Holly Bobo, missing from TN 2014 discussion #3 ***ARREST***

[SteveS]

Could be right but could also be thrown out on legal questions, particularly on the issue of whether or not the Court can even hear such a lawsuit. So it is possible for the entire lawsuit to be thrown out without having to show Shayne was not truthful. In other words, it's like saying we don't even have to get to the point of determining his truthfulness because the Court doesn't even have the jurisdiction or authority to hear this lawsuit.

Are we saying that the police and prosecutors can do whatever they dang well want in this country, without having to answer to the courts? They get to be judge and jury over their own actions and contracts, and decide unilaterally what limits they do and don't have?

I doubt you think that, but that's what they are arguing if they are saying the court doesn't have jurisdiction over the immunity agreement they signed. It's a contract, so it's a matter of contract law. Legal precedent doesn't allow them to just unilaterally void it. That's one reason we have judges and courts, to be the people to decide such matters.

 

[SteveS]

It may sound like I'm trying to advocate for SA in this matter. That's not the case. But I am very much a believer in people being treated fairly under the law, and not being abused by the governmental workers, because I've been on the receiving end of that "we can do whatever we want, we own this city, laws be damned" attitude by government and it's nasty, wrong, and traumatic to have to fight.

I certainly don't know what SA did or didn't do. But whatever it is, the legal process needs to be required to run its course in a fair and just manner. That protects not only him, but the rest of us if we get unfairly accused some day.

 

[reedus23]

It's not hogwash.

The prosecution executed a binding contract with SA, and they can't simply declare that they won't honor the contract. That would subject SA to being locked up, and having to mount a legal defense, for things he was granted immunity on.

Legal precedent favors SA and his attorney. The law requires the prosecution to honor the contract they made.

The process imo will likely lead to a RO that keeps the government from yanking the immunity agreement unilaterally. The prosecution can get rid of the immunity agreement, of course, but they have to prove that SA didn't perform. The burden of proof is on them to go to court and prove breach of contract (over the benefit of the doubt to SA), if they want to void it. They certainly have not done that.

If you wish, read the argument for yourself:
http://www.scribd.com/doc/221108680/Complaint-Austin-v-TN

I've read the lawsuit. I'm not saying the arguments presented are hogwash. I'm saying the lawsuit is hogwash. Maybe Tennessee laws are different and allow for. I could be wrong. I have tried to find something to support their lawsuit, but everything I found seeking to enforce immunity agreements were within the context of a Motion to Dismiss criminal charges, not in the form of a lawsuit brought trying to prevent the charges from being brought in the first place. I would love to see the legal precedent you referred to that supports such a lawsuit because it's a new one to me.

I don't disagree in general with the rest of the analysis. Austin has to establish that there was an immunity agreement (I would imagine that would be stipulated) and the burden then shifts to the state to establish why the immunity agreement is void.

 

[reedus23]

Are we saying that the police and prosecutors can do whatever they dang well want in this country, without having to answer to the courts? They get to be judge and jury over their own actions and contracts, and decide unilaterally what limits they do and don't have?

I doubt you think that, but that's what they are arguing if they are saying the court doesn't have jurisdiction over the immunity agreement they signed. It's a contract, so it's a matter of contract law. Legal precedent doesn't allow them to just unilaterally void it. That's one reason we have judges and courts, to be the people to decide such matters.

Not saying that at all. There are civil suits filed every day against police departments for wrongful actions. The unfortunate part of those civil lawsuits is that they are reactionary instead of proactive. In other words, they are filed after a person has been wrongfully incarcerated.

They also aren't saying they get to be judge and jury over their own actions and contracts. They are just saying it is an improper forum for hearing these arguments. Like I previously posted, I was able to find numerous occasions when dismissal of charges were sought because of an immunity agreement. But they were all in that form, a motion to dismiss, not in a separate lawsuit.

