Holly Bobo, missing from TN 2014 discussion #4 ***ARRESTS***

[oceanblueeyes]

"So thus far no contract has been broken"... That would be true if the DA hadn't sent the letter. But once it was sent, there is no question under the law that the letter itself would be considered a breach of contract. A statement that "I don't intend to honor our contract" is a breach, and there would certainly be no difficulty in proving that such a declaration was made by the DA.

The only defense that the DA would have would be if SA had breached the contract first. So far, we have seen no evidence of that.

In order to prove he has breached his contract is to produce evidence and I can see why the DA would not want to show his cards to Austin's own defense attorney prematurely. This is such a rare event I don't see why the DA cant have an ex-parte meeting with the Judge in chambers with a transcript of what was said being given to the defense after Austin has been arrested and charged.

If I was the DA I wouldn't even try to rescind this particular immunity deal. It only covers accessory after the fact pertaining only to the disposal, concealment, and burial of Holly. I wouldn't even bring those charges.

Instead I would go with what is NOT covered in the immunity agreement whatsoever and if he has now uncovered evidence that Austin is much more deeply involved in the actual kidnapping and murder of Holly he needs to charge him with that charge since it would mean much more time served if he was found guilty.

There is no way the DT can stop the DA from charging him with other crimes that were not included in this immunity deal. It is not a one size fits all agreement. Maybe the DT should have thought about that before signing off on this deal.

The DA is right.......this deal doesn't preclude him from bringing other charges.

IMO

 

[oceanblueeyes]

"So thus far no contract has been broken"... That would be true if the DA hadn't sent the letter. But once it was sent, there is no question under the law that the letter itself would be considered a breach of contract. A statement that "I don't intend to honor our contract" is a breach, and there would certainly be no difficulty in proving that such a declaration was made by the DA.

The only defense that the DA would have would be if SA had breached the contract first. So far, we have seen no evidence of that.

There is absolutely no evidence that the DA has breached anything. Submitting a letter to rescind does not mean the DA has breached the contract. In fact it is his assertion that it was Austin who has breached his part of the immunity agreement. Simply filing a letter to rescind in no way means he has unlawfully breached anything. He has violated no law.

www.merriam-webster.com/dictionary/breach

Full Definition of BREACH 1 : infraction or violation of a law, obligation, tie, or standard 2 a : a broken, ruptured, or torn condition or area b : a gap (as in a ...

 

[SteveS]

In order to prove he has breached his contract is to produce evidence and I can see why the DA would not want to show his cards to Austin's own defense attorney prematurely. This is such a rare event I don't see why the DA cant have an ex-parte meeting with the Judge in chambers with a transcript of what was said being given to the defense after Austin has been arrested and charged.

If I was the DA I wouldn't even try to rescind this particular immunity deal. It only covers accessory after the fact pertaining only to the disposal, concealment, and burial of Holly. I wouldn't even bring those charges.

Instead I would go with what is NOT covered in the immunity agreement whatsoever and if he has now uncovered evidence that Austin is much more deeply involved in the actual kidnapping and murder of Holly he needs to charge him with that charge since it would mean much more time served if he was found guilty.

There is no way the DT can stop the DA from charging him with other crimes that were not included in this immunity deal. It is not a one size fits all agreement. Maybe the DT should have thought about that before signing off on this deal.

The DA is right.......this deal doesn't preclude him from bringing other charges.

IMO

While you make some good points, they actually do NOT add up to a reason to dismiss the SA lawsuit.

As you note, the immunity never covered the kidnapping or killing. So enforcing the immunity wouldn't harm any case on those charges, and wrangling over the immunity is a needless risk for the DA if that's where he's headed.

"I don't see why the DA cant have an ex-parte meeting with the Judge in chambers"....Has no chance of working, and would be begging for a nasty slap-down by higher courts if a judge went for it. It would be impossible to show that the state met its legal burden here of Proof Beyond a Reasonable Doubt, if the other side had no opportunity to examine and contest the supposed "proof" being offered.

 

[SteveS]

There is absolutely no evidence that the DA has breached anything. Submitting a letter to rescind does not mean the DA has breached the contract.

With all due respect, you really don't know what you're talking about here. This is first year law school stuff.

When it can be proven that a party to a contract stated they are not going to honor the contract, that in and of itself is legally a breach of contract. Ask any attorney you trust, if you don't believe me.*

As I said earlier, the DA can then attempt to prove that SA was the first to reach the contract. But as we sit, the DA is legally in breach of contract re that immunity agreement.





