Questions for our VERIFIED LAWYERS*~*~*NO DISCUSSIONS*~*~*

[Kimster]

If Kyron is not found and LE does not have enough info to charge someone how long will TH be asked to stay in the house with no phone/computer etc? At what point would her atty say "Go on with your life."

 

[Calliope]

For our attorneys, just a question as to your own 'gut' feelings.

If Terri is eventually charged and it goes to trial, do you feel there'll be a change of venue? (dumb question alert): Does a change of venue have to remain within the same state? (I'm trying to recall if I've ever heard of a trial other than Federal being moved across state lines) Is the prosecution allowed to request this, or is it only for the defense to do? I ask this in case someone other than Terri is charged, because so many have expressed they feel she is guilty regardless of any evidence to the contrary.

 

[Calliope]

Again, assuming Terri's AKA is "ham sandwich", if she isn't convicted on state charges (whatever they may be), are there any applicable Federal charges for which she could stand trial?


http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/2mcrm.htm#9-2.031

This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General.

---------

I'm wondering if a Federal prosecution can be based upon the fact that Kyron was taken from a public (and Federally funded) school.

http://www.fbi.gov/hq/cid/civilrights/statutes.htm#section245

Title 18, U.S.C., Section 245

Federally Protected Activities

1) This statute prohibits willful injury, intimidation, or interference, or attempt to do so, by force or threat of force of any person or class of persons because of their activity as:

a) A voter, or person qualifying to vote...;

b) a participant in any benefit, service, privilege, program, facility, or activity provided or administered by the United States;

c) an applicant for federal employment or an employee by the federal government;

d) a juror or prospective juror in federal court; and

e) a participant in any program or activity receiving Federal financial assistance.

OR

If it's found that mail or internet (and possibly telephone?) communication was used to plan, carry out or cover up his kidnapping. I'm half asleep --- interstate commerce, I think is the Federal jurisdiction it falls under; communication systems regulated by the Federal government. As an example, the FBI paid a visit to my stalking ex b/f for subtle threats and harassment me via email. He was informed it's a Federal offense and they warned him to back off.

--------

http://www.law.cornell.edu/uscode/18/875.html

(c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.


(if someone else is involved):

http://www.law.cornell.edu/uscode/18/241.html

§ 241. Conspiracy against rights


If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
-------

I know... I'm reaching here...

 

[AZlawyer]

How does TH's retainer work with Mr. Houze? Does she retain him for a period of time, or is it a prepayment for future services rendered? Is he likely to be billing her now, even if she paid a retainer at first? If so, for what, do you think? She's been seen arriving at and leaving from his office several times, but she hasn't been charged with anything. Could LE conceivably just string it out until Terri's out of money and then try her? Of course everyone wants a speedy resolution, but if they aren't 100% sure they can get a conviction right now, could they just wait? It seems like her money will dry up eventually - probably sooner than later. Are there some kind of ethics involved with that?

No clue what their agreement is. If it were me, I would bill for criminal defense work on an up-front, flat-fee basis.

I don't think LE is waiting for her to run out of money. I think they're trying to get an indictment. They don't seem to be stringing anything out at all.

 

[AZlawyer]

These last 3 sentences make me want to ask the question, as I was informed by a friend that if you make a statement "I believe" or "I feel" and use phrases such as Kaine did to obtain his order, is the judge is more likely to grant your order. Is this typically true?

I found it to be helpful in my current custody case and was not made aware until after the fact that making statements in this context can weigh on how a judge rules. Just curious as Kyron's case was already very public when Kaine filed but I question how the "publicity" of the case against Kaine's statements may have affected the judges decision.

I think judges are more likely to ignore statements about feelings, particularly if they are based on hearsay ("the police told me").

I don't think any decisions have been made by the divorce judge that are unusual or inexplicable, so there's no need to consider any motive other than "standard operating procedure."

 

[AZlawyer]

For our attorneys, just a question as to your own 'gut' feelings.