I think we are saying the same thing. There are judges and courts that have every right to make the determination of whether or not there is an enforceable immunity agreement. But it's the court/judge before whom charges are brought, not in some separate lawsuit that tries to preempt the prosecuting attorney's authority to determine when and against whom charges should be brought.

 

[reedus23]

It may sound like I'm trying to advocate for SA in this matter. That's not the case. But I am very much a believer in people being treated fairly under the law, and not being abused by the governmental workers, because I've been on the receiving end of that "we can do whatever we want, we own this city, laws be damned" attitude by government and it's nasty, wrong, and traumatic to have to fight.

I certainly don't know what SA did or didn't do. But whatever it is, the legal process needs to be required to run its course in a fair and just manner. That protects not only him, but the rest of us if we get unfairly accused some day.

I don't take it as you advocating one way or the other as far as Austin is concerned. And I don't disagree with you about the attitude that some exhibit. I also agree that the legal process needs to run its course in a fair and just manner for everyone, including SA. All I'm saying is that all of those arguments and all those determinations that need to be made, will be made, just not in a lawsuit before charges are brought. Those kind of arguments and decisions are made by a judge (not police or prosecuting attorneys) after charges are filed. I have just never seen or heard of a lawsuit being brought prior to charges being filed.

Again, Tennessee may do things differently or I may be completely wrong and if there is some precedent for allowing it, I truly would like to read it.

 

[SteveS]

1 You may be right over the proper venue, but imo their lawsuit makes an interesting point.

It says that SA's contractual rights were violated the moment that the prosecution sent the letter asserting he didn't have immunity. And that part of what SA bargained for is the peace of mind to know that he doesn't have some sort of legal peril hanging over his head.

If you see how that could be true, then the idea of him having to wait until they actually file charges against him is superseded by his need to get it resolved where he can go about his life. That might be more than enough validity for the lawsuit.

2 It would be interesting to know if other cases that were settled by a Motion to Dismiss were preceded by a letter asserting that the immunity was being revoked.

3 In any event, can we agree that when the prosecutor wrote that letter saying "I revoke your immunity," it was overstepping of legal authority to do so? That's the court's decision. Saying it was so, in writing, is somewhere between BS and abuse of authority I think.

 

[pearl]

It's not hogwash.

The prosecution executed a binding contract with SA, and they can't simply declare that they won't honor the contract. That would subject SA to being locked up, and having to mount a legal defense, for things he was granted immunity on.

Legal precedent favors SA and his attorney. The law requires the prosecution to honor the contract they made.

The process imo will likely lead to a RO that keeps the government from yanking the immunity agreement unilaterally. The prosecution can get rid of the immunity agreement, of course, but they have to prove that SA didn't perform. The burden of proof is on them to go to court and prove breach of contract (over the benefit of the doubt to SA), if they want to void it. They certainly have not done that.

If you wish, read the argument for yourself:
http://www.scribd.com/doc/221108680/Complaint-Austin-v-TN

BBM
I've read the immunity agreement several times. I respectfully disagree. The whole immunity agreement hinges upon SA being truthful to LE. It clearly states that it is null and void if it is determined he has been less than truthful or has lied. Either it will be kept in force if it is determined he has been truthful or it will not be kept in force if it is determined he has not been truthful or after further investigation determines he played an active role in the kidnapping and murder or if he furnished drugs for/to Holly.
He has not been charged with anything that I know of so his constitutional rights have not been violated. If he talked and the agreement is voided, then it is his problem if he misled or lied to investigators. He would have known that if they proved he lied or misled them that the immunity agreement would not hold up. Lying to or misleading investigators is a CHOICE a person makes; it is not foisted upon the person. IMO, if he did lie or mislead, I think he is either arrogant or lacking in common sense. This immunity agreement is a sweetheart of a deal.

