Curiosity Never Kills the Cat: Legal Questions for VERIFIED LAWYERS- ~No Discussion~

[AZlawyer]

I was telling someone that the element of intent is not used to prove "murder" in criminal cases for certain states. But the elements of opportunity and means still are. Also, I think it is obvious that you need evidence to prove a case.

From what I've read, negligent and probable proximate behavior of the defendant is sufficient for guilt in a wrongful death suit. E.g., if it is found that more likely than not Dina and/or Nina did something to Becky, and she died as a result of their proximate behaviors, then that is sufficient for "proof" in wrongful death.

Yep, circumstantial as well as direct evidence would come into play here. I think everything taken together (e.g., eyewitnesses placing Dina at the crime scene as well as Nina coming forward stating she was indeed physically present at the mansion, as well as the physical impossibility of the suicide -- Becky could not have physically accomplished the feat of hurling herself off the balcony all bound and gagged without making any prints/DNA on balcony, etc.) makes for a very strong case that more likely than not, Becky was murdered and that someone who was physically at the crime scene during Becky's time of death did something to cause her death.

AZLawyer, I hope you don't mind my asking. What law specialty are you in?

According to the AZ State Bar, it's an ethics violation to say you are in any "specialty" unless it's one of the handful of "specialties" they offer for money lol. So...my first legal job was working on death penalty cases. My second one was mostly mining law and contracts. Then I worked for an AZ Supreme Court judge--about 1/2 criminal and 1/2 civil with a large helping of death penalty on the criminal side. Then bankruptcy and civil litigation. Then mostly employment law. Currently heavy on civil litigation, some health care law and probate, and appeals in every area I can get (civil, criminal, divorce, probate). A little bankruptcy still, and a personal injury or medical malpractice case here and there. Defamation and wrongful death are both civil litigation, and I have handled both types of cases recently.

To respond to your post...

Intent is definitely an element of murder everywhere. Motive is definitely not an element of murder anywhere in the US.

Opportunity and means are not elements of murder, but I agree it's pretty tough to convince a jury that a person killed someone without proving opportunity and means.

I agreed with you about the elements of wrongful death. I'm not completely familiar with the evidence here, but from what you've said it sounds like they might have the start of a case. Most likely they could keep it in court long enough to compel additional evidence from the possible perps to see if they might make an even stronger case.

 

[AZlawyer]

I did some research into defamation and found this:

"1. False Statement of Fact

Truth is an absolute defense to a claim for defamation. No one can prevent you from telling the truth, even if that truth harms someone else. Further, the statement of an opinion generally will not constitute defamation, since it is not offered as a statement of fact. For example, if a food critic states that a restaurant serves horrible food, that is not defamation since taste will always be an opinion. Even if the restaurant brought 100 witnesses to court to attest that the food is wonderful, the critic is still entitled to his opinion.

On the other hand, some believe that they can escape liability by casting a fact as an opinion. A number of clients have come to us for a second opinion after another attorney has told them a statement is not defamatory because it was stated as an opinion. Adding the word "opinion" to a defamatory statement does not automatically shield the speaker from liability. The determining factor is whether the "opinion" is about a verifiable fact. For example, as stated above, a food critic is protected when he offers his opinion about the food, but if he says, "in my opinion the food was horrible and the restaurant has rats," the statement about rats is defamation (assuming it is false) because it is a verifiable fact. Similarly, "in my opinion, he cheats on his taxes" is a defamatory statement since it is the assertion of a fact, even though it is called an opinion.

Context is everything in determining whether the speaker was offering the statement as a verifiable fact. We once received a call from someone who was checking out at a local supermarket, and tried to pay with a Discover card. The cashier said the store didn't accept that credit card, and when the customer said he had always paid with his Discover card, the cashier rudely responded, "You're crazy; I've been here ten years and we have never taken Discover cards." The thin-skinned caller wanted to sue for defamation because she had accused him of being crazy in front of the other people in line. Clearly the statement was not intended as a verifiable fact. The cashier was not saying, "you are suffering from a mental illness that would be verified by an examination from an appropriate mental health professional." She was just expressing in a colorful, albeit rude, manner that he was mistaken about the Discover cards.

