Questions for our VERIFIED LAWYERS*~*~*NO DISCUSSIONS*~*~*

[AZlawyer]

I don't do criminal but don't you need probable cause for a search warrant? My understanding was that searching text messages, for bat phones, etc., all necessitated warrants that require probable cause. I kind of figured that's what Kaine was referring to - multiple circuit judges for multiple search warrants. Help me out!! TIA.

I think that's what he meant, too. But he said probable cause to believe TH was involved in the disappearance, or something to that effect--rather than probable cause to search her computer/phone/whatever.

 

[Trt]

Thanks for the clarification. Question I have is why would LE give Kaine and his lawyer a different version than they gave Terri and her lawyers way back when the contempt
motion was filed? Especially since Terri wrote them and would already know everything that was in them?

 

[gitana1]

I think that's what he meant, too. But he said probable cause to believe TH was involved in the disappearance, or something to that effect--rather than probable cause to search her computer/phone/whatever.

Thank you so much AZlawyer. But wouldn't probable cause to search her phone records, etc., necessarily be that she may be involved in the disappearance thus they need to search her records? I mean, what else would there be probable cause of? I don't know how this works. I'm thinking that a search warrant would state that they have probable cause to search because they feel TH is somehow involved. That would support KH's statement in his affidavit, right? Or am I nutso over here!!!!

 

[desquire]

Thank you so much AZlawyer. But wouldn't probable cause to search her phone records, etc., necessarily be that she may be involved in the disappearance thus they need to search her records? I mean, what else would there be probable cause of? I don't know how this works. I'm thinking that a search warrant would state that they have probable cause to search because they feel TH is somehow involved. That would support KH's statement in his affidavit, right? Or am I nutso over here!!!!

Think back to Criminal Procedure in law school (if you can, it's all a distant blur to me other than I had a professor named Ogletree who gave us exams that were more about race than the 4th Amendment): probable cause for a search exists when the facts and circumstances are sufficient for a reasonable person to believe it likely that a specifically described item bearing some connection to a crime will be found in the place to be searched.

The judge doesn't have to determine whether there's probable cause to believe that the person in possession of the property to be searched (or anyone else) committed the crime in question. (How would LE obtain evidence to show probable cause of someone's guilt if they needed probable cause of that person's guilt to search for the evidence in the first place?)That kind of determination is only made in connection with an arrest warrant

 

[SurfieTX]

Think back to Criminal Procedure in law school (if you can, it's all a distant blur to me other than I had a professor named Ogletree who gave us exams that were more about race than the 4th Amendment): probable cause for a search exists when the facts and circumstances are sufficient for a reasonable person to believe it likely that a specifically described item bearing some connection to a crime will be found in the place to be searched.

The judge doesn't have to determine whether there's probable cause to believe that the person in possession of the property to be searched (or anyone else) committed the crime in question. (How would LE obtain evidence to show probable cause of someone's guilt if they needed probable cause of that person's guilt to search for the evidence in the first place?)That kind of determination is only made in connection with an arrest warrant

Three of Terri's friends had search warrants served on their homes. I'm assuming the only common denominator was Terri. Therefore, is it safe to extrapolate that there is/was something about Terri presented in those warrants?

 

[gitana1]

Think back to Criminal Procedure in law school (if you can, it's all a distant blur to me other than I had a professor named Ogletree who gave us exams that were more about race than the 4th Amendment): probable cause for a search exists when the facts and circumstances are sufficient for a reasonable person to believe it likely that a specifically described item bearing some connection to a crime will be found in the place to be searched.

The judge doesn't have to determine whether there's probable cause to believe that the person in possession of the property to be searched (or anyone else) committed the crime in question. (How would LE obtain evidence to show probable cause of someone's guilt if they needed probable cause of that person's guilt to search for the evidence in the first place?)That kind of determination is only made in connection with an arrest warrant

Oh my, you're causing law school flash backs. I took a criminal law class but not a specific crim procedure class, just civil procedure. It is a blur. I may be confusing what I remember with my Evidence class? I guess I've tended to discard things I don't use anymore. All I remember now are some cases regarding searching someone's person, their car, curtilage, when someone is considered arrested, the fruit of the poisonous tree, etc. Ick.
Anyhow, what you say does "refresh my memory", lol. I understand what you guys are saying now. I get what you mean.
But I think my understanding about what KH was trying to say about probable cause still may have merit. I mean, don't they have to show what the probable cause would be to search a particular person's phone records? What's the probable cause to search TH's records? Just that she's a relative or that there is something about her conduct or statements that give them cause to believe that she may have some evidence regarding Kyron's disappearance? I bet KH and his lawyers are trying to make the connection that if that's the case, then the judges issuing the search warrants felt there was enough there to feel TH may be withholding info about what happened and knows something about his disappearance. But I can see now from what you have cited that that could be a stretch.
Thanks for the info!

