GUILTY NH - AH, 14, North Conway, 9 October 2013 - #14

[white rabbit]

phew I'm havin' a hard time keeping up folks.

stupid questions:

1. if she simply SAID she was raped, they would've done a rape kit, stat, correct? and wouldn't they have immediately, at the onset, slapped him with statutory rape?

2. if she said they had consensual sex, they would've immediately slapped him with statutory rape anyway, as at her age it doesn't matter if it was consensual, correct?

IOW would they have needed evidence other than a rape kit to slap him with that charge initially?

TIA. I realize these are hypothetical stupidities on my part...

 

[Fireweed]

phew I'm havin' a hard time keeping up folks.

stupid questions:

1. if she simply SAID she was raped, they would've done a rape kit, stat, correct? and wouldn't they have immediately, at the onset, slapped him with statutory rape?

2. if she said they had consensual sex, they would've immediately slapped him with statutory rape anyway, as at her age it doesn't matter if it was consensual, correct?

IOW would they have needed evidence other than a rape kit to slap him with that charge initially?

TIA. I realize these are hypothetical stupidities on my part...

I don't think so. Theoretically speaking, a woman could accuse a man of rape many months after the fact, and at that point a rape kit would be pointless.

I just hope that this is clear: the reason that most rapes require rape kits, DNA, etc, etc, is because most rapes occur in a way that makes it very hard to tell if the victim consented or not. Rape is hard to prove because it is one of the few crimes where the crux of the case is what the victim was thinking at the time the act took place. The defendant has two defenses: that there was no sex, or that there was sex and it was consensual. The rape kit would establish that the victim had sexual contact with the accused. At that point, the only defense of the accused is that it was consensual. The issue of consent is something that has to be determined by the fact-finder. This is why so many rape cases never reach a conviction - it is a he said/she said thing.

But in a case like this, where the victim was allegedly kidnapped and imprisoned, there is not the big question of he said/she said. Even if there is not physical evidence that sex took place (let's say it had been more than a week or something), the victim's word here would be very good evidence of it. I repeat once more: this is not a typical rape case. In a typical rape case, the circumstances surrounding the alleged rape make it very difficult to tell in the victim did or did not consent. In this case, there could be no consent because of the circumstances. The only defense left to the defendant is that there was no sex at all. Could a jury find that there was no sex? I suppose, but it would be very easy for a jury to reasonably believe that there was sex, based solely on the testimony of the victim and without any physical evidence.

 

[Aleph]

Another data point, FWIW: They took Ted Kaczynski's whole cabin for the Unabomber trial. That was a federal case, of course.

 

[Miss_Diana]

Questions: Is a mobile home considered a "vehicle"?

Has Abby mentioned anything about sex/rape yet?

TIA

 

[bessie]

Didn't LE take Isreal Keyes' shed from the property? IIRC, I think they did.

Yes. I posted a photo earlier in the thread. And in the Aliahna Lemmon homicide, LE seized Michael Plumadore's mobile home "to preserve evidence".

 

[PoirotryInMotion]

I remember reading that too but I have my doubts about statements made to the public as often times they are not true.

If my first theory is wrong, then perhaps they do have the wrong Kibby right now and the guy in the sketch is still out there, when he should be in jail.

NK is 9 inches taller than Abby, he has BIG blue eyes, a long face, and appears clean shaven in every photo, including past mug shots, also his hair line is different and he is not slightly overweight at all.

So either they had the wrong sketch or they have the wrong Kibby in jail right now.

OR the sketch artist is just really really bad.

BBM

Or, lastly, the description is just really really bad.

 

[pinkandgreenmom]

Yes. I posted a photo earlier in the thread. And in the Aliahna Lemmon homicide, LE seized Michael Plumadore's mobile home "to preserve evidence".

Bessie,

Do you happen to remember if the issue was ever adjudicated (or even raised) in that case, or was it just something that LE did and no one complained about it?

Thanks in advance. And I promise I'm not trying to be snarky I'm just thinking since he ended up pleading guilty the murder case never went to trial. I'm not sure about motions that came before the guilty plea, though.