If Terri is eventually charged and it goes to trial, do you feel there'll be a change of venue? (dumb question alert): Does a change of venue have to remain within the same state? (I'm trying to recall if I've ever heard of a trial other than Federal being moved across state lines) Is the prosecution allowed to request this, or is it only for the defense to do? I ask this in case someone other than Terri is charged, because so many have expressed they feel she is guilty regardless of any evidence to the contrary.

It is really way way way too early to think about a change of venue. We'd have to wait and see how the community reacts to the case (if there ever is a case). If someone besides Terri is charged, chances are that the community's reaction might be different than you expect, especially if there turns out to be lots of evidence against that person.

Change of venue would be within the same state, and I suppose could be requested by a prosecutor.

 

[AZlawyer]

Again, assuming Terri's AKA is "ham sandwich", if she isn't convicted on state charges (whatever they may be), are there any applicable Federal charges for which she could stand trial?


http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/2mcrm.htm#9-2.031

This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General.

---------

I'm wondering if a Federal prosecution can be based upon the fact that Kyron was taken from a public (and Federally funded) school.

http://www.fbi.gov/hq/cid/civilrights/statutes.htm#section245

Title 18, U.S.C., Section 245

Federally Protected Activities

1) This statute prohibits willful injury, intimidation, or interference, or attempt to do so, by force or threat of force of any person or class of persons because of their activity as:

a) A voter, or person qualifying to vote...;

b) a participant in any benefit, service, privilege, program, facility, or activity provided or administered by the United States;

c) an applicant for federal employment or an employee by the federal government;

d) a juror or prospective juror in federal court; and

e) a participant in any program or activity receiving Federal financial assistance.

OR

If it's found that mail or internet (and possibly telephone?) communication was used to plan, carry out or cover up his kidnapping. I'm half asleep --- interstate commerce, I think is the Federal jurisdiction it falls under; communication systems regulated by the Federal government. As an example, the FBI paid a visit to my stalking ex b/f for subtle threats and harassment me via email. He was informed it's a Federal offense and they warned him to back off.

--------

http://www.law.cornell.edu/uscode/18/875.html

(c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.


(if someone else is involved):

http://www.law.cornell.edu/uscode/18/241.html

§ 241. Conspiracy against rights


If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
-------

I know... I'm reaching here...

The state grand jury would not be considering any federal charges. Also, I think we can safely say that, whatever Terri did to Kyron, if anything, she did not do it because of his status as an attendant at a federally-funded school or in order to prevent him from exercising a federal right. Whether she did anything that might fall within one of the "interstate commerce" types of offenses is tough to say at this point, since we don't know if she did anything at all.

 

[eyes4crime]

I looked and couldn't find this question - so forgive me if I missed it.

The fifth amendment to the United States Constitution, and all state constitutions, provide that no person can be compelled to give evidence against himself.

Does this Constitutional right extend to Civil court? What about cases in Civil Court where evidence presented could/would be used in criminal court? TIA :blowkiss:

 

[AZlawyer]

I looked and couldn't find this question - so forgive me if I missed it.

The fifth amendment to the United States Constitution, and all state constitutions, provide that no person can be compelled to give evidence against himself.

Does this Constitutional right extend to Civil court? What about cases in Civil Court where evidence presented could/would be used in criminal court? TIA :blowkiss:

Yes, you still have a right not to incriminate yourself in a civil case. But if you choose to exercise that right, you'll probably lose.

I did a civil case once representing an employer whose 3 accounting employees embezzled $1.4 million. They refused to answer any questions at their depositions, and we won summary judgment for that reason.

 

[cypress]

This is more of an opinion question. Do you think it's possible that Terri's widely noted and unnecessary court appearance this week could be prep for a hearing lawyers anticipated, meaning, they knew the judge would rule in favor of Kaine this week?

