Holly Bobo found deceased, discussion thread *Arrests* #6

[Tugela]

Sorry, but those articles don't say that at all. They pertain to investigative evidence being made available to the general public (such as FOI requests). Not to defendants in a trial.

There is no legal way for the TBI to withhold ANY perhaps-relevant evidence from defendants on trial, and to do so would cause convictions in TN to be overturned right and left. Such a practice would be a fundamental violation of defendant rights as defined in the US.

The TBI are investigators, they are not officers of the court. Prosecutors have an obligation to provide discovery of all information known to them, but the investigators do not. What can't happen under law is the information only being provided to one side and not the other. Also, when specific information is requested, they have to provide it, they can't conceal it.

But, if the prosecution doesn't ask for it, and they don't provide it by tacit understanding, then that bit of information would not be available for discovery. If LE is unbiased and does a professional job, then that sort of thing will not happen - they hand over everything they have and let the prosecutor decide. But, if they are partisan and see themselves as a proactive tool to obtain convictions without regard for justice (in other words, corrupt) then these sorts of things can and do happen. On small scales it might be in the form of an individual officer "forgetting" or "losing" information and/or evidence that is inconvenient to their theory. On more institutionalised scales the practice could be endemic in an agency and their practice the point that it becomes just the way they do business.

 

[Tugela]

I beg to differ somewhat, if there is evidence in a current trial on a federal level, involving any of the defendents or ? The feds take precidence. If it were that.

You misunderstand....Federal charges only take precedence when it is a convenient excuse to drop local charges that might prove embarrassing if actually taken to trial

 

[SteveS]

The TBI are investigators, they are not officers of the court. Prosecutors have an obligation to provide discovery of all information known to them, but the investigators do not. What can't happen under law is the information only being provided to one side and not the other. Also, when specific information is requested, they have to provide it, they can't conceal it.

Respectfully, that's neither the operative principle, nor how the process works.

It's the "state" that brings criminal charges, not "officers of the court." The law doesn't make a left-pocket right-pocket distinction where it matters who - as part of the state - obtained and has the evidence. TBI is part of the state apparatus, and accordingly, they would be fully obligated to turn over all relevant evidence to the defendant that they might have.

As a matter of practicality, the prosecutors in the case are the ones tasked with gathering that evidence from TBI, to then forward it to the defense. But neither TBI nor the prosecutor would be legally permitted to cherry-pick that evidence to be disclosed.

But, if the prosecution doesn't ask for it, and they don't provide it by tacit understanding, then that bit of information would not be available for discovery. If LE is unbiased and does a professional job, then that sort of thing will not happen - they hand over everything they have and let the prosecutor decide. But, if they are partisan and see themselves as a proactive tool to obtain convictions without regard for justice (in other words, corrupt) then these sorts of things can and do happen. On small scales it might be in the form of an individual officer "forgetting" or "losing" information and/or evidence that is inconvenient to their theory. On more institutionalised scales the practice could be endemic in an agency and their practice the point that it becomes just the way they do business.

If you are saying that LE might illegally try to hide exculpatory evidence, that's true, of course. But the idea that it's legal to do so, is not true at all, and any case in which that would happened would be dismissed or overturned on 6th Amendment grounds.

I would also note that the allegation was that this is what is happening with TBI, and supposedly was being shown in an article. But the article didn't say any such thing at all. So there's that.

 

[pearl]

Basic US Constitution classes teach that "federal" trumps "state" in our federal system of government. When there is a conflict, federal comes out on top.

http://www.usconstitution.net/consttop_fedr.html
The first, dual federalism, holds that the federal government and the state governments are co-equals, each sovereign. In this theory, parts of the Constitution are interpreted very narrowly, such as the 10th Amendment, the Supremacy Clause, the Necessary and Proper Clause, and the Commerce Clause. In this narrow interpretation, the federal government has jurisdiction only if the Constitution clearly grants such. In this case, there is a very large group of powers belonging to the states, and the federal government is limited to only those powers explicitly listed in the Constitution.
The second, cooperative federalism, asserts that the national government is supreme over the states, and the 10th Amendment, the Supremacy Clause, the Necessary and Proper Clause, and the Commerce Clause have entirely different meaning. A good illustration of the wide interpretation of these parts of the Constitution is exemplified by the Necessary and Proper Clause's other common name: the Elastic Clause.
Dual federalism is not completely dead, but for the most part, the United States' branches of government operate under the presumption of a cooperative federalism. The shift from dual to cooperative was a slow one, but it was steady.

