's mouth shut. In fact, it's even more important if completely innocent to keep one's mouth shut.

I didn't used to feel that way, but I sure do now.


Don't Talk to the Police Even if your Innocent Pt1 of 3
[ame]http://www.youtube.com/watch?v=jhbJd2USUDI[/ame]

The other 2 parts of this law school seminar are listed to the right on the YouTube page.

 

[Trt]

Anything a person says, or any part thereof, can be used - even twisted and turned - to incriminate them, even if completely innocent of a crime.

This is how, IMO, people get convicted of crimes they didn't commit, such as the cases we hear about in the news from time to time, where someone is exonerated due to DNA or whatever proving definitively that they did not commit the crime.

Even if completely innocent of any crime at all, it's better to keep one's mouth shut. In fact, it's even more important if completely innocent to keep one's mouth shut.

I didn't used to feel that way, but I sure do now.

I get that...I'm just not sure how Terri's words refutting alcohol abuse and being an unfit parent(even the sexting) could be twisted and used regarding a CRIME when there is no crime alleged in the affidavit. Terri withdrew her motion after Kaine's affidavit...after already knowing that the potentially criminal allegations were uncontested facts for the purposes of the RO(she chose not to fight it - which I completely understand in the context of *incriminating oneself* and one's priorities) but the only *new* information that we had that caused the withdrawal of Terri's motion was Kaine's affidavit alleging NO CRIMINAL ACTIVITY...

We already knew that Terri wasn't planning to testify. We already knew that an *expert* was ready to testify *in general* that children should have both parents in their lives. We already knew that Terri's lawyers were not going to allow any type of evaluations of their client. Terri and her lawyers also knew that whether or not to allow visitation WITHOUT the above would be up to the judge and they, through their motion, were willing to accept a judge's ruling on that...until Kaine filed his affidavit. Again, an affidavit that alleges nothing criminal.

That just boggles my mind that there had to be something in that affidavit that scared Terri and her lawyers so bad that she would withdraw at that time.

Unless Terri and her lawyers had been blowing smoke the whole time and never really intended to get to court regarding visitation, the whole thing being a weak attempt at gaining some sympathy in the eyes of the public.

JMO

ETA: Terri had already spoken with police...this was a civil hearing about whether or not she should get visitation with her child. She was aware that the judge had the discretion to order as he wished should she come to court requesting visitation. Kaine's affidavit shouldn't have had that much of a bearing on their decision to motion for the modification. JMO

 

[BeanE]

The letter was never linked, but was in Kaines filing to the court, I learned about this last night on the locked thread, there is some info on the last two pages.

Looks like it's just a rumor to me. Again, the only letter I've seen from a DA is regarding sealing/unsealing, in this document, page 2:
http://www.koinlocal6.com/media/lib/107/e/1/2/e12f2287-ce0b-48e0-8d85-e3955216ae1b/FULLORDER.pdf

All that says is that he gave an affidavit on July 2 that unsealing the sealed matters in the RO would undermine "our on-going criminal investigation", and that no longer holds true because of the media exposure that weekend.

It doesn't even say which criminal investigation.

IMO it's quite a stretch to term that a "major" "piece of concrete evidence" "supporting the MFH allegation".


Quote from citigirl:

There was at least one other major other piece of concrete evidence, a letter from the D.A., supporting the MFH allegation.

[ame="http://www.websleuths.com/forums/showpost.php?p=5789989&postcount=401"]Websleuths Crime Sleuthing Community - View Single Post - The Texts Messages: Warning! Graphic SEXUALLY EXPLICIT#2[/ame]


Quote from citigirl:

The letter is not posted. It was given to the judge along with Kaine's statement in the request for the original restraining order.

We are getting off-topic again...

[ame="http://www.websleuths.com/forums/showpost.php?p=5790211&postcount=408"]Websleuths Crime Sleuthing Community - View Single Post - The Texts Messages: Warning! Graphic SEXUALLY EXPLICIT#2[/ame]

 

[BeanE]

I get that...I'm just not sure how Terri's words refutting alcohol abuse and being an unfit parent(even the sexting) could be twisted and used regarding a CRIME when there is no crime alleged in the affidavit. Terri withdrew her motion after Kaine's affidavit...after already knowing that the potentially criminal allegations were uncontested facts for the purposes of the RO(she chose not to fight it - which I completely understand in the context of *incriminating oneself* and one's priorities) but the only *new* information that we had that caused the withdrawal of Terri's motion was Kaine's affidavit alleging NO CRIMINAL ACTIVITY...

We already knew that Terri wasn't planning to testify. We already knew that an *expert* was ready to testify *in general* that children should have both parents in their lives. We already knew that Terri's lawyers were not going to allow any type of evaluations of their client. Terri and her lawyers also knew that whether or not to allow visitation WITHOUT the above would be up to the judge and they, through their motion, were willing to accept a judge's ruling on that...until Kaine filed his affidavit. Again, an affidavit that alleges nothing criminal.

That just boggles my mind that there had to be something in that affidavit that scared Terri and her lawyers so bad that she would withdraw at that time.

Unless Terri and her lawyers had been blowing smoke the whole time and never really intended to get to court regarding visitation, the whole thing being a weak attempt at gaining some sympathy in the eyes of the public.

JMO

ETA: Terri had already spoken with police...this was a civil hearing about whether or not she should get visitation with her child. She was aware that the judge had the discretion to order as he wished should she come to court requesting visitation. Kaine's affidavit shouldn't have had that much of a bearing on their decision to motion for the modification. JMO

Personally, I don't think it was anything in the affidavit that caused the cancellation. Reading the withdrawal document, it looks to me that the turning point was when Rackner told Bunch/Houze, after the hearing, that she intended to schedule multiple depos and 4 days of hearings.

That would be sure to present testimony that Terri would need to refute, or it would stand, but Terri can't testify.

I believe it was on the 29th that Rackner went ahead and scheduled those 4 days of hearings. There's a post by gwenabob. She had been checking for scheduled hearings, and I believe when she checked on the 29th it was when she found that the 4 days had been scheduled by Rackner.