GUILTY NH - Abby Hernandez, 14, North Conway, 9 Oct 2013 - #15

[PoirotryInMotion]

Given that AH is a child, if they find physical evidence of AH's presence in the storage unit, such as hair samples, DNA, etc., I think they would have a slam-dunk case without ever asking her to testify.

I'd think it'd take more than just that. If LE found stray hairs of some child in our pool house or shed, would that be proof we'd kidnapped her? I think the State would have to prove 'intent to commit an offense against her' and prove confinement as well.

 

[Steleheart]

Sorry I'm sure this is already posted but when I'd his next court date?

<snip>

"Prosecutors were scheduled to air their evidence against 34-year-old Nathaniel Kibby at a hearing Tuesday. Lawyers for both sides agreed Friday to postpone that hearing for 30 days, according to court documents"

Read more: http://www.wmur.com/news/evidence-hearing-in-abby-hernandez-case-postponed/27377398#ixzz3A63dYkWq

 

[gnomony]

I'd think it'd take more than just that. If LE found stray hairs of some child in our pool house or shed, would that be proof we'd kidnapped her? I think the State would have to prove 'intent to commit an offense against her' and prove confinement as well.

If they could prove she was in that storage container (and the indisputable facts are that she was a child and was missing), I think they could combine that with circumstantial evidence (maybe receipts for items purchased, etc.) to build a pretty persuasive case. I can't quite imagine NK's claiming that, okay, this missing child was in my storage container, but I didn't know anything about it.

 

[PoirotryInMotion]

If they could prove she was in that storage container (and the indisputable facts are that she was a child and was missing), I think they could combine that with circumstantial evidence (maybe receipts for items purchased, etc.) to build a pretty persuasive case. I can't quite imagine NK's claiming that, okay, this missing child was in my storage container, but I didn't know anything about it.

It's interesting to consider how this could play out. But truthfully, I think the State has its work cut out for itself. If the neighbors in that close-quarters community didn't see her, it'd be easy for defense to claim he didn't know she was there, either. It's entirely possible (from descriptions I've read in media) that his 3-rm shipping ctr was a sort of bunker he had. Outfitted with guns, living/sleeping qtrs, etc. I've read about some people using these as an alternative cheaper version of 'tiny home' - and media has said it was outfitted with electricity. (I'll find the link again if needed.) What State is going to have to prove is that he confined her or LOCKED HER UP in there, preventing escape, and that he kept her there for the intent to commit an offense against her. State bears the burden of proof for the charges. Circumstantial evidence is not proof to an unbiased jury.

Here's a possible defense scenario I see playing out if it goes to trial:

"We were friends, she apparently needed time away from a stressful at-home situation (already acknowledged in mom's and dad's public letters to her), I left the container unlocked as my guns were already locked up inside, she knew about it as she'd visited me before (just as friends), she came and stayed there without my knowledge."

This is why I don't believe DNA on the property alone can convict him of the State's charge against him.

 

[gnomony]

(snip)Circumstantial evidence is not proof to an unbiased jury. (snip)
This is why I don't believe DNA on the property alone can convict him of the State's charge against him.

Circumstantial evidence alone is not proof, but the right collection of circumstantial evidence, skillfully presented, can certainly bolster a case.

I agree that DNA alone won't convict him, but, given the likelihood that it would be augmented by other evidence, I think that (apologies to Johnnie Cochran) "if they find the DNA, Nate gets sent away."

 

[Not Without Peril]

An offense could include physically touching her, using threatening words -- probably even keeping her out of school.

How could physical evidence, such as DNA, establish beyond a reasonable doubt that Kibby confined Hernandez to prevent her from attending school? Or that Kibby had confined Hernandez because he wished to threaten her with his words? Or that, when he confined Hernandez, his goal was to commit an offense that requires proof of a physical touching?

 

[Not Without Peril]

I can't quite imagine NK's claiming that, okay, this missing child was in my storage container, but I didn't know anything about it.