 

[Chainsaw385]

Some times you will see a defendant face both Federal and State charges during the act of a crime.

pearl is right ......the Federal charges take precedence
Sometimes the Fed's will defer and let the State prosecute their case first

Michael Vick had already plead guilty to Federal charges when he was indicted on State charges for his dog fighting ring.
This is called the Dual Sovereignty Doctrine is an exception to the Double Jeopardy Clause

 

[SteveS]

I'm still not seeing how the "federal" distinctions being made (while generally interesting in regards to constitutional and legal theory) are relevant to this case, or to the issue of whether TBI can legally hide exculpatory evidence from the defense, as was being claimed.

 

[pearl]

This has probably been going on for a long time state wide, where prosecutors are required to hand over discovery, but only the stuff they actually have. The TBI has no such obligation, so they could do the nudge nudge wink wink routine, and supply the state prosecutors with what they need to get a conviction, but keep all the other stuff back so that it isn't subject to discovery which might compromise the chances of a conviction. That would be a very handy tactic in giving prosecutors a big advantage in any trial, and it would work provided that the prosecutors play along with the game. They would get to convict people while limiting the possibility that the defense could defend against an allegation. Star chamber stuff, back room arrangements rigging the game. When Stowe came along this was how things were being done I think, and either didn't know he was supposed to play the game or felt morally opposed to it. So he had a big fight with them, and therefore he had to go to ensure that the "system" was not compromised. The new prosecutor knows how the game is played I think, but she still has to deal with the fallout, so her tactics will be deny/stall/deny/stall etc etc until maybe a Hail Mary happens.

That is my conspiracy theory for the day anyway

snipped and bbm

If TBI withheld any evidence, exculpatory or otherwise, they would be violating the US Constitution giving a defendant the right to confront their accusers. TBI is not above the law. A state government agency cannot operate in direction violation of the US Constitution. However secretive they may be, their directives are written in compliance with the US Constitution or the justice department would have shut them down long ago.

 

[tlcya]

Can anyone find specifics on what TBI must or must not turn over to prosecution on cases intended but not yet being tried? Just curious if it is set in some stone somewhere or open to interpretation? TIA

 

[murphy3k]

This isn't specific to Tennessee, but it's a memo prepared for federal prosecutors titled "Guidance for Prosecutors Regarding Criminal Discovery." Interesting reading even outside this discussion. I would think it's a pretty safe bet that Tennessee's standards would be the same or similar to this. MOO.

Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.

http://www.justice.gov/dag/memorandum-department-prosecutors

 

[pearl]

I brought in the US Constitution stuff because someone upthread posted that federal prosecution took precedence over state prosecution, and other posters disagreed. To each his/her own opinion. But, it is fact, the Justice Department of the US could decide to press whatever case they have with ZA, DA, or JA, and the state would have to wait until the feds were through. Murder is a state crime not a federal crime. Feds would not prosecute anyone for Holly's murder. What they can do is challenge the trial court about violating the defendant's civil rights in not insuring a speedy trial which is a constitution given.

 

[SteveS]

Can anyone find specifics on what TBI must or must not turn over to prosecution on cases intended but not yet being tried? Just curious if it is set in some stone somewhere or open to interpretation? TIA

Hard to reply to this, because it's unclear what you mean.

1 What is "intended but not yet being tried"? A crime being investigated?
2 Your question implies a distinction between TBI and "the prosecution" and in truth, they are partners. So the rules between them would tend to be self-imposed, arbitrary, procedural, adjustable as needed, and cooperative, but not legal mandates.