 

[white rabbit]

thank you fireweed...and I agree with poirotry's post 865.

another stupid question -- I'm so good at them -- if they're not looking for evidence of rape and/or imprisonment...what ARE they looking for. and what charges would be filed? "intent to act with creepiness", "terroristic tendencies"...I'm just not sure where they're going with it.

guess I'm as confuzzled as friedman.

http://www.nbcnews.com/news/crime-c...rgue-over-moving-alleged-captors-home-n174086

"Jane Young, New Hampshire’s assistant attorney general, told the judge that it would cost the state $12,000 just to put fencing around the property. She also argued that the state has sufficiently photographed, videotaped and diagrammed the site — all evidence made available to Kibby’s defense team."

did I miss something? the defense has been given the state's evidence?

 

[Fireweed]

thank you fireweed...and I agree with poirotry's post 865.

another stupid question -- I'm so good at them -- if they're not looking for evidence of rape and/or imprisonment...what ARE they looking for. and what charges would be filed? "intent to act with creepiness", "terroristic tendencies"...I'm just not sure where they're going with it.

guess I'm as confuzzled as friedman.

http://www.nbcnews.com/news/crime-c...rgue-over-moving-alleged-captors-home-n174086

"Jane Young, New Hampshire’s assistant attorney general, told the judge that it would cost the state $12,000 just to put fencing around the property. She also argued that the state has sufficiently photographed, videotaped and diagrammed the site — all evidence made available to Kibby’s defense team."

did I miss something? the defense has been given the state's evidence?

That is the problem. No one knows what they are looking for. The defense attorney cannot properly represent and advise his client right now because he does not know the purpose of the searches that are being conducted.

I do not think that the defense has been given any of the state's evidence. Jane Young is simply telling him not to worry, that the state will like totally preserve it for him to look at later.

The big constitutional problem here is that the state knows what evidence it is looking for and why, whereas the defense has no clue what it is supposed to be looking for when they visit the "crime scene".

 

[AnaTeresa]

Questions: Is a mobile home considered a "vehicle"?

Has Abby mentioned anything about sex/rape yet?

TIA

1) It can be. There's been case law that covers the issue - whether it's a home or a vehicle, at least with regard to probable cause/searches/warrants/etc. I think it's a matter of titling. If it's registered with the DMV, it's a vehicle; if it's en route somewhere, it a vehicle. If it's attached to land, it's considered a residence. I think once you convert it from a mobile property to a real estate property, it can't go back - but that might vary by state, I'm not sure.

2) No.

 

[PoirotryInMotion]

First, just a thanks to AnaTeresa and Not Without Peril for adding your legal knowledge to this--it really has helped and has made for interesting reading. The details that make this case unique (eg. the unusual initial charge levied at the accused) are exactly why it has 'latched on' (in my mind, anyway).

Excellent point. Though I do suppose that, under the law, if he had that intent at the moment he had Abby get into the car, then he could still be charged with the class b kidnapping felony even if he dropped that intent only a short time later.

My other issue is that surely any way of forcing someone into a car would be either an assault or a battery. If that is how he got her, then that should be part of the charges.

People keep saying that there are surely more charges to come, but to me, all these things would just be basics and totally corollary to the main kidnapping charge.

I guess I could see just an assault charge if he pointed a gun at her and had get in the car.

Seriously though, all this stuff should have been part of the original kidnapping charge.

She could have entered a vehicle without the use of force by the accused (eg. hitch-hiking). But, yes, hard to see how, within a 9-month period, there would not also have been any sort of initial assault charges added to this felony B kidnapping, unless the victim is utterly mute and 1) hasn't verbalized statements to that effect, and 2) hasn't evidenced assault via medical exam.

 

[AnaTeresa]

thank you fireweed...and I agree with poirotry's post 865.

another stupid question -- I'm so good at them -- if they're not looking for evidence of rape and/or imprisonment...what ARE they looking for. and what charges would be filed? "intent to act with creepiness", "terroristic tendencies"...I'm just not sure where they're going with it.

guess I'm as confuzzled as friedman.

http://www.nbcnews.com/news/crime-c...rgue-over-moving-alleged-captors-home-n174086

"Jane Young, New Hampshire’s assistant attorney general, told the judge that it would cost the state $12,000 just to put fencing around the property. She also argued that the state has sufficiently photographed, videotaped and diagrammed the site — all evidence made available to Kibby’s defense team."

did I miss something? the defense has been given the state's evidence?

1) We don't know what they're looking for yet. Basically, with the kidnapping charge, he was holding Abby with intent to commit some sort of act; right now, it's a guessing game what that was. Plus, there might be evidence of other crimes he committed as well. Basically, they are looking for evidence of any crimes committed against Abby, plus any other crimes committed at the place where that crime was committed, or in conjunction with those crimes. It's a big old question mark.

