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

[AZlawyer]

Good morning AZ

There is a lot of discussion as to why TH did not contest the RO. What if any legal reason would there be for Houze to advise his client not to contest at this point? And can it be altered or removed entirely in some other sort of legal action?

Thanks for your time!

There are a few reasons not to contest the RO. Let's start with (1) you don't want to testify re: the MFH because you might incriminate yourself, (2) you don't want to testify re: Kyron because you might incriminate yourself, (3) you don't particularly care if you get to see your toddler or not. For the record, I think #3 is not true.

I'm not sure what you mean by "some other sort of legal action" but I don't see why the judge in the divorce couldn't grant custody or visitation to TH even if the RO is never challenged. Gitana, I believe, actually practices in this area, so if she stops by with her opinion on this you should all take her word over mine.

 

[gitana1]

There are a few reasons not to contest the RO. Let's start with (1) you don't want to testify re: the MFH because you might incriminate yourself, (2) you don't want to testify re: Kyron because you might incriminate yourself, (3) you don't particularly care if you get to see your toddler or not. For the record, I think #3 is not true.

I'm not sure what you mean by "some other sort of legal action" but I don't see why the judge in the divorce couldn't grant custody or visitation to TH even if the RO is never challenged. Gitana, I believe, actually practices in this area, so if she stops by with her opinion on this you should all take her word over mine.

Hey, AZ! We are contradicting each other. I posted two posts (one super, super long post) about custody and visitation and how it is affected by failing to contest the RO, in the thread regarding good reasons why TH might fail to contest it. In my experience and upon a review of OR law, which is quite similar to CA law where I practice, TH has prejudiced herself horribly by not contesting the RO and will be unlikely to regain any custody rights in the foreseeable future. Take a look and let me know what you think. TIA!!!

 

[debs]

Okay, when two lawyers contradict one another, is there a cage match?

 

[gitana1]

Okay, when two lawyers contradict one another, is there a cage match?

I hope not! But it could be pretty funny.

 

[just]

Hi Attorneys and thanks for taking time to answer some questions. If TH is guilty of kidnapping and murdering Kyron, would she be advised by her attorney to plea bargain for a shortened sentence/life in prison versus the death penalty in exchange for telling the LE where he was buried? Or, does this type of plea bargaining happen after a conviction?

 

[AZlawyer]

Hey, AZ! We are contradicting each other. I posted two posts (one super, super long post) about custody and visitation and how it is affected by failing to contest the RO, in the thread regarding good reasons why TH might fail to contest it. In my experience and upon a review of OR law, which is quite similar to CA law where I practice, TH has prejudiced herself horribly by not contesting the RO and will be unlikely to regain any custody rights in the foreseeable future. Take a look and let me know what you think. TIA!!!

Wow, that post on the other thread really was long. But informative.

IIRC, the cases were consolidated,and there was never any contested evidentiary hearing on the RO. My assumption was that, in a consolidated case, the results of any contested custody hearing would supersede the initial, ex parte RO orders. If the permanent custody request is contested, I don't think the Court would say after 30 days, "OK, you didn't ALSO contest the temporary RO, so these facts are deemed admitted and will be held against you."

This is all based upon my faith in the common sense of judges, which could very well be misplaced.

I agree that, the longer TH shows no interest whatsoever in seeing her daughter, the harder it will be to convince the judge that her daughter can't live without her. In that sense, her failure to contest the RO is a terrible strategic decision.

 

[AZlawyer]

Hi Attorneys and thanks for taking time to answer some questions. If TH is guilty of kidnapping and murdering Kyron, would she be advised by her attorney to plea bargain for a shortened sentence/life in prison versus the death penalty in exchange for telling the LE where he was buried? Or, does this type of plea bargaining happen after a conviction?

There are so many variables that it's impossible to say what her attorney would advise her to do. But if the evidence against her was quite good, and the DP was on the table, and she didn't have a lot of compelling mitigation evidence to offer ("yeah, I killed him, but I had a crappy childhood...and I'm mentally ill...and my foot hurts...etc.")--then it would be good advice.

 

[desquire]

Wow, that post on the other thread really was long. But informative.

IIRC, the cases were consolidated,and there was never any contested evidentiary hearing on the RO. My assumption was that, in a consolidated case, the results of any contested custody hearing would supersede the initial, ex parte RO orders. If the permanent custody request is contested, I don't think the Court would say after 30 days, "OK, you didn't ALSO contest the temporary RO, so these facts are deemed admitted and will be held against you."