 

[desquire]

Three of Terri's friends had search warrants served on their homes. I'm assuming the only common denominator was Terri. Therefore, is it safe to extrapolate that there is/was something about Terri presented in those warrants?

I'm absolutely sure there was but that's not the point. Search warrant affidavits tend to be very formulaic: (1) the police officer identifies himself and describes his experience, (2) states that he is involved in an investigation of specific crime X, (3) states that he requests permission to search places Y and Z for specific types of items A,B, and C that are related to crime X, and then (4) explains why there is probable cause to believe that A,B, and C will be found in places Y and Z. It's common that the statements in item 2 will include something along the lines of "I believe that Person T has committed crime X based on (insert list of generic evidence descriptions here, like "statements made by Person T" or "testimony of a confidential informant believed to me to be reliable" or ""an evaluation of physical evidence and testimony of reliable witnesses"). The point is that the magistrate or judge is making a determination as to whether the reasons stated in item 4 amount to probable cause, not whether probable cause is supported in item 2. Item 2 is taken as true and is only important as far as it may create a link between the crime and the place to be searched.

 

[SurfieTX]

I'm absolutely sure there was but that's not the point. Search warrant affidavits tend to be very formulaic: (1) the police officer identifies himself and describes his experience, (2) states that he is involved in an investigation of specific crime X, (3) states that he requests permission to search places Y and Z for specific types of items A,B, and C that are related to crime X, and then (4) explains why there is probable cause to believe that A,B, and C will be found in places Y and Z. It's common that the statements in item 3 will include something along the lines of "I believe that Person T has committed crime X based on (insert list of generic evidence descriptions here, like "statements made by Person T" or "testimony of a confidential informant believed to me to be reliable" or ""an evaluation of physical evidence and testimony of reliable witnesses"). The point is that the magistrate or judge is making a determination as to whether the reasons stated in item 4 amount to probable cause, not whether probable cause is supported in item 3. Item 3 is taken as true and is only important as far as it may create a link between the crime and the place to be searched.

Thank you. I wish you wouldn't put yourself in time out.

 

[ami]

The last filing from Kaine's side was an affidavit written in the first person, describing his experiences living with Terri and explaining why he believed she should not have visitation with baby K. We've seen other filings in which the parents are not writing in the first person, but are referred to as "Respondent" or "Father", etc., by the attorneys. Are there reasons papers would be filed in one format over the other? For instance can Kaine have more latitude in the things he wants the judge to know if he writes in the first person; things his attorney wouldn't be able to say if she were writing the same sort of document on Kaine's behalf?

 

[AZlawyer]

The last filing from Kaine's side was an affidavit written in the first person, describing his experiences living with Terri and explaining why he believed she should not have visitation with baby K. We've seen other filings in which the parents are not writing in the first person, but are referred to as "Respondent" or "Father", etc., by the attorneys. Are there reasons papers would be filed in one format over the other? For instance can Kaine have more latitude in the things he wants the judge to know if he writes in the first person; things his attorney wouldn't be able to say if she were writing the same sort of document on Kaine's behalf?

Affidavits are written in first person because they are the sworn statement of that person and signed by that person. Motions, etc., are written by and signed by the lawyer, so the client is referred to in third person.

 

[ami]

Affidavits are written in first person because they are the sworn statement of that person and signed by that person. Motions, etc., are written by and signed by the lawyer, so the client is referred to in third person.

I realize that.

My question was about the strategy - which information is released by Kaine's side in the form of an affidavit written by Kaine versus information released by Kaine's side in the form of a response by Kaine's attorney. Is there a strategic advantage in having information funneled into the case via an affidavit?

For instance Terri could be writing affidavits and she is not. The information such as "Mother was the primary caregiver of baby K" has been released through her attorneys. The response of "We shared parenting equally" was released directly from Kaine. Kaine's attorney could have easily written, "Father shared parenting responsibilities equally" - but she didn't. I'm wondering if that is strategic, or simply a matter of preference.

 

[nonfictionrocks]

Kyron went missing from the school on June 4th - what would be the deadline for filing a negligence suit against Skyline and the Portland School Board, should the family wish to pursue this? TIA

 

[Dee10]

Question: Given the bizarre circumstances in this case with a "parallel criminal investigation" going on; IF the Judge granted some sort of supervised visitation (in this particular case) and something when wrong for whatever reason, would that come back on the Judge in some sort of way, especially give this case?