In determining whether a statement is true or false, you must also examine how the statement is made. If a newspaper reports that Joe Dokes was arrested and charged with murder, and it is later determined that Joe Dokes was innocent, that does not mean that the newspaper is now liable for defamation. What the newspaper reported was absolutely true -- he was arrested and charged with murder.

Similarly, the statement must be viewed in context. Upon learning that you and your spouse make it a point to go on a "date night" every week, Dr. Laura calls you "bad parents" on the radio because she feels that parents should never leave their children with a babysitter. You could not sue for defamation, because she is entitled to believe and say that such conduct constitutes bad parenting. In one Internet defamation case, a court held that calling someone a liar was not defamatory when the circumstances made clear that the speaker did not have sufficient facts to reach that conclusion."

"Your reputation is priceless

Whether you respond with just a letter or go to a full blown lawsuit, you should never allow a defamatory statement to go unchallenged. Silence is perceived as acceptance. If you did nothing about what was being said about you, it must be true. The goal in a defamation action can be to recover damages, but often that is not the primary goal. The priceless value of a defamation action is to gain back your reputation. When someone says to you, "but didn't I hear or read somewhere that you [fill in the blank]?", you can answer, "yes, someone was spreading that lie, but I sued him and he was found liable for defamation and had to pay me damages."