*Or, if you prefer, test it yourself. Send a letter to your mortgage company saying you are no longer going to pay your mortgage, or that you will not pay your property taxes any longer. But when you do, if you are in a non-judicial foreclosure state, get ready for the foreclosure notice. By that letter, you just breached your contract, and can be foreclosed - they do not have to wait for it to play out and incur more damage, but can move to remedy it for the breach that it is by foreclosing to protect their interest in the property.

 

[Suthrnqt]

With all due respect, you really don't know what you're talking about here. This is first year law school stuff.

When it can be proven that a party to a contract stated they are not going to honor the contract, that in and of itself is legally a breach of contract. Ask any attorney you trust, if you don't believe me.*

As I said earlier, the DA can then attempt to prove that SA was the first to reach the contract. But as we sit, the DA is legally in breach of contract re that immunity agreement.



<snipped>

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RSBM

So, is the reverse also true? (No snark intended) If SA didn't live up to the immunity agreement, did he breach the contract? I am just trying to understand, because I know absolutely nothing about this legal aspect. TIA

 

[dog.gone.cute]

Prosecutor Seeks Gag Order In Holly Bobo Case


Prosecutors have asked for a gag order in the case against one of the Holly Bobo kidnapping and murder suspects.

This request seemed to be the direct result of a NewsChannel 5 exclusive interview last week with Jason Autry, one of two people accused of kidnapping and murdering Holly Bobo.


http://www.newschannel5.com/story/25624421/prosecutor-seeks-gag-order-in-holly-bobo-case

 

[Suthrnqt]

Prosecutor Seeks Gag Order In Holly Bobo Case


Prosecutors have asked for a gag order in the case against one of the Holly Bobo kidnapping and murder suspects.

This request seemed to be the direct result of a NewsChannel 5 exclusive interview last week with Jason Autry, one of two people accused of kidnapping and murdering Holly Bobo.


http://www.newschannel5.com/story/25624421/prosecutor-seeks-gag-order-in-holly-bobo-case

I was wondering when this was gonna happen. :sigh:

 

[dog.gone.cute]

Prosecutor Seeks Gag Order In Holly Bobo Case

Inmates in segregation are not allowed to do interviews in the prison. Our interview was conducted by way of video conferencing.

The NewsChannel 5 crew was not at the prison.

...

A judge has not yet heard the motion for the gag order.


http://www.newschannel5.com/story/25624421/prosecutor-seeks-gag-order-in-holly-bobo-case

 

[Suthrnqt]

Prosecutor Seeks Gag Order In Holly Bobo Case

Inmates in segregation are not allowed to do interviews in the prison. Our interview was conducted by way of video conferencing.

The NewsChannel 5 crew was not at the prison.

...

A judge has not yet heard the motion for the gag order.


http://www.newschannel5.com/story/25624421/prosecutor-seeks-gag-order-in-holly-bobo-case

So much for Mr. Fletcher Long calling the shots. :floorlaugh:

 

[SteveS]

RSBM

So, is the reverse also true? (No snark intended) If SA didn't live up to the immunity agreement, did he breach the contract? I am just trying to understand, because I know absolutely nothing about this legal aspect. TIA

1 Yes, either side can breach the contract.
2 The sequence of who did it first certainly matters.
3 One key issue is the proof of breach - at this point, in the public domain we only have proof of a breach by the DA.
4 The remedy for a provable breach of contract is to take it to court and have the contract enforced, which is what SA has done.
5 If the DA wants to breach the contract without first taking it to court and proving that SA did it first, they can certainly do so ....
6 ....but from a contractual standpoint, then they must reply in court when confronted with their breach*.
7 In any event, at some point they must Prove Beyond a Reasonable Doubt to a court that the contract was initially and irrevocably breached by SA, not by their letter, if they hope to rescind their immunity contract to SA.





*I understand the italicized point is up for debate, and a court will ultimately make the final decision. But since it is a contractual matter, and that's the legal response to a breach by the other party, that's how I would interpret it. The other points, however, are not really in question, since they are basic contractual law and the TN Supreme Court has previously specified that that's what's applicable to an immunity agreement.

 

[Suthrnqt]

1 Yes, either side can breach the contract.
2 The sequence of who did it first certainly matters.
3 One key issue is the proof of breach - at this point, in the public domain we only have proof of a breach by the DA.
4 The remedy for a provable breach of contract is to take it to court and have the contract enforced, which is what SA has done.
5 If the DA wants to breach the contract without first taking it to court and proving that SA did it first, they can certainly do so ....
6 ....but from a contractual standpoint, then they must reply in court when confronted with their breach*.
7 In any event, at some point they must Prove Beyond a Reasonable Doubt to a court that the contract was initially and irrevocably breached by SA, not by their letter, if they hope to rescind their immunity contract to SA.





