GUILTY Bali - Sheila von Wiese Mack, 62, found dead in suitcase, 12 Aug 2014 #5

[Orange Tabby]

FigTree, as I see it there are essentially two steps in a Slayer Rule finding:

1. Does the criminal conviction meet the statutory definition of a triggering crime? If yes, analysis over, Slayer Rule applies.

2. If the criminal conviction does not meet the definition of the statute, you can hold a civil hearing.

As to step one:

--Tommy was found guilty of first degree murder. Heather was found guilty of something different from Tommy. I'm guessing that Cohen ruled at some point that Heather's conviction did not comport with first degree murder as contemplated by the Illinois statute.

--I'm not sure your Wiki definition of first degree murder is the right one to quote. It's generic. What's applicable is the Illinois law.

--If Illinois law has a separate charge for accessory to murder, this would help in understanding Cohen's ruling. Because if such a law exists and it is not listed as automatically triggering the Slayer Rule, then Cohen seems to be right that a separate hearing is required.

All this is distinct from the question of whether Heather will be found, via this separate hearing, to be subject to the Slayer Rule.

Under a separate hearing, I'm guessing different things could happen:

1. Analysis of her conviction.

2. Evidence is presented to support the claim that she intentionally and unjustifiably caused the death of Sheila.

In the first case, analysis like yours could be presented and if a finding was made that the actions she took and of which she was found guilty fit the Slayer Rule, then she's out of the money.

In the second case, it's longer and more complicated. It's an entire mini-trial.

All of this is guesswork, but my important point is this: analyzing her conviction is a part of a Slayer Rule hearing. Heather's lawyers would have chances to argue. It is not something automatic or something Cohen can simply decide over coffee.

Also, if they want to analyze the conviction, they presumably want to discuss the underlying evidence.

It's been argued here that Indonesian courts don't keep the same kind of detailed transcripts that American courts do. This may be the problem that has held things up for so long. After finally determining that they can't effectively analyze the trial because they have no reliable record, they have now decided to hold their own hearing. That's my guess.

Heather is pouting and saying she'd plead the Fifth. And that's where we stand.

 

[ajaylee]

I wonder what exactly is necessary for HM to 'finalize' arrangements for Stella to stay in Indonesia.

Almost since Stella was born, she's supposedly had a family willing to take care of Stella. I wonder if the Indonesians are requiring some kind of formal transfer. That would seem odd, because in the US it isn't a crime to leave your child in someone's care indefinitely, if all parties are agreeable. I can't see why Indonesia would have more stringent requirements, particularly for non-citizens, and generally, I'd expect them to defer to HM's wishes because she's the mother.

I wonder if there's a holdup because the family who was willing to take Stella wants an upfront financial arrangement.

 

[watergirl62]

Hmmmmm...
Check out the decision linked here: In re ESTATE OF IRENE OPALINSKA

http://lawprofessors.typepad.com/tr...inois-slayer-statute-application-unclear.html



Another link from the same site:
http://www.wealthmanagement.com/estate-planning/public-policy-and-boomerang-inheritance?page=2



Also case 3 (Willingham v. Matthews) discussed here:
http://www.gsrnh.com/item/murder-most-foul-visiting-the-slayer-statute-in-illinois

 

[SouthAussie]

Hmmmmm...
Check out the decision linked here: In re ESTATE OF IRENE OPALINSKA

http://lawprofessors.typepad.com/tr...inois-slayer-statute-application-unclear.html



Another link from the same site:
http://www.wealthmanagement.com/estate-planning/public-policy-and-boomerang-inheritance?page=2



Also case 3 (Willingham v. Matthews) discussed here:
http://www.gsrnh.com/item/murder-most-foul-visiting-the-slayer-statute-in-illinois

Great examples! Yes, It looks like a big legal battle will happen over this slayer statute issue.

 

[SouthAussie]

My blue bold...
Just need a clarification....
What are the current disbursements to Heather? - or are the disbursements actually to/for Stella?

