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

[debs]

Wise words that Terri should heed:

Our lives begin to end the day we become silent about things that matter.
~Martin Luther King

(What matters is the disappearance of a helpless, 50 lbs, legally blind child; not Terri Horman's desires.)

But within the law, the only words Terri can live by is "No person... shall be compelled in any criminal case to be a witness against himself."

It is almost as though Terri's child was taken away from her in order to force her into confessing to having committed crimes. That was the reason for this Amendment, to prevent the Government from doing this to its citizens. If Terri is indeed guilty, forcing her to testify in this way only assures that whatever she says will later on be thrown out.

I can't imagine anyone wants that.

 

[AnaTeresa]

Because anything she said could be used against her.

Terri's position is basically "stuck." The civil litigation really can't move forward until the criminal litigation has gone because anything she says in the civil trial could be used against her. Given that there's not enough evidence to even bring this case to trial at this time places her in an untenable situation.

Right now, regardless of personal feelings, she's presumed innocent under the law - which makes the civil/criminal gridlock all the more frustration. Unfortunately, there's not much her lawyer can do for her - if she's innocent, but the police have focused their case entirely on her (see: Riley Fox), she could be railroaded. Until there's movement on the criminal case, I don't see how this can be successfully resolved, since it can all be used against her later.

 

[Pensfan]

But within the law, the only words Terri can live by is "No person... shall be compelled in any criminal case to be a witness against himself."

It is almost as though Terri's child was taken away from her in order to force her into confessing to having committed crimes. That was the reason for this Amendment, to prevent the Government from doing this to its citizens. If Terri is indeed guilty, forcing her to testify in this way only assures that whatever she says will later on be thrown out.

I can't imagine anyone wants that.

Start imagining.
Our national security has been known to trump one individual's civil rights and I believe our communities' security should also be able to trump one individual’s civil rights. The community must be secure for the protection of its weakest members.

 

[germaine]

Actually, my quote said "should just submit to having her rights violated." I didn't suggest they are right now; just that people believe she should submit to having them violated.

well, semantically speaking, if she submitted to it, that would be a waiver of her rights, not a submission to a violation of her rights. At most, I think people are suggesting that she should either waive her rights or, if not, accept the consequences, including not being able to have any contact with baby k and what that seems to say about her guilt or innocence.

 

[germaine]

But within the law, the only words Terri can live by is "No person... shall be compelled in any criminal case to be a witness against himself."

It is almost as though Terri's child was taken away from her in order to force her into confessing to having committed crimes. That was the reason for this Amendment, to prevent the Government from doing this to its citizens. If Terri is indeed guilty, forcing her to testify in this way only assures that whatever she says will later on be thrown out.

I can't imagine anyone wants that.

2nd bbm~

In that case, you'd think she'd jump at the chance to testify, yet she hasn't. As we've heard from her attorneys', th will not testify "forced" or otherwise.

 

[gardeness]

Start imagining.
Our national security has been known to trump one individual's civil rights and I believe our communities' security should also be able to trump one individual’s civil rights. The community must be secure for the protection of its weakest members.

I am not following this line of reasoning. Who would want a potential criminal's testimony to be thrown out?

 

[gwenabob]

I am not following this line of reasoning. Who would want a potential criminal's testimony to be thrown out?

The potential criminal.

 

[AnaTeresa]

I am not following this line of reasoning. Who would want a potential criminal's testimony to be thrown out?

My interpretation is that Pensfan is arguing for a removal of the 5th Amendment rights against self-incrimination, as well as the procedural rules of evidence on what statements are allowed to presented in trial.

This doesn't make sense given Pensfan's later statement that the community must be secure for its weakest members. These rules were put in place to protect the weaker members of society from the stronger judicial branch. Some of these members are guilty of crimes and some are not - but these protections are put into place because they are in a weaker position. I understand what Pensfan is trying to say in the original statement, but I think it's ultimately a narrow view of our judicial system.

Just my opinion. :twocents:

 

[debs]

well, semantically speaking, if she submitted to it, that would be a waiver of her rights, not a submission to a violation of her rights. At most, I think people are suggesting that she should either waive her rights or, if not, accept the consequences, including not being able to have any contact with baby k and what that seems to say about her guilt or innocence.

Semantics aside, but what you have just said here is exactly the reason the Fifth Amendment exists.

2nd bbm~

In that case, you'd think she'd jump at the chance to testify, yet she hasn't. As we've heard from her attorneys', th will not testify "forced" or otherwise.

Again, to testify is to incriminate (regardless of guilt or innocence).

 

[debs]

The potential criminal.

Then it would serve well to be forced into testifying against oneself, and would never serve justice if the other side really wants justice at all.

 

[gardeness]

The potential criminal.

