2010.06.28 - Kyron's Dad files for divorce and restraining order

[Billylee]

I think the point is, they're not going to get an answer from her no matter what they ask. It's a total waste of time,

"Terri are you pregnant?" "Terri, where's the body?"

Seriously, do you think they expected an answer. They're on the clock, they're getting paid by someone, frivolously if you ask me. JMO

 

[mmmagique]

Most of the points Bunch made were backed up with 'case' law, Constitutional rights, and Oregon law. Bunch states emphatically that Houze took the money as a retainer and put it into his trust and that being forced to expose an anonymous donor would be a poor precedent in Oregon law. moo mho

Notice that Bunch, toward the end of his argument, states that the defense for such frivolous (his word not mine) requests is expensive and asks the court for reimbursement from Kaine for his legal fees. Bunch doesn't seem like someone to mess around with. moo mho

This is how I read the document and is my interpretation. Hopefully, this is not construed as bashing or as an indictment of Kaine. moo mho hoo and all that stuff

Did you read the case law? (all of it?) I didn't.
But in paralegal school, I was taught how to read case law and interpret its relevance to a case.

Some case law that looks like it would be relevant to an argument just isn't, or even worse, obfuscates the argument so much that you're not really sure who is arguing what any longer.

I could, if I wanted to, (which I emphatically DO NOT) write a memorandum such as the one Bunch turned in, cite a bunch of case law and statutes, and argue for almost anything. We are taught to argue both sides of any point.

Attorneys of course, get even more training in such.

Just because something looks important and seems to address the important points of an issue, does not mean it does. I have no desire to read all the stuff he threw out there, but I may take the time one of these days just for laughs. (or possibly enlightenment, you never know)

 

[germaine]

Did you read the case law? (all of it?) I didn't.
But in paralegal school, I was taught how to read case law and interpret its relevance to a case.
Some case law that looks like it would be relevant to an argument just isn't, or even worse, obfuscates the argument so much that you're not really sure who is arguing what any longer.
I could, if I wanted to, (which I emphatically DO NOT) write a memorandum such as the one Bunch turned in, cite a bunch of case law and statutes, and argue for almost anything. We are taught to argue both sides of any point.
Attorneys of course, get even more training in such.
Just because something looks important and seems to address the important points of an issue, does not mean it does. I have no desire to read all the stuff he threw out there, but I may take the time one of these days just for laughs. (or possibly enlightenment, you never know)

snbbm~

imo, truer words could not be spoken! Plus, frivolous is a word attorneys' seem to throw around quite a bit. IANAL, but If something is really frivolous, I think the opposing party can ask that it be stricken and for sanctions, and the court can grant them. I don't think anyone in that courtroom truly believes that Rackner's arguments are frivolous in any way shape or form. Bunch is just advocating his client's position based on the law he has to work with, imo. I also don't think that Bunch's arguments are ironclad. Just from that one part I read and posted about involving who has the burden of proof for "suit money" shows that, imo and jmoo

 

[Calliope]

IDK Debs, I assumed it was open; given all the tweets coming out of the courtroom.

THAT seems strange to me. Here, family court sessions of this type (custody, divorce, etc.) are closed. Only the involved parties and their attorneys allowed. I wasn't even allowed to be present when my daughter was wrangling with her ex over visitation and custody, even though they live with me and I had (IMO) a direct interest in whatever decision came down.

 

[Calliope]

snbbm~

imo, truer words could not be spoken! Plus, frivolous is a word attorneys' seem to throw around quite a bit. IANAL, but If something is really frivolous, I think the opposing party can ask that it be stricken and for sanctions, and the court can grant them. I don't think anyone in that courtroom truly believes that Rackner's arguments are frivolous in any way shape or form. Bunch is just advocating his client's position based on the law he has to work with, imo. I also don't think that Bunch's arguments are ironclad. Just from that one part I read and posted about involving who has the burden of proof for "suit money" shows that, imo and jmoo

Well, he persuaded the judge. So I guess that's all that matters.

 

[grandmaj]

Gitana..... please weigh in. I could swear somewhere you said the abatement stopped all motions in family court. If so how can the RO be now reopened for visitation for K. Thanks.

 

[Billylee]

Gitana..... please weigh in. I could swear somewhere you said the abatement stopped all motions in family court. If so how can the RO be now reopened for visitation for K. Thanks.

AZlawyer just answered this question in the legal thread.

 

[Calliope]

I thought one of the maxims of trial lawyers (both civil and criminal) was "never ask a question in court that you do not already know the answer to"?

Exactly.