 

[Chainsaw385]

This has probably been going on for a long time state wide, where prosecutors are required to hand over discovery, but only the stuff they actually have. The TBI has no such obligation, so they could do the nudge nudge wink wink routine, and supply the state prosecutors with what they need to get a conviction, but keep all the other stuff back so that it isn't subject to discovery which might compromise the chances of a conviction. That would be a very handy tactic in giving prosecutors a big advantage in any trial, and it would work provided that the prosecutors play along with the game. They would get to convict people while limiting the possibility that the defense could defend against an allegation. Star chamber stuff, back room arrangements rigging the game. When Stowe came along this was how things were being done I think, and either didn't know he was supposed to play the game or felt morally opposed to it. So he had a big fight with them, and therefore he had to go to ensure that the "system" was not compromised. The new prosecutor knows how the game is played I think, but she still has to deal with the fallout, so her tactics will be deny/stall/deny/stall etc etc until maybe a Hail Mary happens.

If I understand this correctly.You are saying the TBI is not releasing evidence to the prosecution for the sole purpose that it doesn't get into the defense's hands to early.

The risks of not disclosing all evidence of guilt ASAP to the person prosecuting the case would be way to many to list....I can not think of a single instance how this would be favorable to gain a conviction.

After the discovery phase is complete the defense will often file and be granted a motion for a delay to study the evidence....so it would be silly to hold it back anyhow.It gets much harder for the prosecution to have evidence introduced in a trial after the discovery phase.

They can't come walking into court half way thru the trial and say "Oh,Yea we forgot we have a videotape of the crime"....they can get evidence introduced but they better have a darn good reason why it was not included in the earlier discovery.

Sadly evidence of innocence gets suppressed at investigative and prosecution levels sometimes.....either this or false identification/testimony by a witness is the leading causes of an innocent person getting convicted.

So it does happen but I don't know of a single case where it was done to try and help the prosecution.

I know someone will say they have clear evidence they are innocent and are holding it back to keep these guys in jail and won't release it until they absolutely have to.......if this is the case the State of Tenn. is going to owe these guys a bunch of money.

Their evidence may be weak but it is strong enough to go to trial ....no one public will know what exactly they have until then.

 

[Dr. Know?]

Been reading a lot of TN & US laws. (dangerous actually j/k)

Not sure about what's going on in this court, yet. Just throwing out ideas. It doesn't sound like everyone is getting along though.

jmo

 

[Bali]

Yeah, I've never heard of a case either where evidence of guilt was suppressed to gain some advantage. The prosecution may lie and say they have more than they do to trick people into rolling over on each other or they may hide exculpatory evidence. But prior to this, I've never heard of a case where the prosecution was withholding inculpatory evidence. I can't think of a single reason for this aside from, they don't have it and are hoping they can pull a miracle out of their hat if they stall long enough.

 

[dog.gone.cute]

Here's a Tweet just in from Jen @The Trial Diaries:

FYI: Jen was a Courtroom Tweeter in the Jodi Arias Trial and 2nd re-trial of the Sentencing Phase:


Jen's Trial Diaries ‏@TrialDiariesJ · 6m6 minutes ago

Special prosecutor in #HollyBobo case responds to defense’s motion

http://thetrialdiaries.com/special-prosecutor-in-holly-bobo-case-responds-to-defenses-motion/ … #TheTrialDiaries


NOTE: Sorry IF this has already been posted.

I have not caught up yet because the SideShow and Circus is still ongoing in the Jodi Arias case while we await for Sentencing.

Anyway ... Jen is on the Twitter Feed I follow, and she has made a few recent tweets regarding Holly's case.

 

[Tugela]

Respectfully, that's neither the operative principle, nor how the process works.

It's the "state" that brings criminal charges, not "officers of the court." The law doesn't make a left-pocket right-pocket distinction where it matters who - as part of the state - obtained and has the evidence. TBI is part of the state apparatus, and accordingly, they would be fully obligated to turn over all relevant evidence to the defendant that they might have.

As a matter of practicality, the prosecutors in the case are the ones tasked with gathering that evidence from TBI, to then forward it to the defense. But neither TBI nor the prosecutor would be legally permitted to cherry-pick that evidence to be disclosed.



If you are saying that LE might illegally try to hide exculpatory evidence, that's true, of course. But the idea that it's legal to do so, is not true at all, and any case in which that would happened would be dismissed or overturned on 6th Amendment grounds.

I would also note that the allegation was that this is what is happening with TBI, and supposedly was being shown in an article. But the article didn't say any such thing at all. So there's that.