He does not have to testify; the burden is on the state. The state must prove beyond a reasonable doubt that Kibby confined her to carry out some other offense. I do not see how DNA or receipts would prove this.

 

[gnomony]

How could physical evidence, such as DNA, establish beyond a reasonable doubt that Kibby confined Hernandez to prevent her from attending school? Or that Kibby had confined Hernandez because he wished to threaten her with his words? Or that, when he confined Hernandez, his goal was to commit an offense that requires proof of a physical touching?

It wouldn't, alone. But it would be a sorry prosecutor who started with a missing child's DNA in a bunker and couldn't put the perp away. Of course, more evidence would be necessary (and more evidence is apparently being collected), but it's hard to imagine defending against a legit DNA sample from a bunker.

 

[Not Without Peril]

It wouldn't, alone. But it would be a sorry prosecutor who started with a missing child's DNA in a bunker and couldn't put the perp away. Of course, more evidence would be necessary (and more evidence is apparently being collected), but it's hard to imagine defending against a legit DNA sample from a bunker.

The fact that DNA evidence, by itself, would likely be legally insufficient evidence, brings me back to my original point: Abigail very likely will have to testify; otherwise, Kibby will walk. When she testifies, she will be cross-examined. She will be asked about the sketch and about her description.

 

[PoirotryInMotion]

Circumstantial evidence alone is not proof, but the right collection of circumstantial evidence, skillfully presented, can certainly bolster a case.

I agree that DNA alone won't convict him, but, given the likelihood that it would be augmented by other evidence, I think that (apologies to Johnnie Cochran) "if they find the DNA, Nate gets sent away."

I'd agree that misc DNA evidence that showed AH was at the property could bolster the State's case if they discover or have the incriminating evidence that actually makes the case.

 

[AnaTeresa]

Based on the information that we have, Abigail is the only witness to her own confinement. If that is in deed the case, a conviction will very likely depend on her trial testimony. She will very likely be questioned about the sketch and the description. She will have to respond to those questions.

If Kibby is Abigail's abductor, he might have victimized others in the past and he might victimize others in the future. Accordingly, I hope that Abigail will be thoroughly prepared to describe his crimes and to harmonize any inaccuracies in the information that she provided. Simply put, those who truly wish to protect Abigail cannot ignore these issues.

At this point, we have no idea what she'll be questioned about, as the evidence hasn't been released. The sketch may not even be Kibby. The case is still in the investigation phase. I don't see the point in making presumptions about cross examination this early in the case.

 

[PoirotryInMotion]

He does not have to testify; the burden is on the state. The state must prove beyond a reasonable doubt that Kibby confined her to carry out some other offense. I do not see how DNA or receipts would prove this.

Exactly. The 'scenario' I presented above is not Kibby saying that in court (and I'd guess that Friedman, being a defense atty, would recommend NK NOT testify in his own defense); it is an alternative scenario that an unbiased jury would have to consider to explain her skin/hair DNA being found there.

 

[skibaboo]

My :twocents: on the sketch and why I haven't previously voiced my thoughts.

I don't think the sketch resembles NK very much at all. But things I have taken into consideration.

1, I am personally aware how trauma can affect a persons memory, and I do not have personal experience of what AH may have had to endure.
2, NK may have used disguises, AH may not have seen his face often or well enough to make a good judgement, also again memory can play tricks.
3, NK may or may not be the person described in the sketch, I haven't ruled out other people being involved at some stage, possibly innocently and again the memory could have played tricks. I have considered AH could have put a face to NK as a result of the affects of trauma.

An accomplice is unlikely based on the words of LE but not impossible as far as I know. The sketch could be an accomplice, it could be an image AH formed based on faces including NK or not, one seen in photos in a newspaper, on TV or someone AH last saw before she was abducted.

Number 3 is pure speculation regarding the affects trauma may possibly have played on the memory, and with not knowing if AH saw NK's face or how well or how often.