http://www.toplawfirm.com/whatisdefamation.html

~~~~~
Therefore, I think a strong defamation case can be made if all statements made by Dina were taken in their totality, and thoroughly assessed with the above legal criteria in mind.

Well, you always have to be careful taking things from websites, but I don't disagree with this guy for the most part. For example, if Dina had said, "in my opinion, based on the scientific evidence I have collected, I think I have proof that XZ killed Max," that would be a closer call for sure. Here, she did NOT say that her scientific proof showed ANYTHING about who the perp was. She said she had proof that he had been killed. She said her opinion about who did it was just based on the fact that it must have been someone in the house--nothing more. So IMO she hasn't crossed the line.

Sounds like "toplawfirm" would take the case, though.

 

[chinacat67]

The law intrigues me. I'm not following about the exemption of waiver to disclose/keep close the files. LE specifically wrote a letter to the Zahau attorney threatening that if she releases info "piecemeal" to the public, then LE will release the entire file to the public and disclose whatever sensitive material there is about Becky in those files. Zahau lawyer chose not to release any info. What is the exemption you're referring? What was waived?

Was LE threatening the family with disclosure? Absolutely! But I don't think, anymore, that was the ONLY thing LE was saying or that it was said 100% to protect LE from what was in the file.

I will try to upload the letter tomorrow--but after reading the California Open Records laws, I believe it says essentially this, in legalese:


---Under California law, we [LE] do not have to give you [Anne Bremer/the family] this investigatory file. And, in fact, in general, normally if we give someone this type of file, we typically have to then, under that same law, give that file to anyone else who asks us for it.

But, we believe that you will agree that letting anyone else have the file would be a bad thing [for whatever reason]. Since we both agree that would be a bad idea, we are going to try to circumvent that problem by making up a really specific and narrow rule, based on a single clause in this law, taken out of context, as our reason to give you this information.

Again, since you, Anne, don't want to release the whole file either [for whatever reason], let's agree on this sort of made-up reason that keeps the file between just you and us. If we are going to use this rule and make it work, it has to be this way, okay?

Be warned, though, that if you release some parts of the file while not all of the file, we are going to stop this made-up situation and go back to the regular rule, which is anyone can have the whole file.-------


Under California open records law (their equivalent of FOIA) the general rule is that the government files in California are open to anyone.

BUT there is a handful of absolute exemptions or exceptions that keeps certain government records closed to the public. Law enforcement files are one of those exemptions.

The rule, then, is California records are open. The exception/exemption to the rule is that California LE records are not open.

The exception to the exception (yes, this is how the law works! lol!) is if LE chooses to give out its records, it can't pick and choose who gets the file. LE doesn't have to give out files, but if they "waive" their exception/exemption, and do give it out, then the file gets kicked over into the general rule---that it is open to anyone.

Long law short---Rule=California records open. Exception=Cal. LE records closed. Exception to Exception=if LE gives out a file to anyone it becomes open to everyone.

It is actually quite clever of LE's counsel---not only do they prevent public access to the file, they "blackmail" the family into not disclosing ANYTHING in the file for fear of EVERYTHING in the file being given out by LE.


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[chinacat67]

Thanks ChinaCat67 for the info! MEOW!

I think with Dina's wealth and resources such as expensive legal advice, she would have already acquired all the Zahau files via the FOIA and whatever else necessary. And she would have used whatever sordid info she could garner from those files to publicly indict Becky and her family even more than what she has done -- if there were anything "sensitive" or "sordid" contained in them. So I get the feeling that the Zahau case files are either not "open" to the public or there's nothing sensitive in them.

But then, if Dina could have gotten hold of the Zahau files, then surely that'd mean they are open to the public through the FOIA as well.

I am with you in your questioning of why the Zahau family and their attorney hasn't chosen to release the files to the public. One reason I can see is that they want to hold crucial evidence close to their vest as LE often does in their investigations because the Zahaus don't want to give anything up to the murderer(s) should Becky's case be reopened.

Ahhh....shows again the cleverness of the LE letter and the way they manipulated the Open Records law to their best advantage---because LE was giving the file "to the victim of the incident" ONLY, and therefore nobody else can have it, LE are managing yet another potential source of trouble---Dina.

I can totally believe she and/or her attorneys will/could/are/may be going after the file, but I would be shocked if they had it already---I honestly can't imagine she'd contain herself. IMVHO, she is barely holding on to herself as it is---her grief is profound and it is making her rage equally profound. Again, most definitely, MOO!!

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[bourne]

Ahhh....shows again the cleverness of the LE letter and the way they manipulated the Open Records law to their best advantage---because LE was giving the file "to the victim of the incident" ONLY, and therefore nobody else can have it, LE are managing yet another potential source of trouble---Dina.