*I understand the italicized point is up for debate, and a court will ultimately make the final decision. But since it is a contractual matter, and that's the legal response to a breach by the other party, that's how I would interpret it. The other points, however, are not really in question, since they are basic contractual law and the TN Supreme Court has previously specified that that's what's applicable to an immunity agreement.

The Thanks button just wasn't enough. I appreciate you taking the time and effort to explain that to me. I think I understand now. Thanks so much for your kindness and for not talking down to me.
:seeya:

 

[pearl]

I tend to disagree. It's a case of conflicting "rights" and I think the right of the potential defendant is a much higher priority here.

If the state is inconvenienced, that's their own fault. No one forced them to make a deal. But they did.

I understand the state's right/desire to be able to keep their evidence close to the vest, but (a) they have to disclose it to the defendants anyhow, pre-trial, by law, and (b) imo once the deal is made, it's a contract, and the one granted immunity has the right to what he bargained for and to protection from self-incrimination, absent any actual proof that he violated the deal.

It clearly stated in the agreement that the agreement would be voided if SA wasn't truthful or wasn't forthcoming with what he agreed to tell/show LE. Therefore, I don't think his civil rights are violated if he is indicted. It seems to me, he knew what LE wanted and agreed to show/tell but either lied or didn't tell everything that LE has evidence to prove. Or, LE could have found out he was an active participant in whatever happened to Holly. The agreement could be voided if LE found that out too. A person's rights aren't violated when they knowingly lie to or try to one-up LE and then get caught doing so. SA knew what was expected of him and did not deliver. Some type of evidence had to lead LE to SA. I don't think he walked in off the street volunteering info.

 

[SteveS]

It clearly stated in the agreement that the agreement would be voided if SA wasn't truthful or wasn't forthcoming with what he agreed to tell/show LE. Therefore, I don't think his civil rights are violated if he is indicted. It seems to me, he knew what LE wanted and agreed to show/tell but either lied or didn't tell everything that LE has evidence to prove. Or, LE could have found out he was an active participant in whatever happened to Holly. The agreement could be voided if LE found that out too. A person's rights aren't violated when they knowingly lie to or try to one-up LE and then get caught doing so. SA knew what was expected of him and did not deliver. Some type of evidence had to lead LE to SA. I don't think he walked in off the street volunteering info.

Here's what I see, from a legal pov:

1 Yes, SA had (or has) a duty to perform.

2 The idea that SA did not perform is only a claim at this point, and one that is in dispute.

3 There is a "good faith" implication in the contract, in which it is to be assumed, lacking proof to the contrary, that he has performed or will perform.

4 No matter what LE says SA has done (or not done) to breach the contract, they must PROVE it, and do so Beyond a Reasonable Doubt, in order for their duty to be removed.

5 There is no question that the DA has not offered proof of any kind to anyone that SA has not performed.

6 SA's rights are contractual (he has a right to expect the DA to perform), but the fact that the contract pertains to the preservation of his 5th Amendment rights puts his Constitutional and criminal rights into play as well.

7 As I see it, LE is playing a very risky and perhaps incredibly stupid game here, with little upside and huge downside.

8 Ultimately LE's obligation will be ascertained by how the court sees it. Or, perhaps, courts.

 

[Tugela]

I frankly don't think Austin has a chance in hades of winning this.

If the DA has evidence to charge him with something other than what was in the immunity agreement there isn't anything Austin or his attorney can do about it.

All they gave Austin immunity on was what he did after Holly was murdered.

Even if the DA doesn't get that part of the deal rescinded.....the immunity deal never included giving him immunity if he took part in the actual kidnapping and murder of Holly.

If the DA now has evidence that Austin was involved in any manner in the actual kidnapping or brutalization or the murder of Holly... then no one can stop the DA from bringing those charges against him. Not one thing was mentioned in the immunity deal that would cover those charges.

I do expect him to be charged and it certainly wont be as an accessory after the fact as he is claiming, imo. They may even decide not to charge him on those charges if the charges they do file will give him much more time if convicted. It will be a much more serious charge and most likely he will also be charged with making a false statement and possibly obstruction of justice.

IMO

He would still retain immunity if the evidence was provided by himself (in other words, as a result of anything he told them), or if it came from co-conspirators (to prevent the DA taking statements from other accused and using that against him). In order to circumvent immunity, the DA would have to get evidence of his involvement independently of those two exceptions, and I think that would be difficult to do.

 

[Tugela]

RSBM

So, is the reverse also true? (No snark intended) If SA didn't live up to the immunity agreement, did he breach the contract? I am just trying to understand, because I know absolutely nothing about this legal aspect. TIA

The DA would have to prove it beyond reasonable doubt though, and a judge would probably only accept their argument if the deception was egregious enough. Minor discrepancies would not be sufficient.