 

[SteveS]

BBM
I've read the immunity agreement several times. I respectfully disagree. The whole immunity agreement hinges upon SA being truthful to LE. It clearly states that it is null and void if it is determined he has been less than truthful or has lied. Either it will be kept in force if it is determined he has been truthful or it will not be kept in force if it is determined he has not been truthful or after further investigation determines he played an active role in the kidnapping and murder or if he furnished drugs for/to Holly.
He has not been charged with anything that I know of so his constitutional rights have not been violated. If he talked and the agreement is voided, then it is his problem if he misled or lied to investigators. He would have known that if they proved he lied or misled them that the immunity agreement would not hold up. Lying to or misleading investigators is a CHOICE a person makes; it is not foisted upon the person. IMO, if he did lie or mislead, I think he is either arrogant or lacking in common sense. This immunity agreement is a sweetheart of a deal.

The points you make at the end are not in dispute - if he didn't live up to his part of the deal, there's no question he'll lose his immunity.

But the notes I've bolded above are ones I'd say have questions:

1 "he has immunity unless it's determined that he lied etc"

True, but the key point is that he HAS immunity "unless" rather than he has immunity "if." The key difference is, in an "unless" deal he gets the benefit of the doubt that he will perform, and for the immunity to go away, it has to be proven in court that he didn't perform.

There has been no such determination of non-performance made. The prosecution has made a claim that SA has not performed, but they are not the determiner, and have to prove it to a judge in order for him to lose his immunity. They have not done that.

Yet despite the fact there's been no determination that SA didn't perform, the prosecution has sent a letter saying they are revoking the immunity on their own say so. That's not their decision to make.

2 "He has not been charged with anything that I know of so his constitutional rights have not been violated."

There are more ways to violate someone's rights than by charging them unfairly. It looks to me like a due process issue, or a breach of contract, or a civil rights violation of equal protection. SA's atty is saying the letter itself violated his rights (in saying they had revoked his immunity, when they didn't have that right), we're demanding you prove what you claim or retract it, and I think he's correct.

 

[pearl]

My opinion only and I could be wrong.
The immunity agreement is between the district attorney's office and
SA. It was not issued in a court procedure. The district attorney bestowed immunity against various issues in return for SA agreeing to help the investigation and give truthful information. The district attorney has determined that SA did not live up to the agreement, therefore, the district attorney declared it null and void. In this situation, one side gives a little (or a lot as it may be) in order to get something it wants. Both sides are expected to do what they are supposed to do. If one side (SA) does not do what he is supposed to do, there is no agreement. There is no agreement because only one side followed the agreement. To think of it as not being correct to void the immunity would give SA the opportunity to tell them or show them whatever he deems to be correct. The withdrawing of the immunity agreement was not a decision that was made lightly. I'm sure the district attorney can prove without a doubt that SA's information was not what is was supposed to be. I am not a lawyer nor am I going to research case law even though I know how to do so. Too time consuming for me. If this court determines that SA is still entitled to this immunity, it will set legal precedent for other people to be able to enter into an immunity agreement, not live up to their part of the agreement, and get away with it. I brought up the fact that SA has not been charged yet for any crime so his constitutional rights have not been violated. The US Constitution is very specific about rights and privileges of an accused person. If SA has not been charged, these constitutional rights are not on the table.

 

[future criminologist]

Prescription drug abuse is a big problem in the entire country, not just TN. That is why the DEA is now monitoring pharmacies and doctors offices. As I am not aware of how far Holly had progressed in her nursing studies, I cannot speculate on her being involved in clinicals. However, as a retired (20+yrs.) health care professional, I can guarantee that nursing students do not have access to Rx pads.
By all accounts, Holly was a wonderful, loving and God fearing young woman. WS is one of the few forums where victims are not blamed nor do we taint their memories.
IMO