I can totally believe she and/or her attorneys will/could/are/may be going after the file, but I would be shocked if they had it already---I honestly can't imagine she'd contain herself. IMVHO, she is barely holding on to herself as it is---her grief is profound and it is making her rage equally profound. Again, most definitely, MOO!!

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Glad to see you again, ChinaCat! :cat: Yep, very clever the SDLE with their letter!

My Q is: Who is considered the "victim of the incident" in Becky's death? Her significant other, Jonah? Her family/kin?

Also, why do you suppose the SDLE hasn't returned Becky's possessions such as her cellphone and computer to her family? Isn't LE required to do so by law?

 

[bourne]

Was LE threatening the family with disclosure? Absolutely! But I don't think, anymore, that was the ONLY thing LE was saying or that it was said 100% to protect LE from what was in the file.

I will try to upload the letter tomorrow--but after reading the California Open Records laws, I believe it says essentially this, in legalese:


---Under California law, we [LE] do not have to give you [Anne Bremer/the family] this investigatory file. And, in fact, in general, normally if we give someone this type of file, we typically have to then, under that same law, give that file to anyone else who asks us for it.

But, we believe that you will agree that letting anyone else have the file would be a bad thing [for whatever reason]. Since we both agree that would be a bad idea, we are going to try to circumvent that problem by making up a really specific and narrow rule, based on a single clause in this law, taken out of context, as our reason to give you this information.

Again, since you, Anne, don't want to release the whole file either [for whatever reason], let's agree on this sort of made-up reason that keeps the file between just you and us. If we are going to use this rule and make it work, it has to be this way, okay?

Be warned, though, that if you release some parts of the file while not all of the file, we are going to stop this made-up situation and go back to the regular rule, which is anyone can have the whole file.-------


Under California open records law (their equivalent of FOIA) the general rule is that the government files in California are open to anyone.

BUT there is a handful of absolute exemptions or exceptions that keeps certain government records closed to the public. Law enforcement files are one of those exemptions.

The rule, then, is California records are open. The exception/exemption to the rule is that California LE records are not open.

The exception to the exception (yes, this is how the law works! lol!) is if LE chooses to give out its records, it can't pick and choose who gets the file. LE doesn't have to give out files, but if they "waive" their exception/exemption, and do give it out, then the file gets kicked over into the general rule---that it is open to anyone.

Long law short---Rule=California records open. Exception=Cal. LE records closed. Exception to Exception=if LE gives out a file to anyone it becomes open to everyone.

It is actually quite clever of LE's counsel---not only do they prevent public access to the file, they "blackmail" the family into not disclosing ANYTHING in the file for fear of EVERYTHING in the file being given out by LE.


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Clarification please. I want to make sure I'm understanding this correctly.

LE is required by law to give the victim's files to the victim, which includes the family and significant other, yes?

So why would LE imply in the letter that they're NOT required to give the files to Anne Bremner, who was a lawyer representing the family of victim Becky?

Additionally, are you saying that if LE gives the investigative files to the victim/kin/significant other, then they are required, by law, to also allow the public access to the files because of FOIA?

I had always assume that investigative files of closed cases are private and disclosed only to the kin of the victim alone. But it appears you're saying that the FOIA stipulates that once the investigative files are turned over to kin or their legal representative, then the public is also allowed access to the files?

I understand the part about the piecemeal disclosure stipulations made by LE to Anne Bremner, but not the part about the handing over of Becky's files by LE to AB and how that affects FOIA and public access to files.

TIA

 

[bourne]

Well, you always have to be careful taking things from websites, but I don't disagree with this guy for the most part. For example, if Dina had said, "in my opinion, based on the scientific evidence I have collected, I think I have proof that XZ killed Max," that would be a closer call for sure. Here, she did NOT say that her scientific proof showed ANYTHING about who the perp was. She said she had proof that he had been killed. She said her opinion about who did it was just based on the fact that it must have been someone in the house--nothing more. So IMO she hasn't crossed the line.

Sounds like "toplawfirm" would take the case, though.

I agree. I checked as best as I could the legitimacy of this particular legal website before I cited them

The lawyer actually made it simpler than that. He says "in my opinion, he cheats on his taxes" is a defamatory statement since it is the assertion of a fact, even though it is called an opinion." Essentially he's saying that a statement such as "In my opinion such and such persons killed Max" is a defamatory statement since it is the assertion of a verifiable fact, if the verifiable fact is found to be untrue.

Perhaps this law firm can take the Zahaus' defamatory case, if the Zahaus decide to go forward.

 

[bourne]