Out of respect for AH I wanted to hold off until we knew more but as the probable cause hearing has been postponed I thought I would chime in.

 

[Not Without Peril]

At this point, we have no idea what she'll be questioned about, as the evidence hasn't been released. The sketch may not even be Kibby. The case is still in the investigation phase. I don't see the point in making presumptions (sic) about cross examination this early in the case.

Well, if the sketch is not Kibby, all the better for the defense. Abigail would then have to explain who the sketch was intended to depict, and why HE isn't the one on trial.

And of course Abigail cannot predict the questions that the defense might ask. That is true in every case. Nevertheless, like in every case, it would be in her interest to be prepared in the event that certain matters are raised.

 

[AnaTeresa]

Well, if the sketch is not Kibby, all the better for the defense. Abigail would then have to explain who the sketch was intended to depict, and why HE isn't the one on trial.

And of course Abigail cannot predict the questions that the defense might ask. That is true in every case. Nevertheless, like in every case, it would be in her interest to be prepared in the event that certain matters are raised.

And that's what prosecutors and victims advocates will do - at the appropriate time.

In my opinion, defense counsel does not care about the sketch right now and whether or not it's supposed to be Kibby. Defense counsel hasn't even decided yet whether they want the case to go to trial. Right now, defense counsel is focused on figuring out the scope of the case and preserving evidence for his client.

It has only been twenty days since Abby returned home. TWENTY. Again, in my opinion, it is premature to assume that Abby needs to prepare for cross examination at this point.

 

[Not Without Peril]

And that's what prosecutors and victims advocates will do - at the appropriate time.

In my opinion, defense counsel does not care about the sketch right now and whether or not it's supposed to be Kibby. Defense counsel hasn't even decided yet whether they want the case to go to trial. Right now, defense counsel is focused on figuring out the scope of the case and preserving evidence for his client.

It has only been twenty days since Abby returned home. TWENTY. Again, in my opinion, it is premature to assume that Abby needs to prepare for cross examination at this point.

While I appreciate your position, I respectfully disagree. Abigail has been through a highly traumatic experience at a very young age. It will take great strength to go before a court and relive that trauma. There is no room for error; the idea that Kibby could be back on the street is, at least in my mind, unacceptable. In this case, I cannot see the harm in being over-prepared.

 

[Rivernh]

The fact that DNA evidence, by itself, would likely be legally insufficient evidence, brings me back to my original point: Abigail very likely will have to testify; otherwise, Kibby will walk. When she testifies, she will be cross-examined. She will be asked about the sketch and about her description.

I have to say that DNA evidence Abby was there is very strong proof. LE has mentioned many times that as a child she didn't have the means to take care of herself. Maybe NK *could* claim he didn't know that Abby was hiding in his storage container, but that is problematic because Abby had other needs, like warmth in the winter and food and bathroom needs. And how did she get into his storage container, some 30 miles from where she was last seen? I do not see that as any kind of plausible argument for the defense

 

[Steleheart]

And that's what prosecutors and victims advocates will do - at the appropriate time.

In my opinion, defense counsel does not care about the sketch right now and whether or not it's supposed to be Kibby. Defense counsel hasn't even decided yet whether they want the case to go to trial. Right now, defense counsel is focused on figuring out the scope of the case and preserving evidence for his client.

It has only been twenty days since Abby returned home. TWENTY. Again, in my opinion, it is premature to assume that Abby needs to prepare for cross examination at this point.

ITA.
With regard to the investigation concerning charges and evidence being in it's earliest stages I would like to point out that the charge Kibby is facing right now only relates to the date of October 9, On NS Road as stated in the complaint. That single charge is very clearly stated. The full reading of the complaint by the Judge at the arraignment;

"The charge is a class B felony...The allegation is that you have committed the offense of kidnapping on October 9th of two thousand thirteen and that the location of that offense was on the North South Road in Conway New Hampshire. The allegation is that you knowingly confined AH, with a date of birth of 10/12/1998, with the purpose to commit an offense against her. The felony means that if you are convicted you will be sent to the New Hampshire State Prison for a period not to exceed 7 years, you can be ordered to pay a fine of up to $4000, and you will be placed on probation for up to 5 years."

http://www.wmur.com/news/raw-video-...abby-hernandez-disappearance/27209250#!bBxxZ2

DNA, forensics and other evidence being collected at the mobile home will be related to whatever other charges that evidence warrants and Not the incident on North South Road on 10/9.