2) I think Young is saying that they have apprised the defense attorney what evidence they've taken (i.e. those photographs, videos, and diagrams of the scene) so that the defense can't claim that there wouldn't be sufficient evidence for them to examine the scene. I don't think this means that the State has physically provided that evidence to the defense attorneys.

 

[white rabbit]

thank you again fireweed. u smarter than rabbit.

:giggle:

IMO $12k isn't such a big chunk considering the magnitude of the search in the last 9 months, and the overtime paid to multiple agencies.

heck they spent more than that on gas alone.

 

[white rabbit]

thanks anatheresa. u smart too.



without entering a plea, WHEN is it the state's burden to turn over said evidence...I know it's within 30 days of a not guilty plea, but without a plea, what's their time frame?

TIA.

 

[PoirotryInMotion]

Probably reading to much into something that isn't there but the stamped addressed envelope in his pocket why would he be carrying that knowing he'd be photographed. Why not give it to his attorney to post or leave it in his cell. Could it be a sign or signal. Just a bit odd.

I thought so, too. If I had to guess, I’d guess addressed to a family member (based on zipcode).

 

[PoirotryInMotion]

I spent many years writing and editing newspaper articles about many hundreds of criminal cases and nothing about the legal squabbles in this case seems particularly unusual to me.

1) Typically, in a complicated case, the suspect is arrested on a holding charge -- the minimum charge that the prosecutor is confident in proving and that will get the guy off the street.
2) Once the person is incarcerated and the investigation is going full speed ahead, there is absolutely no incentive for the prosecution to move quickly with additional charges. The more they delay, the less time the defense has to put together a response.
3) The defense, of course, acts "exasperated" and has good reason to be, since they know that more charges are coming, but they can't anticipate exactly what those charges will be.
4) In such a situation, then, the defense has every incentive to object to everything, and to ask for or demand everything they can think of.
5) If they don't object now (even though they may not know exactly what they are talking about), they may jeopardize their right to appeal.
6) Similarly, they have an incentive to ask for everything they can think of. They may not know if anyone has had a medical exam, for example, (because the prosecution won't tell them), but it is prudent of them to ask for blood test results -- or for the results to be protected -- just in case they exist. So their motions or objections contain laundry lists designed to cover all possibilities.
7) IMO, the defense has a excellent point that (if the expected charges come, regarding alleged crimes on the property) the lines of sight and the ability to hear voices or screams could be crucial, and once the buildings are removed, proving or disproving such elements would be virtually impossible.

For what it's worth…

It's worth a lot. Great summation, thanks. And I concur, especially with your opinion in number 7.

 

[PoirotryInMotion]

phew I'm havin' a hard time keeping up folks.

stupid questions:

1. if she simply SAID she was raped, they would've done a rape kit, stat, correct? and wouldn't they have immediately, at the onset, slapped him with statutory rape?

2. if she said they had consensual sex, they would've immediately slapped him with statutory rape anyway, as at her age it doesn't matter if it was consensual, correct?

IOW would they have needed evidence other than a rape kit to slap him with that charge initially?

TIA. I realize these are hypothetical stupidities on my part...

Wascally Wabbit. I agree with all these hypothetical, stupid questions.

 

[bakerlady]

What are you talking about? There would be an excellent way for the state to build a rape case! The reason rape cases are hard to prosecute, is because almost all of them hinge on the question as to whether the victim consented or not. There is generally little physical evidence.

Kidnapping a minor, confining her in a storage container for 9 months, would be two very huge pieces of evidence to convict a man of rape. If the victim said, "he raped me" and you had the evidence of kidnapping and imprisoning, then that right there would be a slam-dunk rape case.

I agree to an extent but IMO Abby said no such thing otherwise the charge would have already been laid.

 

[liljim]

im hesistant to post this because it is such a silly issue but, the idea that it would cost 12k to fence that site is utterly ridiculous. they probably got that quote from somebody's brothers fencing company...

not that it matters, lets say it was legit 15k, 20k, the state should still be required to spend it if that is in the best interest of justice.

whether or not that is the case is certainly open for debate.

 

[Fireweed]

I agree to an extent but IMO Abby said no such thing otherwise the charge would have already been laid.

That is what I personally find odd.