According to the AZ State Bar, it's an ethics violation to say you are in any "specialty" unless it's one of the handful of "specialties" they offer for money lol. So...my first legal job was working on death penalty cases. My second one was mostly mining law and contracts. Then I worked for an AZ Supreme Court judge--about 1/2 criminal and 1/2 civil with a large helping of death penalty on the criminal side. Then bankruptcy and civil litigation. Then mostly employment law. Currently heavy on civil litigation, some health care law and probate, and appeals in every area I can get (civil, criminal, divorce, probate). A little bankruptcy still, and a personal injury or medical malpractice case here and there. Defamation and wrongful death are both civil litigation, and I have handled both types of cases recently.

To respond to your post...

Intent is definitely an element of murder everywhere. Motive is definitely not an element of murder anywhere in the US.

Opportunity and means are not elements of murder, but I agree it's pretty tough to convince a jury that a person killed someone without proving opportunity and means.

I agreed with you about the elements of wrongful death. I'm not completely familiar with the evidence here, but from what you've said it sounds like they might have the start of a case. Most likely they could keep it in court long enough to compel additional evidence from the possible perps to see if they might make an even stronger case.

Cool re: your practice areas.

I meant "motive", not "intent". lol Disclaimer: I'm not a lawyer, nor do I play one on t.v. :blushing:

I think it'd be great if we can get more evidence to analyze. Hopefully if and when there's a wrongful death suit, that that'd happen.

I have to read up on FOIA in CA.

 

[chinacat67]

1. No, there would be no major issues. Someone would have to be appointed to represent her interests--probably a parent.

2. I didn't mention any FOIA waiver exemption, but I think another lawyer did. I haven't researched that issue. That said, if the release to RZ's family was supposedly based upon an exemption for victims only, I could see that the same exemption might apply to Jonah. He is a victim of RZ's death--it was his girlfriend that was killed, in his home. So I don't think a release to him would mean that everyone in the world is now entitled to the file.

That was me---and I agree with AZ as far as Jonah is concerned---but if he got it, he would have gotten it with the same admonition as RZ's family got that he cannot release to anyone else. I can't imagine anyone would consider Dina to legally be the victim of that crime so if she has it from him, he's done exactly what the Zahau's were cautioned not to do---and LE told us in their letter what the consequence is---that ANYONE can get the file.

If Dina has it from anyone other than LE then LE's letter threat comes into play and every member of the public is entitled to it.

If Dina has it from LE then LE has given it to a general public member and thus ANY member of the general public is entitled to it.

In other words, if Dina has it from anybody, then everyone must be allowed access to that file.

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[K_Z]

,I can totally believe she and/or her attorneys will/could/are/may be going after the file, but I would be shocked if they had it already---I honestly can't imagine she'd contain herself. IMVHO, she is barely holding on to herself as it is---her grief is profound and it is making her rage equally profound. Again, most definitely, MOO!!

BBM
I agree. IMO, Dina is imploding emotionally and psychologically. The KTAR interview was profoundly disturbing to watch, especially to those of us who have followed these cases from the beginning. She is a twisted cariacture of the person she was 6-8 months ago. She appears to have aged 15+ years in just a few months. And IMO, she appears physically ill, in addition to her emotional and psychological vendetta. IMO, she is in need of professional care.

Her attorneys and socialite friends, who I believe have compassion for her for the tragic loss of her son (and the loss of her lifestyle with Jonah), have become (maybe unwittingly), her enablers. This train wreck, IMO, will continue until the enablers (who she trusts) decide to either distance themselves, or they persuade her to get serious professional help and focus on healing, instead of rage and revenge.

The "cat and mouse" verbal games Dina is currently playing with the media and the Zahau family are just another facet of the delusions she pursues with her attorneys and friend- enablers. It would be just so disturbing and sad, were it not for all of the very sincere and valid questions about her knowledge about how Becky died.

 

[chinacat67]

Glad to see you again, ChinaCat! :cat: Yep, very clever the SDLE with their letter!

My Q is: Who is considered the "victim of the incident" in Becky's death? Her significant other, Jonah? Her family/kin?

Also, why do you suppose the SDLE hasn't returned Becky's possessions such as her cellphone and computer to her family? Isn't LE required to do so by law?

Thanks---this case is so bizarre, intriguing and sad---it is hard not to get sucked in!

As mentioned, there is no legal definition of who is a victim....

I've wondered about that too with her possessions---I don't know their legal obligation on it since they have declared it closed....I am just not (yet) familiar with those laws.

Do we know for absolute fact they haven't returned these things? Last I heard, I guess was that the phone couldn't be hacked, as it were (which seems ridiculous--it seems like they could take it to any local high school and within 10 minutes they would have absolutely everything on there and that was ever on there). But that was months ago---do we know they haven't returned it since then and it just wasn't publicized? Anne rarely mentions this case on FB--for the last 18 months it has been all Amanda Knox and Susan Powell and a few others.

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[*Lash*]

Thanks---this case is so bizarre, intriguing and sad---it is hard not to get sucked in!

As mentioned, there is no legal definition of who is a victim....

I've wondered about that too with her possessions---I don't know their legal obligation on it since they have declared it closed....I am just not (yet) familiar with those laws.