RSBM

Are there any current disbursements? Two years ago Cohen stated ......

He said Mack's request for more money is not an emergency and he won't release another penny until he holds a hearing to determine if she still is entitled to her trust fund now that she has a criminal conviction.
http://www.chicagotribune.com/news/...i-heather-mack-appeal-met-20150506-story.html

 

[FigTree]

Orange Tabby - thankyou for clarifying my over simplification. I know its complicated, but it does make me think there's a reason for the time passing and things not seemingly moving - I think they are but with some form of precision and synchronicity.
And watergirl62 - they are great examples, thank-you for posting them!
And SouthAussie - everything pointed to that and yet I was wondering where the money for lawyers and the supplies were coming from.
Ans ajaylee - in 3 weeks and 4 days we'll know. The 17th is coming up fast - its a Friday.

 

[Orange Tabby]

One thing I've always wondered is whether Heather's arrangement with Mr. Ary included a kickback agreement. One guess: 20 percent.

So Mr. Ary tells her if she gets $150,000 paid to him, she will receive 1/5 of it back in monthly installments, delivered in cash to her at Kerobokan.

For a ten year sentence, this is $250 a month (assuming zero interest). If Mr. Ary invests the money for her, it would be a bit more per month.

While that's roughly $8.20 a day, many people have posted here details of how cheap it is to live in Bali. I will leave it to them to conclude what bang Heather could get for her buck, even paying someone to do the fetching.

Consider also that as long as she has Stella, she's probably continuing to get free perks from volunteer aid groups. When Stella leaves, she may get nothing for free. Her eight bucks will have to purchase all her daily "needs."

===============

I do the math:

$150,000 x 0.20 = $30,000

$30,000 divided by 10 years = $3,000

$3,000 divided by 12 months = $250

 

[Orange Tabby]

Of course this entirely imaged and speculative idea that Heather has gotten kickbacks from Mr. Ary could have been configured in a way far less advantageous to her.

Maybe this speculative kickback was only ten percent (half of what I imagined in my previous post).

Maybe there is no fixed payout and she can draw on it as she likes. This would be a real stinger, because left to her own devices, she would not keep to a budget.

How many phones has she purchased since landing in Kerobokan? How many luxuries has she indulged in? Drugs?

Anything above and beyond food and the occasional bottle of nail polish would contribute to depleting her account before her prison term is up.

If this situation I imagine really exists, it means that in a year or two or three Heather will come crashing down, realizing there is no more money to be had. Unless she manages to squeeze it out of money for Stella's living expenses.

But to be honest, I don't think Heather will truly begin to pay for her crime until she's out of Hotel K, deported from Bali, and put on trial in US federal court.

Sad, but I fear true.

 

[Kamille]

Hmmmmm...
Check out the decision linked here: In re ESTATE OF IRENE OPALINSKA

http://lawprofessors.typepad.com/tr...inois-slayer-statute-application-unclear.html



Another link from the same site:
http://www.wealthmanagement.com/estate-planning/public-policy-and-boomerang-inheritance?page=2



Also case 3 (Willingham v. Matthews) discussed here:
http://www.gsrnh.com/item/murder-most-foul-visiting-the-slayer-statute-in-illinois

Great examples, thanks for those watergirl62. I think we talked about some of those issues right near the beginning when we were trying to figure out, if the case is treated as if HM predeceased SVM, then there is no HM heir at that time. But it does appear as though everyone in the chancery court is in agreement that Stella will be the heir to the trust should HM be found responsible for the death of her mother.

I wonder if the fact that SVM also made the provision that the heir would have to go through a trustee until they were 30 has any bearing on that?

:waitasec:

MOO

 

[Kamille]

Found this in the Illinois Criminal Code regarding "accesories" or as they call it "parties to crime"...

CRIMINAL OFFENSES
(720 ILCS 5/) Criminal Code of 2012.