 

[GrainneDhu]

Some case law that looks like it would be relevant to an argument just isn't, or even worse, obfuscates the argument so much that you're not really sure who is arguing what any longer.

SBM

An example of this was in my divorce trial, when my ex's (very young and inexperienced) lawyer cited a particular case to support her point.

Unfortunately, the case she cited was one that my lawyer had argued and won. My lawyer was able to show very quickly that the other lawyer's citation did not at all mean what she claimed it meant.

It was clear from the other lawyer's face that she had not realised my lawyer's connection to the case.

Ahhhhhh, there's nothing like the sight of your opponent's lawyer red faced in the court room to give you confidence in your own side...

 

[Donjeta]

Bunch wrote earlier in the petition to abate the divorce case:

"Further, it is likely that the resolution of custody and parenting time will require an evaluation by a competent psychologist. [snip] ...it is evident that the evaluator and his or her work product could become a part of the investigation which would completely disrupt the evaluation process. It is unlikely that any competent evaluator would agree to work on this matter in those circumstances."

[ame="http://www.scribd.com/doc/35057206/Declaration-to-Hold-Terri-Horman-Divorce-in-Abatement"]Declaration to Hold Terri Horman Divorce in Abatement[/ame]

Now Bunch says that they're going to ask for a resolution in regards to parenting time and file for visitation.

Bunch says If judge abates (delays divorce case), he will ask for restraining order changed to allow some visitation. “It’s not in K’s interest to not have contact with her mother… she’s not interested in abandoning her child.”

http://www.katu.com/news/local/104507829.html

Question:
How does he overcome his earlier assertion that it's impossible to determine parenting time issues now that they have decided to want it determined?

Has he changed his mind and think that parenting time could be resolved without any evaluation by a competent psychologist? Has he realized that his earlier assertion is wrong and Terri's situation wouldn't disrupt the process?
Has he found out that competent evaluators work in those circumstances anyway? Is he willing to settle for an incompetent evaluation?

What is he proposing to do?

 

[Billylee]

I could be all wrong here, but in the first example isn't he talking about the divorce and "custody". Those won't take place until January (if they do then). But getting the RO revised so TH can have "visitation", is not addressing custody, is it?

 

[Donjeta]

He's talking about both custody and parenting time and visitation has to do with parenting time IMO.

 

[germaine]

Well, he persuaded the judge. So I guess that's all that matters.

personally, I think the Judge did what he intended to do the entire time, and I don't see a 3 mos. abatement as a huge win. More of a safe approach under the circumstances of the case -- but you already know that from the 2-years requested or not posts lol

 

[germaine]

Bunch wrote earlier in the petition to abate the divorce case:


Declaration to Hold Terri Horman Divorce in Abatement

Now Bunch says that they're going to ask for a resolution in regards to parenting time and file for visitation.


http://www.katu.com/news/local/104507829.html

Question:
How does he overcome his earlier assertion that it's impossible to determine parenting time issues now that they have decided to want it determined?

Has he changed his mind and think that parenting time could be resolved without any evaluation by a competent psychologist? Has he realized that his earlier assertion is wrong and Terri's situation wouldn't disrupt the process?
Has he found out that competent evaluators work in those circumstances anyway? Is he willing to settle for an incompetent evaluation?

What is he proposing to do?

I posted a Bunch quote from yesterday earlier today, maybe in the poll thread, that leads me to believe they're going to try to do it by agreement. That quote, coupled with KH's comment that he might allow it under the right circumstances (paraphrased) make me think that's the case. jmoo

 

[grandmaj]

This could be legal posturing too. Bunch puffing up his chest. He has to try to make Terri look good and it was huge that she didn't contest the RO. MOO

 

[1Chump]

I'm not an attorney but IMO the mere fact that Bunch had to admit that they would advise Terri to assert her rights under the Fifth Amendment, and that there are areas in which she may incriminate herself if the divorce moved forward is a huge red flag.

How could she incriminate herself if she has not lied, been a party to the matters she is accused of, or participated in some way of disappearing Kyron?

Admitting that your client could possibly incriminate herself in a pending criminal proceeding is big! :cow:

IMO, not a big deal. When pleading the 5th, you are not stating answering "will" incriminate you but answering "may" incriminate you.. As the Miranda Warning states "anything you say can and will be used against you."

IMO, Teri's attorneys have made the argument that LE is providing information to Kaine's attorney in the divorce case to help with their investigation of a potential criminal case against Terl.

IMO, Teri has the right to not speak with LE. By LE working with Kaine's attorneys, they are attempting to get around Teri's rights. Therefore, if Teri testifies to anything in the divorce case, it can and will be used against her.