Also, do you think they may be prepping her to testify at the future hearing? I've been wondering how long Terri's lawyers will allow her to be in limbo, specifically with regard to her daughter. Until Kyron is found, IMHO, LE has the evidence they have against her. The Grand Jury hasn't rushed to indict. From a legal and psychological standpoint, would it be beneficial for Houze and Bunch to allow Terri to testify at the September hearing?

Sorry, I have so many questions, and I'm struggling to articulate them in a meaningful way. Tired, I am.

Thanks!

 

[AZlawyer]

This is more of an opinion question. Do you think it's possible that Terri's widely noted and unnecessary court appearance this week could be prep for a hearing lawyers anticipated, meaning, they knew the judge would rule in favor of Kaine this week?

Also, do you think they may be prepping her to testify at the future hearing? I've been wondering how long Terri's lawyers will allow her to be in limbo, specifically with regard to her daughter. Until Kyron is found, IMHO, LE has the evidence they have against her. The Grand Jury hasn't rushed to indict. From a legal and psychological standpoint, would it be beneficial for Houze and Bunch to allow Terri to testify at the September hearing?

Sorry, I have so many questions, and I'm struggling to articulate them in a meaningful way. Tired, I am.

Thanks!

I'm not sure I understand the first question re: "prep for a hearing lawyers anticipated." I do think no one was surprised by the judge's rulings.

If there is an upcoming hearing, of course they will prep her to testify, except to the extent that answering the questions might cause her to incriminate herself, in which case she will take the 5th on those questions.

 

[cluciano63]

I'm wondering about Kaine having added to his RO/divorce action the part about Terri being looked at with regards to Kyron's disappearance. Could this have been a legal move, so that they could ask her about it in a divorce trial? And force her to take the
5th on a Kyron-related question? Becuase if she takes the 5th on a Kyron-question, there goes my fence...
I'm thinking she won't be doing any testifying, if her lawyers think she knows anything at all.

 

[cluciano63]

One more question...

Since the grand jury seems to be on-going...does this mean they have not yet seen enough to indict, or do they not take a vote until all parties have testified? I think a lot of people are assuming they have not seen enough to indict, but I am thinking they have not yet voted. Thanks.

 

[desquire]

I'm wondering about Kaine having added to his RO/divorce action the part about Terri being looked at with regards to Kyron's disappearance. Could this have been a legal move, so that they could ask her about it in a divorce trial? And force her to take the
5th on a Kyron-related question? Becuase if she takes the 5th on a Kyron-question, there goes my fence...
I'm thinking she won't be doing any testifying, if her lawyers think she knows anything at all.

I doubt it was that calculated. He needed to show actual or threatened harm to a family member and the MFH and Kyron were the two biggies. If they had been thinking about manuevering her onto making a statement on the record, they would have been hoping she contesteed the RO. It isn't necessary that he mentioned Kyron in the RO request to bring it up in the divorce proceeding. When they get around to arguing custody, I'm sure Terri's alleged involvement in Kyron's disappearance will be argument #1 for Kaine. I seriously doubt that was the purpose for filing for divorce but, if the judge doesn't abate, the result will be just what you describe. They will force Terri to testify, they will ask her every conceivable question about Kyron's disappearance and the role she may have played in it. She will either need to deny any involvement on the record or take the 5th.

 

[Billylee]

In KH's divorce documents it reads "the police have provided me with probable cause to believe the above two statements to be true". He is referring to his wife's involvement in the disappearance of his son and that she hired someone to murder him.

This was published in today's press: In late June, Kaine filed for divorce, citing among other things an alleged plot to kill him that investigators said was discussed by Terri Horman and a landscaper. The plot never went beyond talk, investigators said.

Two questions if they had probable cause back in June when these documents were filed, why do you think TH has not been arrested?

If they did not actually have probable cause to arrest TH back then, but lead KH to believe they did and that was/is the basis of his divorce proceedings, then is there some sort of legal exposure that LE has set itself up for from TH's side of the courtroom? Some sort of lawsuit for pain and suffering caused by LE to TH? I hope I'm making sense, because if there is, I could see more reason that LE would be pressing to pin this on TH, so I hope the answer is no.

