trial thread: 5/8/2012

[gitana1]

What happens if they lose another juror and have no alternates left? They are so close to the end of the trial would they continue on with no alternates? If so could that be an appellate issue?

They would go on until the jury left is down by one. Then it would be a mistrial. But they could go to the very end with no alternates.

wow think of the implications here if you ever babysat a kid that is the subject of a custody battle you too could get charged with interferrence

Well, that's not true. If you aided the person whose child you were babysitting, in taking that child from the other parent, either by forgery, trying to scheme to come up with scenarios that would trick the other parent into losing his or her rights, hiding the child or helping the parent abscond with the child - that's custodial interference.

BTW, I just can't follow this trial, as much as I would like to. I get on here during work hours but not for such long blocks of time, so all I can do is read here. I LOVE the screen shots of TS having a hissy fit. Can you guys post more of those?

 

[seattlechiquita]

Are they requesting a mistrial again?

 

[dizzychick]

oops did you hear that? wow can the judge let her off w/o a verdict?

 

[dizzychick]

cant interferre if you dont have rights which is a loophole

 

[dizzychick]

I see if this all took place after Logan got custody then this would be different story

 

[strawberry]

Hi everyone :wave: ---just back from Lesley's funeral

:grouphug:

 

[strawberry]

oops did you hear that? wow can the judge let her off w/o a verdict?

Didn't hear it. He was making me nervous so I muted him.

 

[CarolinaMoon]

Hi everyone :wave: ---just back from Lesley's funeral

God bless. Hugs (((seattlechiquita))).

 

[dizzychick]

oops she is not going to walk fully i see that

 

[gitana1]

Is there a motion being heard right now?

 

[gitana1]

I'm on track right now. Motion for directed verdict. I think the state may have a good argument. The putative father has parental rights even in the absence of custodial orders. I;m going to read the statute.

 

[CarolinaMoon]

Gitana, correct me if I am wrong. The defense usually moves for a directed verdict of acquittal. They try to convince the judge that the state has not proven its case. I have seen it happen once.

 

[dizzychick]

pooey I didnt get to see jack

 

[artsy1]

The first part applies to parents, so it doesn't apply to unmarried couples? HUH? What are EJ and Logan - guppies?

 

[dizzychick]

i am sure this crazy lady had no idea at the time that was she was doing was anything other than cagey and im sure shd no idea she was in any kind of trouble legally since EJ probably filled her full of crap about the father whomever he might be. Wondering if the jury will take this as TS was trying desperately to get a child that was in potential peril if he stayed with his obvious bi polar mother. Im still not clear what info she had about Logan at that time anyway.

 

[gitana1]

I note that for the forgery charge, all TS faces is 2.5 years at the most. http://www.myarizonadefenselawyer.com/arizona-criminal-charges/fraud-forgery/

 

[gitana1]

Gitana, correct me if I am wrong. The defense usually moves for a directed verdict of acquittal. They try to convince the judge that the state has not proven its case. I have seen it happen once.

Yup. And the judge did state that's what the motion was. I was unaware that the state was resting!

 

[gitana1]

Okay, looking at the statute, I'm surprised the judge had such problems with the state's argument when it comes to TS's actions pre-12/17:

13-1302. Custodial interference; child born out of wedlock; defenses; classification A. A person commits custodial interference if, knowing or having reason to know that the person has no legal right to do so, the person does one of the following:
1. Takes, entices or keeps from lawful custody any child, or any person who is incompetent, and who is entrusted by authority of law to the custody of another person or institution.
2. Before the entry of a court order determining custodial rights, takes, entices or withholds any child from the other parent denying that parent access to any child.
3. If the person is one of two persons who have joint legal custody of a child takes, entices or withholds from physical custody the child from the other custodian.
4. At the expiration of access rights outside this state, intentionally fails or refuses to return or impedes the return of a child to the lawful custodian.
B. If a child is born out of wedlock, the mother is the legal custodian of the child for the purposes of this section until paternity is established and custody or access is determined by a court.

http://law.justia.com/codes/arizona/2010/title13/13-1302.html

The defense was arguing that section B makes clear that in the absence of paternity having been established, the mother would have sole legal custody and custodial interference would be impossible.

It seems that the two sections cancel each other out. But my interpretation is that if a putative father stole a child, he would be found to have interfered with the mother's legal custody rights, if paternity had yet to be established, via section A1 of the statute. That does not mean that inherent custodial rights could NOT be interfered with, though, if a putative father's potential custodial orders were purposefully thwarted.

I think the judge needs to study on this and the state should look up the legislative history to make sure the intent of the law is clear.

 

[gitana1]

Looks like TS faces a likely sentence of only 3.5 years if she is found guilty of the custodial interference, although the max is 7 years, because 3.5 is "presumptive". http://www.russlawaz.com/arizona-class-3-felony.htm

I predict that if this woman is found guilty, she will be sentenced to no more than 2.5 years on each charge, to run concurrently and will actually serve much less, unless AZ is strict about making convicts serve their entire sentence.

That makes me really mad. IMO, she helped create a situation with an unstable woman to take baby Gabriel away from his father forever, either by an illegal adoption or murder. I think she deserves 10 years.

 

[artsy1]

Okay, looking at the statute, I'm surprised the judge had such problems with the state's argument when it comes to TS's actions pre-12/17:http://law.justia.com/codes/arizona/2010/title13/13-1302.html

The defense was arguing that section B makes clear that in the absence of paternity having been established, the mother would have sole legal custody and custodial interference would be impossible.

It seems that the two sections cancel each other out. But my interpretation is that if a putative father stole a child, he would be found to have interfered with the mother's legal custody rights, if paternity had yet to be established, via section A1 of the statute. That does not mean that inherent custodial rights could NOT be interfered with, though, if a putative father's potential custodial orders were purposefully thwarted.

I think the judge needs to study on this and the state should look up the legislative history to make sure the intent of the law is clear.

I'm not an attorney, but here's my argument on it (pro prosecution):

13-1302. Custodial interference; child born out of wedlock; defenses; classification
A.A person commits custodial interference if, knowing or having reason to know that the person has no legal right to do so, the person does one of the following: 1.Takes, entices or keeps from lawful custody any child, or any person who is incompetent, and who is entrusted by authority of law to the custody of another person or institution.
2.Before the entry of a court order determining custodial rights, takes, entices or withholds any child from the other parent denying that parent access to any child.
3.If the person is one of two persons who have joint legal custody of a child takes, entices or withholds from physical custody the child from the other custodian.
4.At the expiration of access rights outside this state, intentionally fails or refuses to return or impedes the return of a child to the lawful custodian.




B.If a child is born out of wedlock, the mother is the legal custodian of the child for the purposes of this section until paternity is established and custody or access is determined by a court.



One of the times that EJ destroyed Logan's apartment (August or September, I believe), the court gave Gabriel to Logan and issued a restraining order against EJ protecting Gabriel and Logan. Since the restraining order was issued against the "legal custodian of the child", as defined above, isn't the court implying that Logan was the father ("access determined by a court") by allowing Gabriel to stay with Logan? Otherwise, Gabriel should have been taken by CPS to protect him against the "legal custodian".

Since I haven't seen the actual restraining order, I don't know what exactly the judge who issued it said about it, but if it implies or states that Logan was the father at the time the restraining order was issued, doesn't that negate the defense's argument that Logan didn't have rights until December 17?