(720 ILCS 5/Art. 5 heading)
ARTICLE 5. PARTIES TO CRIME

(720 ILCS 5/5-1) (from Ch. 38, par. 5-1)
Sec. 5-1. Accountability for conduct of another. A person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself, or that of another and he is legally accountable for such conduct as provided in Section 5-2, or both.
(Source: Laws 1961, p. 1983.)

(720 ILCS 5/5-2) (from Ch. 38, par. 5-2)
Sec. 5-2. When accountability exists. A person is legally accountable for the conduct of another when:
(a) having a mental state described by the statute
defining the offense, he or she causes another to perform the conduct, and the other person in fact or by reason of legal incapacity lacks such a mental state;
(b) the statute defining the offense makes him or her
so accountable; or
(c) either before or during the commission of an offense, and with the intent to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or commission of the offense.

"When 2 or more persons engage in a common criminal design or agreement, any acts in the furtherance of that common design committed by one party are considered to be the acts of all parties to the common design or agreement and all are equally responsible for the consequences of those further acts. Mere presence at the scene of a crime does not render a person accountable for an offense; a person's presence at the scene of a crime, however, may be considered with other circumstances by the trier of fact when determining accountability."

Lots more reading at the link. http://www.ilga.gov/legislation/ilc...&ChapterID=53&SeqStart=7200000&SeqEnd=7800000

 

[Kamille]

RSBM

Are there any current disbursements? Two years ago Cohen stated ......

He said Mack's request for more money is not an emergency and he won't release another penny until he holds a hearing to determine if she still is entitled to her trust fund now that she has a criminal conviction.
http://www.chicagotribune.com/news/...i-heather-mack-appeal-met-20150506-story.html

Well she's not over there living off nothing judging by what we've seen on her social media over the past couple of years. She has no family to support her so unless her attorneys are "kicking back" to her, as Orange Tabby suggested, or the "guardian family" are supporting her, there has to be some "allowance" being dispersed from the fund IMO.

 

[Kamille]

One thing I've always wondered is whether Heather's arrangement with Mr. Ary included a kickback agreement. One guess: 20 percent.

So Mr. Ary tells her if she gets $150,000 paid to him, she will receive 1/5 of it back in monthly installments, delivered in cash to her at Kerobokan.

For a ten year sentence, this is $250 a month (assuming zero interest). If Mr. Ary invests the money for her, it would be a bit more per month.

While that's roughly $8.20 a day, many people have posted here details of how cheap it is to live in Bali. I will leave it to them to conclude what bang Heather could get for her buck, even paying someone to do the fetching.

Consider also that as long as she has Stella, she's probably continuing to get free perks from volunteer aid groups. When Stella leaves, she may get nothing for free. Her eight bucks will have to purchase all her daily "needs."

===============

I do the math:

$150,000 x 0.20 = $30,000

$30,000 divided by 10 years = $3,000

$3,000 divided by 12 months = $250

I don't think AS would get involved in this type of thing. Strictly because I believe he's known over there for "getting things done" for the right amount of cash. He doesn't have to convince his clients by offering up anything once his job is done.

He was also begging Judge Cohen for expenses, including HM's hospital fees, after the trial was over so I don't think he'd bother doing that if he was holding any cash for her.

MOO

 

[Orange Tabby]

Great examples, thanks for those watergirl62. I think we talked about some of those issues right near the beginning when we were trying to figure out, if the case is treated as if HM predeceased SVM, then there is no HM heir at that time. But it does appear as though everyone in the chancery court is in agreement that Stella will be the heir to the trust should HM be found responsible for the death of her mother.

Yes, Kamille, you are one hundred percent correct.

Some elucidation:

1. Heather's so-called "pre-decease" if a Slayer Statute ruling comes against her is a legal fiction. It is not a universally-held concept. It applies only to Heather's inheritance rights, nothing else.