This is all based upon my faith in the common sense of judges, which could very well be misplaced.

I agree that, the longer TH shows no interest whatsoever in seeing her daughter, the harder it will be to convince the judge that her daughter can't live without her. In that sense, her failure to contest the RO is a terrible strategic decision.

I've really got to think that this all comes down to the temperment of the judge and Terri's credibility. I think we all agree that under ordinary circumstances a parent's lack of interest in gaining custody of a child would would be a big fail on a principal custody criterion. But this case falls way outside ordinary circumstances. Terri's argument almost makes itself and it would be pretty easy, under the circumstances, to portray her failure to contest the RO as a difficult but deliberate short term decision and selfless act of motherly love done to insulate her daughter from the media circus suurounding Terri and the temporary hardships that have been thrust upon Terri. I don't even think Terri would need to explicitly argue that fighting the RO would increase her jeopardy with respect to thecriminal investigation, I think most judges would get that and factor it in. I think if Terri can do a credible job of selling that story, most family court judges would buy it and would not give the failure to contest the RO undue weight.

Now watch me be wrong.

 

[Billylee]

Brief comment, ah yes, and that's why they still call it "interpreting the law". Hmmm?

 

[Jo in Calif]

If LE brings a case before the GJ, say for kidnapping and custodial interference and the GJ returns an indictment.
Can LE sit with that, gather more evidence, if they also suspect murder and call the GJ again, when they, say find a body?

 

[desquire]

If LE brings a case before the GJ, say for kidnapping and custodial interference and the GJ returns an indictment.
Can LE sit with that, gather more evidence, if they also suspect murder and call the GJ again, when they, say find a body?

No, the DA can't sit on an indictment for later use. Once an indictment is filed, the court must issue an arrest warrant and, once arrested, the accused must be arraigned within 8 days.
That said, the DA can always continue to pursue other charges with the grand jury and the grand jury can issue an indictment for a different crime at any time within the statute of limitations.

 

[pufnstuf]

No, the DA can't sit on an indictment for later use. Once an indictment is filed, the court must issue an arrest warrant and, once arrested, the accused must be arraigned within 8 days.
That said, the DA can always continue to pursue other charges with the grand jury and the grand jury can issue an indictment for a different crime at any time within the statute of limitations.

Riddell said a Marion County (Oregon) grand jury handed up the indictments Oct. 27 but the charges remained sealed until the tax amnesty period ended (on November 19). Arraignment is scheduled for Dec. 7, he said.

http://www.oregonlive.com/politics/index.ssf/2009/11/sizemore_wife_charged_with_tax.html

 

[AZlawyer]

Riddell said a Marion County (Oregon) grand jury handed up the indictments Oct. 27 but the charges remained sealed until the tax amnesty period ended (on November 19). Arraignment is scheduled for Dec. 7, he said.

http://www.oregonlive.com/politics/index.ssf/2009/11/sizemore_wife_charged_with_tax.html

Good point. In that case, it sounds like there was no special procedure to "seal" the indictments longer than usual--LE just held off on executing the arrest warrants until after the amnesty period ended. The prosecutor said it was to "give them a chance" to file for amnesty. Questionable ethics, IMO--wouldn't the best way to "give them a chance" have been to arrest them immediately, at which time they would have posted bond and then run down to file for amnesty? :waitasec:

So the question is, would there be some reason LE would hold off on arresting TH if the grand jury had issued an indictment against her?

 

[desquire]

Good point. In that case, it sounds like there was no special procedure to "seal" the indictments longer than usual--LE just held off on executing the arrest warrants until after the amnesty period ended. The prosecutor said it was to "give them a chance" to file for amnesty. Questionable ethics, IMO--wouldn't the best way to "give them a chance" have been to arrest them immediately, at which time they would have posted bond and then run down to file for amnesty? :waitasec:

So the question is, would there be some reason LE would hold off on arresting TH if the grand jury had issued an indictment against her?

Yup, it was a good point. My fault for answering the question with a scenario in my pea head. The 8-day limit in Oregon is after arrest. Clearly if the accused is a fugitive or cannot be easily secured, there might be a long time between the indictment and the arrest. In the Terri scenario, it's difficult to conceive of a compelling reason why the police couldn't arrest her quickly.

And there is the huge loophole where the DA simply delays obtaining the indictment. He's got total control over when the clock starts. Why mess with delaying the arrest and arraignment when you can just delay the indictment?