First of all, yes, I know that prescription drug abuse is a problem everywhere. I live in Massachusetts. Prescription drug abuse being a problem in Tennessee does not preclude it being a problem elsewhere. Second, I do not think her name is sullied in any way, nor am I blaming her for anything, in putting forth the possibility that someone who does not know the specifics of what she has access to, but knows she works or is training to work, in the medical field, would ask her to procure prescription drugs for her, or would try and get her involved in some way. There have been rumors on other forums that she was a drug informant of some kind; it is also known that she had relatives with drug problems. I am just putting together what is known and speculating a way in which she could have somehow been targeted by these people, because of what they perceived she knew, regardless of what she actually knew or whether she was involved in anything. I don't see this as victim blaming at all. This is a town in which drug-involved and non-drug involved people are going to cross paths, and it goes toward motive as to how/why Holly might possibly have been singled out. Gwyn mentioned the Tatrow case - which involved meth, retaliation and torture - in his press conference statements for a reason. Meth makes people paranoid, and perceive threats where there aren't any.

 

[goldiegirl]

I have a project for somebody. Hope this is okay to post. I followed every single post everywhere I could in the beginning, but "over there" is too overwhelming for me. If I could stomach it I would go back to the beginning and read it all, but I don't have the time. If anyone is interested, I will pay through PayPal if someone would take the time to print and mail me some of it. Ill be more specific in a message : )

 

[Little Jedi]

Seems like Autry is a REAL hunka hunka burnin' man!! LOL Sorry, I still kinda question Clints description, BUT, you're right....he'd definitely make no mistakes about this brute.

:floorlaugh:

I totally agree that Clint's description is debatable & shouldn't be relied upon.

But after seeing the size of Autry in the court footage I think the fact he is 'huge' counts him out as the person Clint saw walking away with Holly.

 

[SteveS]

- broken/edited and numbered into fewer smaller points to address by SS, with responses at the bottom -
1 The immunity agreement is between the district attorney's office and SA.

2 It was not issued in a court procedure.

3 a - The district attorney has determined that SA did not live up to the agreement,
b- therefore, the district attorney declared it null and void.

4 Both sides are expected to do what they are supposed to do.

5 If one side (SA) does not do what he is supposed to do, there is no agreement.

5 If this court determines that SA is still entitled to this immunity, it will set legal precedent for other people to be able to enter into an immunity agreement, not live up to their part of the agreement, and get away with it.

6 I brought up the fact that SA has not been charged yet for any crime so his constitutional rights have not been violated. The US Constitution is very specific about rights and privileges of an accused person. If SA has not been charged, these constitutional rights are not on the table.

1 Generally true, although one party to the agreement is the government in general, not just the DA's office

2 True. It was essentially a contract. You don't go to a court to execute a contract. [But a court is the very place you go to settle a dispute over one.]

3 a - Not true.
The DA has claimed that SA didn't live up to the agreement. But it's yet to be determined, because legally the DA doesn't have such a right. Legal precedent says so.
b - Yes, the DA has declared that - - despite the fact they have NOT taken any of the legal steps necessary.The state's requirement is to follow the required legal steps. It is known as "due process," and is mandated by the US Constitution. SA is not being given due process.

4 True

5 Not true. There was already an agreement, the moment it was signed by both parties. It can only be ended by doing so in a legal manner.
...This court will allow the DA to attempt to prove (as the law requires) the claim that SA did not live up to his part of the deal. If it can be proved, he will lose his immunity. If not, he won't. But the process will keep the DA from unlawfully depriving SA of due process, and of breaching their contract with him.

6 Not true. Just because the DA has followed the law in one area, does not mean they are no longer required to go by the book in another. They cannot strip him of the immunity already granted without taking their claim to court and having a judge rule in their favor, which they have not done.

PS - Keep in mind that this is not a case where SA did nothing. He talked at length, when they did the deal. Then the DA said, "We are not going to honor our deal, because we decided that's not good enough." Legal precedent - ie, the law - says they can't unilaterally do that. They have to PROVE he didn't live up to the agreement.

 

[SteveS]

Pearl, let me add as a followup that while I think SA atty makes valid points, the court can always disagree, and say that the DA was in their rights to do as they did.