Do we know for absolute fact they haven't returned these things? Last I heard, I guess was that the phone couldn't be hacked, as it were (which seems ridiculous--it seems like they could take it to any local high school and within 10 minutes they would have absolutely everything on there and that was ever on there). But that was months ago---do we know they haven't returned it since then and it just wasn't publicized? Anne rarely mentions this case on FB--for the last 18 months it has been all Amanda Knox and Susan Powell and a few others.

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SDSO still had some of RZ's personal belongings on the 1 year anniversary of her death-

Posted: Jul 14, 2012

Rudoy told News 8 that the San Diego County Sheriff still has not returned some of Zahau's personal belongs to the family, like her camera, computer or cell phone. He said the Sheriff did make the cell phone available for an independent forensic inspection by an expert hired by the family. That forensic report still is not complete, Rudoy said.

http://www.cbs8.com/story/19024331/coronado

 

[time]

Can one of our legal experts chime in on the limitations Ann Bremner faced in this case since she is not licensed in California to practice here.

Can someone who might know talk about Rudoy's past and current role in the case.

 

[chinacat67]

Take two....
___________________
Clarification please. I want to make sure I'm understanding this correctly.

LE is required by law to give the victim's files to the victim, which includes the family and significant other, yes?

LE is required by law to give certain information in their files to the "victims of the incident" . Victims of the incident is not defined under that law, so there is no positive answer as to who is included.

So why would LE imply in the letter that they're NOT required to give the files to Anne Bremner, who was a lawyer representing the family of victim Becky?

----They are implying they are not required to give the entire file to the family. The law says they have to give certain pieces of information to the victims of the incident. So, that is just pieces of information, not the entire file. and, as mentioned above, there is no definition of victim of the incident---couldn't you easily argue that only the actual person injured in some way is the victim? That was actually the intent of the CA legislature when making the law....that victims, their insurance agents and lawyers could get their police reports for lawsuit purposes and insurance payouts.

Additionally, are you saying that if LE gives the investigative files to the victim/kin/significant other, then they are required, by law, to also allow the public access to the files because of FOIA?

-----No, I'm saying that the LE didn't have to release the file to them, or to anyone. The law protects their files from disclosure.

BUT, LE has to give certain information from the files to certain individuals--as per above. The victims are entitled only to certain information from the file. The general public is not entitled to any information from the file.

BUT (again) if LE decides, for whatever reason, to give all the file, all of the information, to a member of the general public--they can't pick and choose who gets it. If one member of the general public gets it, any member of the public can get it.

SO (and this is where we get into my theory) if ALL the stuff in the file was given out to the victim, which is much more than just the certain info required to be given to the family---hasn't LE given all that additional information to a member of the public?

In other words---LE had to give the victim, but only the victim, 2 out of 5 pieces of the pie. But LE gave the victim all 5 pieces. I think the law in CA says that other 3 pieces, the ones they didn't have to give away, but that they chose to give away, must be made available to anyone, not just the victim.


I had always assume that investigative files of closed cases are private and disclosed only to the kin of the victim alone. But it appears you're saying that the FOIA stipulates that once the investigative files are turned over to kin or their legal representative, then the public is also allowed access to the files?

-----FOIA is the federal law and the state laws like it are typically called Right To Know laws or Sunshine laws or Open Records laws. In California, the FOIA equivalent is known as the Open Records law.

FOIA or state laws don't time it to the family typically---what I was saying is that the kin are entitled to some information regardless of anything else. The general public is not entitled to anything generally in California.

In some respects the federal and state laws run the same---the rule is that government records are open to any citizen of the state or country to inspect. Under each state and the federal law there are certain exceptions that say certain things are not open to the public and stay closed. Those exceptions---what stays closed from the public--varies from the federal level and among state to state.

So, in my state and under FOIA, only certain types of LE files are exempt from being viewed by anyone---ie it is a current ongoing investigation that might be compromised etc. But, yes, in my state, I can request the LE file for any closed case and essentially LE has to give it to me. Same with federal cases.


You can go to the FBI Reading Room and they have an entire library of the most requested and most popular law enforcement files that they've just gone ahead and put up there for anyone to read without even asking under FOIA because they were spending so much time processing those requests for well-known LE cases---ie John Dillinger or John Lennon or the Rosenbergs or Charles Manson or assassinations of JFK and Martin Luther King Jr etc etc.

The police file in this case is no different in essence from any of those files. Under federal law it would be open. Under the law of my state it would be open (because LE has declared the case closed and unless it is open, I can get it). But in California it doesn't go that way as per all above.