 

[Jo in Calif]

Yup, it was a good point. My fault for answering the question with a scenario in my pea head. The 8-day limit in Oregon is after arrest. Clearly if the accused is a fugitive or cannot be easily secured, there might be a long time between the indictment and the arrest. In the Terri scenario, it's difficult to conceive of a compelling reason why the police couldn't arrest her quickly.

And there is the huge loophole where the DA simply delays obtaining the indictment. He's got total control over when the clock starts. Why mess with delaying the arrest and arraignment when you can just delay the indictment?

So are we talking here, that there is a possibility, that the DA has delayed the indictment? Considering there might be one to delay?

 

[desquire]

So are we talking here, that there is a possibility, that the DA has delayed the indictment? Considering there might be one to delay?

Given what little we know, that is one of many many possibilities. It's important to note that it wouldn't be unusual. You really could argue that it's the norm - only, in most cases, the DA has everything they need for a conviction before they even involve the grand jury, shares only as much evidence as the grand jury needs to indict, and the whole process is over in an afternoon. The evidentiary gulf between the "probable cause" you need to obtain an indictment and the "beyond a reasonable doubt" you need to obtain a conviction is deep and wide. No prosecutor worth her municipal paycheck would seek an indictment if she didn't think she had enough to win a conviction. That would be like pulling the pin on the grenade when it's still buried in your pocket (sorry, I'm analogy-challenged this afternoon).

Granted there will always be the exception. Sometimes a weak case is the best that the DA can do and, if the case is important enough, they run with what they have.

 

[Billylee]

As a stepmother who has raised Kyron since he was two, does TH have any right to custody or visitation of Kyron in the divorce proceedings? (I mean if this were a normal case?)

 

[desquire]

As a stepmother who has raised Kyron since he was two, does TH have any right to custody or visitation of Kyron in the divorce proceedings? (I mean if this were a normal case?)

The answer is "Yes, but..."

In Oregon, the law recognizes a non-adoptive stepparent’s right to continue their relationships with their stepchildren irrespective of subsequent divorce. This is not the case in many other states.

To exercise the right, stepparents must demonstrate a “child-parent relationship.” A “child-parent relationship” is a relationship within the preceding six months in which the stepparent has had physical custody of the child (or resided in the same household) and also provided necessities such as food and shelter on a day-to-day basis. Stepparents seeking only visitation rights (not custody) need only demonstrate that they enjoy an “on-going relationship” with the child. That's the "Yes" part of the answer.

The catch is that the court applies a so-called “rebuttable presumption” that the legal parent “acts in the best interests of the child.” This means that the legal parent can cut all ties between the child and the stepparent and the court will assume that such action is in the child’s best interest. To rebut the presumption, the stepparent must show, by at least a preponderance of the evidence, that the legal parent is not acting in the child’s best interest. That's the "but." For Terri, the "but" is huge.
(No pun intended, I swear)

 

[Billylee]

"Ms. Horman misses her child and would like to see her," said attorney Peter Bunch during a divorce hearing Thursday.

Terri's lawyer said he plans to ask the court to alter the current restraining order. It requires Terri Horman to stay away from her daughter.

http://www.kgw.com/news/local/Terri-Horman-Seeks-Visitation--104610209-missing-kyron-portland.html

Can he do this now, isn't it too late since the RO was not contested? If it can be done, can it be done at any time, or would it have to wait until Jan.?

 

[AZlawyer]

"Ms. Horman misses her child and would like to see her," said attorney Peter Bunch during a divorce hearing Thursday.

Terri's lawyer said he plans to ask the court to alter the current restraining order. It requires Terri Horman to stay away from her daughter.

http://www.kgw.com/news/local/Terri-Horman-Seeks-Visitation--104610209-missing-kyron-portland.html

Can he do this now, isn't it too late since the RO was not contested? If it can be done, can it be done at any time, or would it have to wait until Jan.?

Since the RO proceeding and the divorce proceeding were consolidated, IMO the RO proceeding "merged" into the divorce proceeding and does not place any kind of restraint on the judge changing the RO orders. It is up to the judge whether he wants to abate the entire case until January or allow the parties to raise certain matters like visitation prior to that time.

Still, if I were Kaine's lawyer, I would want to contest this request by saying "maybe she shouldn't have visitation with baby K if she is the type of person who attempts to (and possibly successfully does) have people killed." Then Terri would be asked some questions which (apparently) she doesn't want to answer, and we'd be back to square one. If I were the judge, I would say, ok, you can have supervised visitation at the home of [trusted person who is not a member of TH's family and is not Kaine but where baby K would be safe and comfortable]--assuming such a place exists.