Imagine a slightly different case from the one we are discussing. A daughter murders her mother. After the murder she steals all of her mother's valuable jewelry, which under the dead woman's will, would have gone to her son. A Slayer Rule finding would not mean that the murderer would be able to keep the jewelry under an argument that she pre-deceased her mother and therefore could not have been the thief!

So strange as it may seem, Heather's "pre-decease" has no bearing on Stella.

2. The law has long recognized the existence of unborn heirs. I had some posts on this years ago and can look them up if someone asks me to. But my recollection is that going back as far as the Roman Empire there have laws which consider anyone conceived at the time of a relevant death to have already been born at the time of that death. Stella was "born" for legal purposes at the time of Sheila's murder. I know I had one or two legal cites specific to Illinois on this.

3. Sheila's trust explicitly names Heather's offspring as heirs if Heather is dead when Sheila dies.

There is absolutely no question that Stella gets the trust if Heather is found ineligible under the Slayer Rule.

I wonder if the fact that SVM also made the provision that the heir would have to go through a trustee until they were 30 has any bearing on that?

:waitasec:

MOO

No, Heather's heirs are explicitly named as beneficiary/beneficiaries. No analysis of any kind by a court is required.

 

[watergirl62]

I think your numbers are pretty close OrangeTabby, based on the request for $2,000 living expenses requested in her emergency motion, filed exactly a year after her initial petition (pdf in SouthAussie's link). Taking that number at face value for the moment.

$2000 ÷ 365 ~ $5.50 day.


Sent from my LG-H740 using Tapatalk

 

[SouthAussie]

Well she's not over there living off nothing judging by what we've seen on her social media over the past couple of years. She has no family to support her so unless her attorneys are "kicking back" to her, as Orange Tabby suggested, or the "guardian family" are supporting her, there has to be some "allowance" being dispersed from the fund IMO.

There are other ways of getting what you want in Kerobokan. From guards, men, other women.


Tommy Schaefer claims ex Heather Mack does drugs, drinks and has sex with other female prisoners while their daughter is close by
http://www.dailymail.co.uk/news/art...-speaking-time-conviction-letter-friends.html

.... sex and drugs are reportedly rampant among the 1015 inmates who include 60 foreigners ....
A former inmate who served four years at Kerobokan for a heroin conviction and wished to remain anonymous, said “room service” was not limited to food.
http://www.iol.co.za/news/world/inside-balis-hotel-kerobokan-1242692

 

[Orange Tabby]

I'm interested to know if folks on this board think Heather has access to money. If so, where do you think it comes from?

 

[Kamille]

Yes, Kamille, you are one hundred percent correct.

Some elucidation:

1. Heather's so-called "pre-decease" if a Slayer Statute ruling comes against her is a legal fiction. It is not a universally-held concept. It applies only to Heather's inheritance rights, nothing else.

Imagine a slightly different case from the one we are discussing. A daughter murders her mother. After the murder she steals all of her mother's valuable jewelry, which under the dead woman's will, would have gone to her son. A Slayer Rule finding would not mean that the murderer would be able to keep the jewelry under an argument that she pre-deceased her mother and therefore could not have been the thief!

So strange as it may seem, Heather's "pre-decease" has no bearing on Stella.

2. The law has long recognized the existence of unborn heirs. I had some posts on this years ago and can look them up if someone asks me to. But my recollection is that going back as far as the Roman Empire there have laws which consider anyone conceived at the time of a relevant death to have already been born at the time of that death. Stella was "born" for legal purposes at the time of Sheila's murder. I know I had one or two legal cites specific to Illinois on this.

3. Sheila's trust explicitly names Heather's offspring as heirs if Heather is dead when Sheila dies.

There is absolutely no question that Stella gets the trust if Heather is found ineligible under the Slayer Rule.





No, Heather's heirs are explicitly named as beneficiary/beneficiaries. No analysis of any kind by a court is required.