I understand the part about the piecemeal disclosure stipulations made by LE to Anne Bremner, but not the part about the handing over of Becky's files by LE to AB and how that affects FOIA and public access to files.

-----Hopefully the above helps??

TIA

 

[chinacat67]

Well that didn't work well....my tablet app didn't let me bold...will try to re-do that set of answers to make more legible sometime today...after work stops interfering

Apologies for hogging the last several posts and blowing up the thread with long ones!

BTW, I love the name of this thread as my DH is pretty sure that curiosity is gonna kill this cat someday

 

[bourne]

Apologies for hogging the last several posts and blowing up the thread with long ones!

BTW, I love the name of this thread as my DH is pretty sure that curiosity is gonna kill this cat someday

Thanks! I thought the title I gave was cute too.

Oh, curious cats such as yourself need not worry. Cats have nine lives!

 

[chinacat67]

Can one of our legal experts chime in on the limitations Ann Bremner faced in this case since she is not licensed in California to practice here.

Can someone who might know talk about Rudoy's past and current role in the case.

Nothing overly substantial vis a vis her limitations. You can get "temporarily" admitted for a specific case in almost any state---pro hac vice is the legal term and, additionally, most out-of-state counsel hires local counsel and works with them to make sure have everything straight (and to help with the filings). When I was actively practicing we would serve as local counsel for NY attorneys all the time. They run the case, they are "attorneys of record" and we help them with local law and filing things and appearances when needed. Not unusual at all.

I'm thinking, as such, that Rudoy is exactly that---local counsel. Usually they are not overly vocal or overly visible though, so not entirely sure....

 

[bourne]

Take two....
___________________
Clarification please. I want to make sure I'm understanding this correctly.

LE is required by law to give the victim's files to the victim, which includes the family and significant other, yes?

LE is required by law to give certain information in their files to the "victims of the incident" . Victims of the incident is not defined under that law, so there is no positive answer as to who is included.

So why would LE imply in the letter that they're NOT required to give the files to Anne Bremner, who was a lawyer representing the family of victim Becky?

----They are implying they are not required to give the entire file to the family. The law says they have to give certain pieces of information to the victims of the incident. So, that is just pieces of information, not the entire file. and, as mentioned above, there is no definition of victim of the incident---couldn't you easily argue that only the actual person injured in some way is the victim? That was actually the intent of the CA legislature when making the law....that victims, their insurance agents and lawyers could get their police reports for lawsuit purposes and insurance payouts.

Additionally, are you saying that if LE gives the investigative files to the victim/kin/significant other, then they are required, by law, to also allow the public access to the files because of FOIA?

-----No, I'm saying that the LE didn't have to release the file to them, or to anyone. The law protects their files from disclosure.

BUT, LE has to give certain information from the files to certain individuals--as per above. The victims are entitled only to certain information from the file. The general public is not entitled to any information from the file.

BUT (again) if LE decides, for whatever reason, to give all the file, all of the information, to a member of the general public--they can't pick and choose who gets it. If one member of the general public gets it, any member of the public can get it.

SO (and this is where we get into my theory) if ALL the stuff in the file was given out to the victim, which is much more than just the certain info required to be given to the family---hasn't LE given all that additional information to a member of the public?

In other words---LE had to give the victim, but only the victim, 2 out of 5 pieces of the pie. But LE gave the victim all 5 pieces. I think the law in CA says that other 3 pieces, the ones they didn't have to give away, but that they chose to give away, must be made available to anyone, not just the victim.


I had always assume that investigative files of closed cases are private and disclosed only to the kin of the victim alone. But it appears you're saying that the FOIA stipulates that once the investigative files are turned over to kin or their legal representative, then the public is also allowed access to the files?

-----FOIA is the federal law and the state laws like it are typically called Right To Know laws or Sunshine laws or Open Records laws. In California, the FOIA equivalent is known as the Open Records law.

FOIA or state laws don't time it to the family typically---what I was saying is that the kin are entitled to some information regardless of anything else. The general public is not entitled to anything generally in California.

In some respects the federal and state laws run the same---the rule is that government records are open to any citizen of the state or country to inspect. Under each state and the federal law there are certain exceptions that say certain things are not open to the public and stay closed. Those exceptions---what stays closed from the public--varies from the federal level and among state to state.

So, in my state and under FOIA, only certain types of LE files are exempt from being viewed by anyone---ie it is a current ongoing investigation that might be compromised etc. But, yes, in my state, I can request the LE file for any closed case and essentially LE has to give it to me. Same with federal cases.