 

[AZlawyer]

One more question...

Since the grand jury seems to be on-going...does this mean they have not yet seen enough to indict, or do they not take a vote until all parties have testified? I think a lot of people are assuming they have not seen enough to indict, but I am thinking they have not yet voted. Thanks.

The GJ is not likely to cut off the prosecutors in the middle of their presentation, even if they think they have seen enough evidence to indict.

In KH's divorce documents it reads "the police have provided me with probable cause to believe the above two statements to be true". He is referring to his wife's involvement in the disappearance of his son and that she hired someone to murder him.

This was published in today's press: In late June, Kaine filed for divorce, citing among other things an alleged plot to kill him that investigators said was discussed by Terri Horman and a landscaper. The plot never went beyond talk, investigators said.

Two questions if they had probable cause back in June when these documents were filed, why do you think TH has not been arrested?

If they did not actually have probable cause to arrest TH back then, but lead KH to believe they did and that was/is the basis of his divorce proceedings, then is there some sort of legal exposure that LE has set itself up for from TH's side of the courtroom? Some sort of lawsuit for pain and suffering caused by LE to TH? I hope I'm making sense, because if there is, I could see more reason that LE would be pressing to pin this on TH, so I hope the answer is no.

I think Kaine was using the term "probable cause" in a layperson's sense, not in a LE sense. He meant, "I have reason to believe that Terri did this, based on what the police told me." I'm sure that was true.

I don't think the police have enough evidence to arrest her on the MFH, or they would not have attempted the "sting" operation. But that doesn't mean they didn't have enough to think she did it, and to warn Kaine to get the heck out of the house.

 

[SacreBleu]

A question, and please forgive if this has already been addressed - I confess that I have not read the entire thread:

Suppose that Terri has confessed to Houze that she bears or shares responsibility (either rationally or irrationally) for Kyron's going missing: would the typical A+ rated defense attorney proceed in the manner in which Mr. Houze has?

ETA: Or, is this just SOP for any client? By that I mean - attending a divorce hearing, presumably restricting the client from cell phone, internet, etc.

 

[AZlawyer]

A question, and please forgive if this has already been addressed - I confess that I have not read the entire thread:

Suppose that Terri has confessed to Houze that she bears or shares responsibility (either rationally or irrationally) for Kyron's going missing: would the typical A+ rated defense attorney proceed in the manner in which Mr. Houze has?

ETA: Or, is this just SOP for any client? By that I mean - attending a divorce hearing, presumably restricting the client from cell phone, internet, etc.

Houze hasn't really done anything that would tell us one way or another what story Terri has given him.

Attending a divorce hearing would be SOP for a defense attorney who is trying to get the divorce case delayed pending the resolution of the criminal case (if and when there is one). Actually, is the same attorney representing her for the divorce also? I can't remember.

I don't think we know for sure that Houze asked her not to use the cell phone or internet, but given her chattiness I would think any defense attorney would give her that advice.

 

[debs]

Houze hasn't really done anything that would tell us one way or another what story Terri has given him.

Attending a divorce hearing would be SOP for a defense attorney who is trying to get the divorce case delayed pending the resolution of the criminal case (if and when there is one). Actually, is the same attorney representing her for the divorce also? I can't remember.

I don't think we know for sure that Houze asked her not to use the cell phone or internet, but given her chattiness I would think any defense attorney would give her that advice.

Terri has two attorneys: Houze for criminal defense and Bunch for civil domestic representation.

 

[BlOnDe_GuRrL]

how is it that desiree and kaine are allowed to go on tv... pointing fingers at terri and telling everyone that they believe she took kyron.. and other things.. without having proof?
i understand freedom of speech.. but what about presumption of innocence?
are people allowed to just go around and blame people (on tv) for things that they can not prove?