IMO, any potential criminal case will most likely be a circumstantial case. That means that the prosecutor will have a "theory." Teri testifying will give them an opportunity to fit their theory to her testimony. That could be the difference between guilt and acquittal.

IMO, the best example of fitting something to a theory is Teri's timeline. LE never mentioned a potential accomplish until after they confirmed Teri's timeline. IMO, Teri's timeline was too tight to fit their theory so they changed their theory to fight her timeline, ie she had help so she could create an alibi.

IMO, as long as Teri is facing a potential criminal trial, her attorney will and should have her plead the 5th on any and every question. It is not a matter of guilt but protecing her rights. Again, anything she says can be used against her. Therefore, she should respond by stating "I refuse to answer on the grounds it may incriminate me."

 

[Kat010]

IMO, not a big deal. When pleading the 5th, you are not stating answering "will" incriminate you but answering "may" incriminate you.. As the Miranda Warning states "anything you say can and will be used against you."

IMO, Teri's attorneys have made the argument that LE is providing information to Kaine's attorney in the divorce case to help with their investigation of a potential criminal case against Terl.

IMO, Teri has the right to not speak with LE. By LE working with Kaine's attorneys, they are attempting to get around Teri's rights. Therefore, if Teri testifies to anything in the divorce case, it can and will be used against her.

IMO, any potential criminal case will most likely be a circumstantial case. That means that the prosecutor will have a "theory." Teri testifying will give them an opportunity to fit their theory to her testimony. That could be the difference between guilt and acquittal.

IMO, the best example of fitting something to a theory is Teri's timeline. LE never mentioned a potential accomplish until after they confirmed Teri's timeline. IMO, Teri's timeline was too tight to fit their theory so they changed their theory to fight her timeline, ie she had help so she could create an alibi.

IMO, as long as Teri is facing a potential criminal trial, her attorney will and should have her plead the 5th on any and every question. It is not a matter of guilt but protecing her rights. Again, anything she says can be used against her. Therefore, she should respond by stating "I refuse to answer on the grounds it may incriminate me."

Brilliant post. Thanks so much.

 

[Kat010]

Here's a link to the background of the Miranda warning and the text:

http://www.usconstitution.net/miranda.html

An out-take:


"
The Constitution reserves many rights for those suspected of crime. One of the fears of the Framers was that the government could act however it wished by simply saying an individual was a suspected criminal. Many of the rights in the Constitution and the Bill of Rights, such as habeas corpus, the right to remain silent, and the right to an attorney, are designed to ensure that those accused of a crime are assured of those rights.
Police were able to take advantage of the fact that not everyone knows their rights by heart. In fact, it is likely that most citizens could name a few of their rights as accused criminals, but not all of them. The police's position was that if the accused, for example, spoke about a crime without knowing that they did not need to, that it was the person's fault for not invoking that right, even if they did not know, or did not remember, that they had that right."

And here's the cited example of a basic warning:

"
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense."

bbm

 

[grandmaj]

I understand that it doesn't mean she will incriminate herself but possibly incriminate herself. So then my next question in reasoning is "What does she have to hide?"

If Terri Horman has nothing to hide she need not assert her rights under the Fifth Amendment. If she wasn't holding back information, if she has not hired the landscaper, if she has not lied, if her timeline is right, if she didn't hurt Kyron, what is the problem with her testifying? She could go through the divorce proceeding tell the truth and not worry about the criminal case.

Unless she has some reason to not tell the truth. Only then would she possibly incriminate herself. MOO

There is no reason to assert your right not to speak unless you have something to hide. MOO

Interesting... that Terri's Attorney feels she could possibly incriminate herself.

 

[pufnstuf]

Here's a link to the background of the Miranda warning and the text:

http://www.usconstitution.net/miranda.html

An out-take:


"
The Constitution reserves many rights for those suspected of crime. One of the fears of the Framers was that the government could act however it wished by simply saying an individual was a suspected criminal. Many of the rights in the Constitution and the Bill of Rights, such as habeas corpus, the right to remain silent, and the right to an attorney, are designed to ensure that those accused of a crime are assured of those rights.
Police were able to take advantage of the fact that not everyone knows their rights by heart. In fact, it is likely that most citizens could name a few of their rights as accused criminals, but not all of them. The police's position was that if the accused, for example, spoke about a crime without knowing that they did not need to, that it was the person's fault for not invoking that right, even if they did not know, or did not remember, that they had that right."

And here's the cited example of a basic warning:

"
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense."

bbm

Most people who go through divorces--no matter how nasty--don't have to worry about Miranda rights, as most have not kidnapped and disposed of their stepchild.

All my opinion.