In the case of the DA, proof of their breach is in the letter, so there is no question about that.

 

[pearl]

Here's what I see, from a legal pov:

1 Yes, SA had (or has) a duty to perform.

2 The idea that SA did not perform is only a claim at this point, and one that is in dispute.

3 There is a "good faith" implication in the contract, in which it is to be assumed, lacking proof to the contrary, that he has performed or will perform.

4 No matter what LE says SA has done (or not done) to breach the contract, they must PROVE it, and do so Beyond a Reasonable Doubt, in order for their duty to be removed.

5 There is no question that the DA has not offered proof of any kind to anyone that SA has not performed.

6 SA's rights are contractual (he has a right to expect the DA to perform), but the fact that the contract pertains to the preservation of his 5th Amendment rights puts his Constitutional and criminal rights into play as well.

7 As I see it, LE is playing a very risky and perhaps incredibly stupid game here, with little upside and huge downside.

8 Ultimately LE's obligation will be ascertained by how the court sees it. Or, perhaps, courts.

I agree with all your points except for #6. We don't know, as yet, what LE has in the way of evidence. Not knowing anything for sure, I do think the DA can prove beyond a reasonable doubt that SA did not fulfill his end of the bargain or lied or was actively involved in the abduction and murder. Maybe I have too much faith in LE, but I don't think this DA would make this move if he did not have evidence to back it up. It would be stupid for him to do so otherwise. I think, basically, SA and his lawyer are on a fishing expedition to see just what the DA has on SA that would cause the DA to void the agreement. Maybe SA knows he did not perform as expected, will be indicted eventually, and wants to know before the indictment about the evidence against him. I think all this could have been avoided if the DA simply took whatever evidence against SA he has before the grand jury and got an indictment. The grand jury is not going to indict unless there is proof. The agreement clearly states it can be voided if it is determined that SA was an active participant in the abduction and/or murder. I guess we can agree to disagree and wait to hear whatever court rules on this issue. Ya'll have a good morning.

 

[Tugela]

Personally, given what I know about that case, I think quoting the Casey Anthony jury about pretty much anything is a poor choice to support the point about motive. They didn't think the state proved anything. One would almost think the child dropped herself off and crawled into that duffel bag.

I don't think they thought that, more precisely they thought that the state failed to prove that the person charged was responsible. Big difference. It was obvious that something illegal had led to the childs death, the big question really was who was responsible for that. That was less clear, and therefore reasonable doubt should have (and did) kick in.

I think that is a nuance that most people here on WebSleuths missed. The jury returned the proper and correct verdict based on the evidence presented, that does not always happen.

 

[SteveS]

6 SA's rights are contractual (he has a right to expect the DA to perform), but the fact that the contract pertains to the preservation of his 5th Amendment rights puts his Constitutional and criminal rights into play as well.

I agree with all your points except for #6. We don't know, as yet, what LE has in the way of evidence. Not knowing anything for sure, I do think the DA can prove beyond a reasonable doubt that SA did not fulfill his end of the bargain or lied or was actively involved in the abduction and murder.

As far as whether SA has rights, the existence of those rights is not in question.

The only issue is whether those rights have been violated, and LE will have to prove that they have not, BARD.

Maybe they can - time will tell. But so far we have to admit that they haven't proven anything to anyone and all they've offered is "because I said so" and "I don't have to prove anything" - neither of which tend to work at all before a judge.

 

[Tugela]

I never said motive was the only factor in a jury's decision. Read back.

The onus is on the prosecution to present the case to the jury. I posted the W5 questions and the How.

I don't have time to research every case where motive was an issue but here is one of them.



So, yes, they do consider motive!

But that was in the context of a lack of evidence in general, what they were saying is that they not only was there insufficient evidence, but there was no motive either which might have persuaded them to overlook the lack of evidence. So they were looking at the evidence first, and saw that there was no much, then they looked for a motive as a second kick at conviction, and saw there was none. So they acquitted.

It is not uncommon for people to be convicted on motive alone, even with little or no evidence to back it up.

 

[Tugela]

this is basic contract law sort of right? The immunity agreement is a contract between the witness and LE. I will do X Y and Z and you will, in return, not charge me with L, M, N or P.

Witness has ostensibly provided the X Y and Z and thus far he has not been charged with L M N or P. So thus far no contract has been broken and therefore I think that makes this motion premature regardless of which court hears it.

MOO

Not so. If you have a contract with someone, and they serve notice that they intend to breach the contract, you can go to court and get a judge to order them to abide by the contract.

You can't go to the judge before they tell you of their intent, but as soon as the DA sent off that letter the door to proactively get an injunction against breach was opened. The aggrieved party does not have to wait for the breach to actually happen under those circumstances.