Responsibility for obtaining and supplying discovery rests with the prosecutors, not the investigators. If the investigators don't cooperate then presumably the prosecutors could get a court order to force them to, but supplying discovery is not an obligation for the investigators. The prosecutors have an obligation to exercise due diligence to ensure that all discoverable materials are available. Essentially any information made available to them can't be concealed, but if the investigators don't inform them of the existence of relevant information then they will not be in a position to turn it over as discovery.

Also, the jurisdictional investigative agency is the local sheriffs department, not the TBI. The TBI provide support and act as a secondary agency as far as the investigation is concerned (even though they are apparently driving everything). They help out but have no obligations at all, and can cooperate or not as they see fit. Normally the jurisdictional investigative agency acts as the investigative arm of the prosecution, but other agencies may also be involved in the investigation or analysis of evidence - the prosecutor has no power over the secondary agencies however. Those secondary agencies do not have the same responsibilities as the primary agency. This is the gaming of the system that is going on, the TBI is effectively running the investigation and control the information flow, but they don't have the same obligations as the primary agency normally would, so, if the prosecutors play along, they can play the plausible deniability game to limit the information that the defense gets access to.

Combine that with the secrecy that the TBI operates under (so it is difficult for undeclared information to be found out), and it would be very easy for them to manipulate the outcome of a case through control of information.

 

[Tugela]

snipped and bbm

If TBI withheld any evidence, exculpatory or otherwise, they would be violating the US Constitution giving a defendant the right to confront their accusers. TBI is not above the law. A state government agency cannot operate in direction violation of the US Constitution. However secretive they may be, their directives are written in compliance with the US Constitution or the justice department would have shut them down long ago.

The local Sheriffs department are the responsible investigators, not the TBI. The TBI is just providing assistance and technical expertise. Effectively they are outside the orbit of normal discovery obligations as a result.

 

[Tugela]

If I understand this correctly.You are saying the TBI is not releasing evidence to the prosecution for the sole purpose that it doesn't get into the defense's hands to early.

The risks of not disclosing all evidence of guilt ASAP to the person prosecuting the case would be way to many to list....I can not think of a single instance how this would be favorable to gain a conviction.

After the discovery phase is complete the defense will often file and be granted a motion for a delay to study the evidence....so it would be silly to hold it back anyhow.It gets much harder for the prosecution to have evidence introduced in a trial after the discovery phase.

They can't come walking into court half way thru the trial and say "Oh,Yea we forgot we have a videotape of the crime"....they can get evidence introduced but they better have a darn good reason why it was not included in the earlier discovery.

Sadly evidence of innocence gets suppressed at investigative and prosecution levels sometimes.....either this or false identification/testimony by a witness is the leading causes of an innocent person getting convicted.

So it does happen but I don't know of a single case where it was done to try and help the prosecution.

I know someone will say they have clear evidence they are innocent and are holding it back to keep these guys in jail and won't release it until they absolutely have to.......if this is the case the State of Tenn. is going to owe these guys a bunch of money.

Their evidence may be weak but it is strong enough to go to trial ....no one public will know what exactly they have until then.

Well, if the rumors are to be believed, Stowe apparently thinks they are withholding information, that is what the big fight was about. The big question is why they would be doing it. If the case was solid there is no reason for something like to happen, but if it is not, then there are all sorts of scenarios and motivations for doing that.

 

[jggordo]

It seems to me that the TBI has somehow inserted itself into more of a political position in this case. In so much that it is an appointed position by the Governor of TN going against an elected District Attorney who has to answer to not only the Judge but also voters. I have never seen a case where an investigative agency went to a victim's family to garner support their position in a case, or made public comments via media against a District Attorney.

Following is just one of the MANY cases being overturned or convictions set aside due to investigative agencies and / or DA's not providing ALL evidence. It also shows how far reaching and widespread the damages from it. The types of problems in this case not only present themselves now to the prosecution of this case but years to come under appeals, IMO. It is telling to me that Stowe distanced himself from this case.

http://www.chicagotribune.com/subur...uit-settlement-met-20150320-story.html#page=1

 

[pearl]

The local Sheriffs department are the responsible investigators, not the TBI. The TBI is just providing assistance and technical expertise. Effectively they are outside the orbit of normal discovery obligations as a result.

However, they are not outside the US Constitution's orbit.