Right. She is forced to testify, then her testimony is thrown out because it violated her rights...if she is truly guilty, she gets off... Why would anyone *besides* (a guilty) Terri want this scenario?

 

[SurfieTX]

Debs, do you think it is in everyone's best interest in this situation to grant the divorce abatement for up to 2 years in order to protect Terri's rights? Also, as far as the restraining order goes and parenting time, what do you think would be the best judicial avenue to address this (again in reference to protecting Terri's rights)? The restraining order will expire in July, at which point it will have to be re-newed, custody arrangements made between Terri and Kaine or the divorce will have to be final.

ETA: I can't remember how long the RO stays in place. Is it one year or two?

 

[germaine]

Semantics aside, but what you have just said here is exactly the reason the Fifth Amendment exists.



Again, to testify is to incriminate (regardless of guilt or innocence).

I'm having trouble following your reasoning, and that is making it difficult for me to respond. So I'll just stand by my original posts and we can agree to disagree.

 

[Pensfan]

Then it would serve well to be forced into testifying against oneself, and would never serve justice if the other side really wants justice at all.

Law abiding citizens are tired of living in fear from murderers. Those highly suspected of murdering others should not be protected by the same civil rights as those not suspected of being a murderer.

America needs a Loyalist Act (similar to the Patriot Act). This act would enhance the ability of community law enforcement services to end community “terrorism”.

Establishing the components of the Loyalist Act is way above my pay grade. Should an act like this be proposed, I will support my representatives in accepting it.

 

[germaine]

Right. She is forced to testify, then her testimony is thrown out because it violated her rights...if she is truly guilty, she gets off... Why would anyone *besides* (a guilty) Terri want this scenario?

No one...ergo, if TH is being forced into violating her rights by KH, as has been suggested, she should be on the stand in a NY minute...ergo, her rights are not being violated and the suggestion that they are, is the faulty premise for the whole discussion.

 

[AnaTeresa]

Right. She is forced to testify, then her testimony is thrown out because it violated her rights...if she is truly guilty, she gets off... Why would anyone *besides* (a guilty) Terri want this scenario?

Still in law school here, so this may need to be taken to the verified lawyers thread - I'm not sure her testimony would be thrown out. If it came to the point where she testified, she would either plead the 5th for anything incriminating, and testify to anything else that her attorneys do not find self-incriminating.

However, all that testimony where she doesn't plead the 5th could be used in the criminal trial. As far as I'm aware, it wouldn't be thrown out for procedural reasons. My understanding is that the situation is unfair, but not unconstitutional, as of yet. Now, if more comes out about the evidence presented to Kaine by LE as fabrication, or if the civil litigation was done as a tactic to obtain incriminating evidence, then it may turn into a constitutional rights issue.

Again, best to ask a real lawyer for a better understanding. I'm not a lawyer, I just play one in class. :innocent:

 

[AnaTeresa]

Law abiding citizens are tired of living in fear from murderers. Those highly suspected of murdering others should not be protected by the same civil rights as those not suspected of being a murderer.

America needs a Loyalist Act (similar to the Patriot Act). This act would enhance the ability of community law enforcement services to end community “terrorism”.

Establishing the components of the Loyalist Act is way above my pay grade. Should an act like this be proposed, I will support my representatives in accepting it.

Two words: Riley Fox.

 

[debs]

No one...ergo, if TH is being forced into violating her rights by KH, as has been suggested, she should be on the stand in a NY minute...ergo, her rights are not being violated and the suggestion that they are, is the faulty premise for the whole discussion.

Right. "Testify or we keep your child from you indefinitely." The Fifth Amendment was created to protect a citizen from its government's stronger position from confessing or being forced to testify against their selves. So while she would get on the stand, it is under threat of keeping her child from her indefinitely, which makes it a coerced statement, which will never be admitted.

 

[AnaTeresa]

Right. "Testify or we keep your child from you indefinitely." The Fifth Amendment was created to protect a citizen from its government's stronger position from confessing or being forced to testify against their selves. So while she would get on the stand, it is under threat of keeping her child from her indefinitely, which makes it a coerced statement, which will never be admitted.

But, it's testimony in a separate civil action. I think you'd have to prove that LE is behind Kaine's legal maneuvering in the civil case, which would be difficult. I agree with you in concept, I'm just not sure if procedurally, it would be counted as coercion, given that it's a separate action.

 

[BeanE]

Law abiding citizens are tired of living in fear from murderers. Those highly suspected of murdering others should not be protected by the same civil rights as those not suspected of being a murderer.

America needs a Loyalist Act (similar to the Patriot Act). This act would enhance the ability of community law enforcement services to end community “terrorism”.

Establishing the components of the Loyalist Act is way above my pay grade. Should an act like this be proposed, I will support my representatives in accepting it.

Take away the rights of people who are just even suspected? Not even charged? Or tried or convicted?

Dear God. Count me out.