Ironically, no matter what they say, the bottom line is that the situation still ends up in the same place: decided by a judge. Settling disputes of law is what they are there to do.

ETA
That having been said, if you read the court case that essentially outlines the duties on the state once they grant immunity, it seems like a total slam dunk to me that the DA is going to get slaughtered in court on this. Rather than a simple "because I said so" approach, once they grant immunity they have to go through hoops to undo the deal. Voiding immunity does require proof in court, and it's the highest legal standard - "beyond a reasonable doubt." The court case setting the law is very clear that the defendant granted immunity has every right to depend on that promise, and that the state has no right to pull it back without going to court and fully proving the non-performance BARD, and it can't be pulled back for something minor (ie, relatively immaterial). The law's attitude is that the defendant already talked, and they are owed what they bargained for.
http://www.google.com/url?sa=t&rct=...EtAX1r_eX8OVlsw&bvm=bv.66699033,d.b2k&cad=rja

 

[SteveS]

They also aren't saying they get to be judge and jury over their own actions and contracts. They are just saying it is an improper forum for hearing these arguments. Like I previously posted, I was able to find numerous occasions when dismissal of charges were sought because of an immunity agreement. But they were all in that form, a motion to dismiss, not in a separate lawsuit.

I think we are saying the same thing. There are judges and courts that have every right to make the determination of whether or not there is an enforceable immunity agreement. But it's the court/judge before whom charges are brought, not in some separate lawsuit that tries to preempt the prosecuting attorney's authority to determine when and against whom charges should be brought.

In working through this issue and the TN case law, my conclusion is that this case is likely to be different because of how the situation has unfolded.

My guess is that in those other cases you mention, the prosecution simply brought the charges, and then the defendant pulled out the "Get Out of Jail Free" card as a response.

In this case, there's no wait until charges get filed, because the letter itself is actionable.

What the state has done, in the letter, is called "breach of contract" - the DA made a contract, and then they broke it. The letter itself would be that breach. When that happens, the other person has the right to go to a court and enforce it. The court they chose is certainly the proper one for a case like that, and deciding "breach of contract" issues is definitely something for a court.

If the DA had not sent the letter, the situation would be quite different because the contract would not have been breached at this point.

 

[reedus23]

1 You may be right over the proper venue, but imo their lawsuit makes an interesting point.

It says that SA's contractual rights were violated the moment that the prosecution sent the letter asserting he didn't have immunity. And that part of what SA bargained for is the peace of mind to know that he doesn't have some sort of legal peril hanging over his head.

If you see how that could be true, then the idea of him having to wait until they actually file charges against him is superseded by his need to get it resolved where he can go about his life. That might be more than enough validity for the lawsuit.

2 It would be interesting to know if other cases that were settled by a Motion to Dismiss were preceded by a letter asserting that the immunity was being revoked.

3 In any event, can we agree that when the prosecutor wrote that letter saying "I revoke your immunity," it was overstepping of legal authority to do so? That's the court's decision. Saying it was so, in writing, is somewhere between BS and abuse of authority I think.

As to your 3rd point, I just don't know. I don't know how things are handled in Tennessee. In all honesty, in my experience, it's not unusual for the DA to simply revoke the immunity if they think the agreement was violated and file charges. Typically they let the defendant's attorney know first, whether on the telephone or email or letter. They usually don't just charge them out of the blue. Usually there is a back and forth with the DA saying your guy isn't living up to his end of the deal and defense counsel saying he is too and the DA saying no he's not and if that's your position we're revoking the immunity and charging him.

So I don't know if that's considered over stepping legal authority or and abuse of authority. I've tried to do a cursory search for an answer and nothing jumped out. I'm not saying that ultimately the DA gets to determine that. Ultimately those determinations are made by the judge determining if the charges should be dismissed. I would think that if one were able to file a restraining order to prevent the filing of charges, a defense attorney would do that in every single case if for no other reason than to buy his client time. The RO might not be based on an immunity agreement, but attorneys can be creative and they'd find some reason to file for a RO. There is just something about that that just doesn't sit right with me.