You can go to the FBI Reading Room and they have an entire library of the most requested and most popular law enforcement files that they've just gone ahead and put up there for anyone to read without even asking under FOIA because they were spending so much time processing those requests for well-known LE cases---ie John Dillinger or John Lennon or the Rosenbergs or Charles Manson or assassinations of JFK and Martin Luther King Jr etc etc.

The police file in this case is no different in essence from any of those files. Under federal law it would be open. Under the law of my state it would be open (because LE has declared the case closed and unless it is open, I can get it). But in California it doesn't go that way as per all above.



I understand the part about the piecemeal disclosure stipulations made by LE to Anne Bremner, but not the part about the handing over of Becky's files by LE to AB and how that affects FOIA and public access to files.

-----Hopefully the above helps??

TIA

Thanks ChinaCat! Ok, I'll summarize my understanding of your legal points:

1) By law, LE is only permitted to provide the "victim" of the crime SPECIFIC PORTIONS in the investigative files after a case is closed. LE is not mandated to give the ENTIRE case file to the victim.

2) The term "victim" is ambiguous, but presumably if the victim is deceased, then their next-of kin -- significant other, and immediate family members -- qualify as "victim" and would receive the specific items in the closed case files.

3) In this case, the deceased victim is Becky. Her next-of-kin to receive the specific items in Becky's closed case file would be her significant other (Jonah), and her immediate family members (Zahaus).

Corollary: If Dina has Becky's closed case file, then the public is also entitled to the entire case file because Dina is not the next-of-kin to victim Becky and this would mean that presumably someone other than LE -- either Jonah or the Zahaus -- provided Dina with Becky's file. This would mean that the next-of-kin to Becky waived the rights to keep the case files closed to the public, and via FOIA, the public has a right to access the closed case files. (This, I assume is what you had called "the waiver exemption").

4) LE wrote a letter to the Zahaus (and their attorney Anne Bremner) stating that:

a) LE had given the Zahaus the ENTIRE investigative file on Becky even though they were only required by law to give PARTS of the file. In other words, LE made an "exception/exemption" to the Zahaus by giving them the ENTIRE case file and despite the fact that by providing the Zahaus with the ENTIRE case file, LE could legally then disclose all the contents in the Becky case file to the public via FOIA, LE chooses not to allow public access to the Becky file. Hence, LE was implying that they went above and beyond what they were required to do by law, that they did the Zahaus a "special favor", and so the Zahaus and their attorney should reciprocate in similar fashion by maintaining the confidentiality of the files;

b) If the Zahaus/legal representative discloses "piecemeal" -- in bits and pieces -- of info from Becky's case file to the public that puts LE in a "bad light", then LE will disclose ALL the info in the ENTIRE Becky case file to the public. (This is LE's "threat"). LE is asserting that if the Zahaus disclose info from the case file piecemeal, the Zahaus are "waiving the exemption" to keep close the case files to the public, and LE will then be forced to provide the public with the ENTIRE Becky file.

Corollary: In this "threat", LE is implying there is something super-sensitive and embarrassing in Becky's case file that the Zahau family may not want disclosed to the public. (Whether this is true or not, no one knows, but thus far, this threat has kept the Zahaus and their lawyer from disclosing any of the info from Becky's file to the public).

 

[chinacat67]

Thanks ChinaCat! Ok, I'll summarize my understanding of your legal points:....

Pretty much spot on!

Clear as mud now, right? :floorlaugh:

Bringing it back around to the beginning---I imagine we all agree that file would be hugely interesting to review. It could help answer sooooo many questions.

The problem is, it would be a total time suck and super frustrating to put in a request and I don't have the time now to devote to it, but I'd love it if somebody else did.

It would be a time suck and frustrating because this is how it would go:

1. Write asking Sheriff for file.
2. Sheriff's Office says no
3. Have to appeal to next administrative level
4. That office will say no
5. Only then can file first action in court to argue they are wrong in their holding back for all the reasons we've been tossing around.

That is not a short amount of time and is a large level of bureaucratic stonewalling and hassle (can you tell I've done this before?)

Maybe Dina is reading here and can get her lawyers on it....

 

[chinacat67]

Great post Serpico!
I have a question for chinacat or any others - Do we know for sure that Bremner got the entire LE file on this case?

I appears Dina did not get the file, but Jonah may have. Could he have done that and given Dina bits and pieces? I'm wondering because of all the strange comments Dina and others who support her have made.
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The letter from Sheriff Gore (which I forgot to upload and is now attached) definitely says the entire file.

Jonah may have the file and/or may have given her some or all of the entire file, but honestly he seems to me to want to be as far away from all of this, and particularly Dina, as he possibly can, so why would he ask for the file in the first place and/or then give it to Dina. I mean they can't even be civil enough to have one foundation for Max, let alone endorse the other's.

Just seems on a practical level, Jonah wrote that initial letter about an investigation, knowing what the response would be, so that everyone would get off his back. And since then he has stayed as far away as possible, I think.

Finally, in looking at that letter just now I realize I've been calling her Anne Bremer and her name is Anne Bremner. My apologies!