 

[desquire]

Kyron went missing from the school on June 4th - what would be the deadline for filing a negligence suit against Skyline and the Portland School Board, should the family wish to pursue this? TIA

Normally the statute of limitations on tort claims in Oregon is two years but a wrongful death claim against a public body has to be filed within one year.

 

[desquire]

Question: Given the bizarre circumstances in this case with a "parallel criminal investigation" going on; IF the Judge granted some sort of supervised visitation (in this particular case) and something when wrong for whatever reason, would that come back on the Judge in some sort of way, especially give this case?

No. judicial immunity is very broad and protects judges from any liability for claims arising out of their actions and decisions as a judge.

 

[Billylee]

Three questions that keep popping up in the other threads, so I thought I'd ask them all at once.

If the Grand Jury had seen enough evidence to indict Terri at this point, would they or would they not have issued a true bill?

Also, if they had issued an indictment would it be public record?

How often is and why would an indictment ever be sealed and held for a later date?

TIA

 

[pdx]

Three questions that keep popping up in the other threads, so I thought I'd ask them all at once.

If the Grand Jury had seen enough evidence to indict Terri at this point, would they or would they not have issued a true bill?

Also, if they had issued an indictment would it be public record?

How often is and why would an indictment ever be sealed and held for a later date?

TIA

I have a related two to add, please:

Would the Grand Jury return any decision before they were completed?
How would the general public know the GJ schedule if it is a secret GJ? IE completed with no indictment or ongoing and no indictment.

 

[gitana1]

I realize that.

My question was about the strategy - which information is released by Kaine's side in the form of an affidavit written by Kaine versus information released by Kaine's side in the form of a response by Kaine's attorney. Is there a strategic advantage in having information funneled into the case via an affidavit?

For instance Terri could be writing affidavits and she is not. The information such as "Mother was the primary caregiver of baby K" has been released through her attorneys. The response of "We shared parenting equally" was released directly from Kaine. Kaine's attorney could have easily written, "Father shared parenting responsibilities equally" - but she didn't. I'm wondering if that is strategic, or simply a matter of preference.

The statement of facts portion of every motion is supposed to refer to facts actually stated in a supporting affidavit/declaration. So, for example, Kaine writes (signs) a declaration which is used to support his motion. TH has not written any because she refuses to testify and an affidavit is equivalent to sworn testimony on the stand. Thus, TH's motions or responses to motions are not supported by her statements or the statements of a witness. They consist of almost pure argument which is not a great thing, legally speaking.
In other words, it's not really strategy that causes a party to fail to submit an affidavit in support of a motion or response, it's either laziness or its necessity (when there is no witness or party who can testify).

 

[AZlawyer]

Three questions that keep popping up in the other threads, so I thought I'd ask them all at once.

If the Grand Jury had seen enough evidence to indict Terri at this point, would they or would they not have issued a true bill?

Also, if they had issued an indictment would it be public record?

How often is and why would an indictment ever be sealed and held for a later date?

TIA

I have a related two to add, please:

Would the Grand Jury return any decision before they were completed?
How would the general public know the GJ schedule if it is a secret GJ? IE completed with no indictment or ongoing and no indictment.

I know we've addressed all these questions before, and probably contradicted ourselves in the process. So I hate to add any more confusion, but here are my lawyer-like "answers":

If the Grand Jury had seen enough evidence to indict Terri at this point, would they or would they not have issued a true bill? Probably. Unless they didn't want to for some reason.

Also, if they had issued an indictment would it be public record? Probably. Unless the state decided for some reason to hold off on arresting her.

How often is and why would an indictment ever be sealed and held for a later date? Hardly ever. But if the state hasn't executed the arrest warrant, we wouldn't know about it even if the indictment hadn't been "sealed".

Would the Grand Jury return any decision before they were completed? I'm not sure what you mean. If the GJ reaches a decision on a specific case before their term is completed, they would return the decision without waiting for the end of their term. However, they are not required to reach a decision on all the cases that come before them prior to completing their term.

How would the general public know the GJ schedule if it is a secret GJ? IE completed with no indictment or ongoing and no indictment. Not everything is secret about the GJ. I'm sure you could find out from court administration whether or not the same GJ is still empaneled.

 

[SurfieTX]

Can Terri legally plead the 5th in the divorce hearing before being charged with an actual crime?

For example: If I witness an auto accident and am called to testify, I can't plead the 5th can I?