 

[reedus23]

In working through this issue and the TN case law, my conclusion is that this case is likely to be different because of how the situation has unfolded.

My guess is that in those other cases you mention, the prosecution simply brought the charges, and then the defendant pulled out the "Get Out of Jail Free" card as a response.

In this case, there's no wait until charges get filed, because the letter itself is actionable.

What the state has done, in the letter, is called "breach of contract" - the DA made a contract, and then they broke it. The letter itself would be that breach. When that happens, the other person has the right to go to a court and enforce it. The court they chose is certainly the proper one for a case like that, and deciding "breach of contract" issues is definitely something for a court.

If the DA had not sent the letter, the situation would be quite different because the contract would not have been breached at this point.

http://www.wlf.org/upload/103006RS.pdf

Here's a link to an interesting read on the issue. Unfortunately, what stemmed this article was the US Supreme Court's refusal to hear the case, but it gives some good background. In this case, agreement was reached with defendant. Defendant gave information. Others were indicted. DA then TERMINATES the agreement and threatens indictment. Defendant files for injunctive relief (RO type relief). Lower Court grants it. Appellate Court overturns the ruling saying that the lower Court had no jurisdiction to hear the case and Defendant must wait until he is indicted and then raise the issues. Defendant appeals to US Supreme Court who refuses to hear the case.

 

[jggordo]

IMO, the most interesting part of the immunity agreement is the date it was signed. It was signed on March 6, 2014. The searches had concluded by that date. It seems to me that LE would know whether Holly's body (or parts) had been found or not by that time. If they knew on the 6th that they had NOT found her body or parts in the location he indicated or had ever been there, and they had him sign the agreement anyway I believe that would be considered entrapment.

The way I read the agreement, it seems to me that they asked whether he was involved in the actual kidnapping, drugging or killing of Holly. He must have said no. Because they built it in that if they found evidence that he DID, then the deal is off the table.

I think his violation has to do with him lying about his involvement to the crimes themselves. TBI stated that they had "witnesses" at the PC. And anyone else involved should expect "a knock at your door" and "you know who you are". A direct message to Shayne I believe.

JMO's

http://www.scribd.com/doc/221108680/Complaint-Austin-v-TN

 

[OldSteve]

Someone questioned something about how/why the thugs who took Holly would make the leap from criminal activity to brutal murder.
In going back over Megan Sharpton's tragic brutal murder, I see the same pattern of repeated arrests and meth use before she was attacked. Some 23 felonies!

Here's a link to where this is mentioned in detail -
http://www.websleuths.com/forums/showthread.php?t=177602&highlight=megan+sharpton&page=8

ETA: Reading about Megan's mother picking up her daughters purse from the DA brought tears to my eyes :cry:

 

[pearl]

We will know in a couple weeks if the immunity agreement is null and void or still binding. I think our personal interpretation of the wording of the document is where we do not agree. My main points are:
1. The agreement required SA to be forthcoming and truthful about info he gave LE.
2. The agreement could be declared null and void if it was found that SA gave incorrect info or not all info.
3. The DA wants to null and void the agreement because of some reason that we do not know. I think it would be either the information he provided was untruthful and incorrect or, through further investigation, LE learned that SA had a more active role in the abduction and murder of Holly.
I believe that the DA has proof to support nullifying the agreement. I mean it pretty well states in the agreement the only things that could make it not binding. I really don't think the DA would take these steps to nullify the agreement if he did not have proof. We don't know what they have or don't have as it should be.
I don't find the signing of the agreement after the publicized search of ZA's property to be off. The search of ZA's property was heavily reported in the media. It is the only search that I know of. But, TBI said it was conducting multiple searches at different places. SA could have offered info that was meant for later searches when he saw that the tide was turning, so to speak. If you know of any other places that were searched, please tell where they were as I am curious.