ETA: Jane Young's statement after the arraignment;

"As we indicated, this arrest is the first step in this case. As the complaint indicates Abby was kidnapped here in Conway. As you are all aware searches are ongoing right now at Mr. Kibby's residence. If there is additional evidence that other crimes [were] committed those charges will be brought.

http://www.wmur.com/news/raw-video-...ence-after-kibby-arraignment/27209634#!bBBkPv

:moo:

 

[Not Without Peril]

I have to say that DNA evidence Abby was there is very strong proof. LE has mentioned many times that as a child she didn't have the means to take care of herself. Maybe NK *could* claim he didn't know that Abby was hiding in his storage container, but that is problematic because Abby had other needs, like warmth in the winter and food and bathroom needs. And how did she get into his storage container, some 30 miles from where she was last seen? I do not see that as any kind of plausible argument for the defense

To clarify, when I referred to the legal sufficiency of the evidence, I did not mean the persuasive value of the evidence. A defendant may challenge the legal sufficiency of the evidence in the form of a motion. A judge either grants this motion or denies it. The judge cannot evaluate the persuasive value of the evidence; the judge must act as if the state's evidence is all true. In this case, let's pretend that the state has the following evidence: Abigail's DNA, found in the container. The judge would have to act as if any reasonable inference that may be drawn from that evidence is true. Said differently, the judge has to determine whether a jury COULD find the defendant guilty.

Now, could a jury conclude that, because Abigail's DNA was inside the defendant's trailer, the defendant must have confined her because he wanted to commit some additional offense against her? The answer is plainly "no" -- none of us can even determine what the other offense might be, let alone that Kibby intended to commit it, and that is why he confined Hernandez. The judge would grant the motion and dismiss the case.

NOTE: I am not verified as a lawyer on this site and do not claim to be one in this post.

 

[Rivernh]

Keeping in mind that we still do not have very much of the evidence or know the extent of charges that NK faces, I have been given some thought as to possible defenses that he may attempt to employ--at least concerning the kidnapping charge

1. NK could claim that he has absolutely nothing to do with Abby's disappearance at all during the entire nine months that she was missing. *If* LE has any evidence that Abby was in his home or storage container that will be a very tough defense for him. There would be only two ways that Abby's DNA would get into his house. A. Abby was there. B. DNA got in from another source. (presumably brought in by a third party...not very plausible) The amount of evidence LE can come up with could be crucial in this defense.

2. Abby was there, but NK did not realize that she was Abby but thought she was someone else who was over 18 and there consensually. In this case, I can see the prosecution trying to build evidence that NK knew about Abby's disappearance, perhaps had been exposed to missing poster signs in places he frequented, been parts of conversations in which she was discussed. The fact he worked in Conway makes it pretty improbable that he was not aware. Abby said she saw the newspaper from time to time. Any testimony/evidence that NK at least occasionally got the Conway paper would not support an "ignorance" claim. Also, if he claims he thought that she was a consenting adult, then evidence that she had interacted with other people in his home or went places with him would collaborate this type of a claim. It's unlikely that he would have a new girlfriend living with him for any length of time that no one had *ever* seen or knew about.

3. He could claim that he knew it was Abby, but was helping her in her choice to run away. That is in itself a crime. It has occurred to me that he could plead guilty to this, and "other" crimes against Abby might be harder to prove unless she testifies.

Of course, my disclaimer is that there is a heck of a lot we do not know. I'm thinking that its not looking good for NK unless LE cannot come up with any physical evidence that Abby was with him