I was just going by the examples that were in watergirl's link. It seems that at one time, Stella would likely not receive the trust if it was determined that by giving it to her would benefit HM in any way. Which, considering HM's light sentence, would happen when Stella is still a minor child and therefore HM would have access to the funds.

MOO

 

[Kamille]

RSBM

Are there any current disbursements? Two years ago Cohen stated ......

He said Mack's request for more money is not an emergency and he won't release another penny until he holds a hearing to determine if she still is entitled to her trust fund now that she has a criminal conviction.
http://www.chicagotribune.com/news/...i-heather-mack-appeal-met-20150506-story.html

Well that was pretty much in response to AS's email. I'm sure he was not pleased at all by the request for an additional $200,000 for an appeal, quickly and in one payment. He had to have known at that point what the original funds bought her. He may have said "not one more penny" to her attorney's at the time, but I'm sure they went back to him again with a sob story of how Stella wasn't getting necessary food and supplies and he caved on sending some funds for that reason. But he of course never wavered on the money AS was seeking.

MOO

 

[Kamille]

There are other ways of getting what you want in Kerobokan. From guards, men, other women.


Tommy Schaefer claims ex Heather Mack does drugs, drinks and has sex with other female prisoners while their daughter is close by
http://www.dailymail.co.uk/news/art...-speaking-time-conviction-letter-friends.html

.... sex and drugs are reportedly rampant among the 1015 inmates who include 60 foreigners ....
A former inmate who served four years at Kerobokan for a heroin conviction and wished to remain anonymous, said “room service” was not limited to food.
http://www.iol.co.za/news/world/inside-balis-hotel-kerobokan-1242692

That article about Kerobokan is something else isn't it? I think we've seen some more recent news articles claiming that things have changed there since the new "warden" took over. Supposedly there is no more sex in the visiting area because it is claimed that the visits are between bars now. Then again, what the prison officials say is happening there and what is really happening don't always seem to match up do they? I wonder if HM will have to only see Stella between bars? Doubt it.

But the one thing that the article you posted makes clear is that you need cash in the prison to have all the perks. Otherwise its a miserable existance of living off the basic food and supplies provided by the prison. And unless you are running drugs in the prison, or selling something else, the only way to get it is from the outside. And we know that HM is getting pretty much all the perks listed in the article with the exception of perhaps a visit from a local prostitute. But it also appears that she doesn't need that because she appears to be bisexual. At least I guess she is now if she wasn't before she got there.

It does seem apparent that all the women, at least the ones she has had for cellmates, have cash. So I also would imagine they look out for each other. I don't think they would let "one of their own" suffer. They seem to share their things. I think TS would be more likely to see the bad side of the prison. And I have to assume that KW is sending him enough for him to get by at least. Although he certainly was complaining a lot more on social media. I guess on the men's side you can't be flaunting too much cash and have to stay low. Especially as a foreigner.

MOO

 

[Orange Tabby]

I was just going by the examples that were in watergirl's link. It seems that at one time, Stella would likely not receive the trust if it was determined that by giving it to her would benefit HM in any way. Which, considering HM's light sentence, would happen when Stella is still a minor child and therefore HM would have access to the funds.

MOO

The are two important cases in those posts: Opalinska and Mueller.

1. In Opalinska, a son-in-law murdered his mother-in-law. The murderer's wife was allowed to inherit after a Slayer finding against her husband.

The article goes on to say, "... the court held that the plain language of the Slayer Statute doesn’t support barring anyone other than the murderer from inheriting."

2. In Mueller, a wife killed her husband. Her two children by a previous marriage were alternate beneficiaries in the victim's will. While they were not allowed to inherit, it's worth noting:

--The alternate beneficiaries were not blood relatives of the murder victim. (That alone could be enough to distinguish this case from Heather and Stella.)

--The author reporting these two cases seems to believe that Opalinska could be found to overturn the analysis of Mueller.

The last link discusses three cases, Dougherty v Cole, Malbrough, and Willingham v Mathews. I don't think these are relevant to our case.