S1E : Case Evidence 06.26.17
Take a deeper look at the evidence as experts discuss new developments in the case.
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the holy in pain Lindsay previous case evidence you heard from defense attorney Ashleigh merchant who joins me here today because we are going to compare and contrast the indictments against Bo Ryan dew and bowed and we'll talk about certain things like the statute of limitations and we're going talk about how certain privileges that may or may not apply with respect to bow in the event his call to testify as witness if there's a trial against Ryan do nail in the last case evidence we heard from Ashley she gave the full throated defense or how she might do it with regard to Ryan's case this is case evidence the the the the the uh the uh the uh the the the episode was recorded that industrious Atlanta parts of the market industrious offer stunning sharing co working office space for companies of all sizes I can tell you a great PR because I've been here for the past six months this is a ten foot headquarters right here industrious Atlanta Industries offers high speed internet daily breakfast conference rooms plus there's no long term commitment in right now industrious as an offer for you you can save two hundred and fifty dollars off your first month's rent going to industrious Office Talk column slash vanished Stewart fifty bucks off your first month's rent like going to industrious office dog home flash vanished now for the show so Ashleigh Keys town to Stella's little bit about this indictment with blows and how it's charged and what he might be facing if he's convicted yes to this indictment that goes God is very interesting because it's got so many different legal issues that we can talk about if he's convicted he's got three counties got the first one which is concealing the death of another in that one he can get up to ten years so it's a one to ten year for that on the second count of tampering with evidence and again he get up to ten it's a one to ten range and the third count of hindering apprehension of a criminal so essentially that's him hindering the state from finding the person Ryan Duke who they believe did this and that's one to five so in total if all of those counts were proved he could face twenty five years in prison to flit about the legal concept known as merger of the fences which basically is if the cases or the counts blend together how does that work so it's it's interesting merger is based on double jeopardy and so what the law says you can't be punished three or four different times for the same conduct the state can charge you three or four different ways but you can't be punished three or four different times for the same conduct so in this case we've got one thing that the state thinks that Bo Duke's dead they think that he helped Ryan Hyde tears body they think that he is and how they've charged at is that he knowingly destroyed the body by burning it that he helped hindered the apprehension of Ryan by burning tears body and that helped conceal the death by burning her body so all three of those are charged on the same conduct the one act of burning her body so they can charge a three different ways because there's three different crimes that actually fit that act what they can't do as they can get three separate aggregate punishments so what that means is that they can get ten plus ten plus five which would total twenty five twenty five years so I was defending bow I would be arguing that these all merge together and the most of Bowe is facing is actually ten years in prison because count three which carries five years would merge into account too and then count to one margin account one and so that leaves us with a total of ten years in prison and or murder so that's what I would be explaining to Bo Duke says his real possibility of what he could get as far as time won't these states counter argument because the elements of each offense are different it is the same transaction is the same conduct but each actual crime that he's been charged with has different elements to it so well with the state's argument be in response to your merger argument is to the state if they were responding would say that it's a different the act of burning the body is the same but the goal of the crime is different some count one they would be arguing that the goal was to hinder the discovery of her body in count two they would say the goal is to obstruct the prosecution of Ryan Dukes count three they would say that the goal was to actually make him not be able to be found make him not be able to be hindered apprehended or punished Ryan Dukes so all of them are essentially helping Ryan but in a different way now let's look at counter to that deals with tampering with evidence from the rest for happen the arrest warrants allege simply that he tampered with evidence now the indictment brings in and references a another specific code section that of Georgia's Criminal procedure Code title seventeen and they reference seventeen ten days six point one What does that count too there's essentially three different code sections that you could be charged with tampering with evidence can be a misdemeanor if the crime that you're tampering with the evidence of is a misdemeanor it can be a felony punishable by one to three years if the crime that your alleged to have tampered with the evidence of is just a general felony but if it's a serious violent felonies such as murder there's what we call a sentence enhancement you can get up to ten years and so what that means is that when they say tampering with evidence there's gotta be a crime that you're tampering with the evidence of that crime and so when the crime is murder when it's a serious violent felony under Georgia law you can get more time you can get up to ten years in prison since it's almost like a degree when you hear about degrees of murder first degree second degree you can get different punishments for those degrees that sort of what this is you've got a misdemeanor degree which he can get twelve months in jail you've got a general felony degree we can get three years in prison and then you've got what we've got charged here which is the highest it's tampering with evidence of a serious violent felony and so that's the highest degree and you can get up to ten years in prison on that so basically this is going well down to what the judge decides if there's a conviction on any or all these counts is good to know what the judge decides on whether or not there's merger because if I'm understanding you and I agree with you about the way the minimum if the Celts merge would be ten years in prison the maximum that they don't merge could be twenty five yes it is up to the judge in that's one of the few areas in Georgia law that you can actually peel on so let's say that Bo even took a plea and they disagreed on the merger he actually can still appeal on that and so he can actually get an appellate court to decide whether or not these counts murder not I can tell you George is pretty liberal in merger they tend to find the law tends to find that things merge unless there's something in the statute that specifically says they don't march and so we've got certain code sections in Georgia that the Legislature has said you know what these are going to merge again statue for example the game statue that anything related to gangs doesn't march but this type of crime there's nothing that says it does emerge and so the law as is most likely going to say that it doesn't so I think most folks would agree that the most he's facing is ten years ok so this indictment against well both of them quite frankly talk about the ledges that the statue limitations was told now I explain the most recent episode of up and vanish that the statute of limitations for these offenses the bows facing ordinarily would be four years there are certain types of offenses that have longer statute of limitations that would apply so they've alleged that the statute of limitations was told T O L D Cola wars the clock is stopped kicking in the indictment says for self as in that the crime was unknown until February of twenty seventeen Now when I first read that language it was sort of surprising to me they did not say what date specifically in February became known when you say about that I think the government the state is always trying to be as vague as humanly possible in these indictments and the other trying to do because whatever they say in here they've got to prove so if they said February fifth they've got a proof every fifth so they're going to be as vague as possible and then flip it back to the defense to say you know why you're too vague you are specific enough and if the defense is not on their game is not challenging at them there's really no harm in the state gets away with being exceptionally vague I think it's interesting that they said it wasn't known until February because this just opens up so many issues for us as defendants and as defense counsel for Sasha limitations I mean I think that this is right for a statue of limitations challenge because just because the government says you know what the statutes told that doesn't mean the statute necessarily is told just because they say that was told to lay the legal question right it's completely legal questions a question for Judge or jury they can ask the defense can actually ask a judge ahead of time to do something called a plea in bar or a demure are but a demure is really it's a Latin term for you want to quiet the indictment demure quieting the indictment which ones are sort of making it go away it's not speaking anymore and so that's one way that you can challenge it you can only file that if the statute limitations issue is known on the face of this document to do demure you can't go beyond these three pages you can take extra evidence or anything like that I don't necessarily think the mirrors the right avenue here I would go with the next option which is what's called a plea in bar that's exactly what I thing too because the plea in bar if it's granted is is basically the judge saying you know you can't go forward with these charges exactly it is the judge saying that we're barring prosecution we are stopping prosecution I mean it's the closest thing to dismissal we have in criminal law and it's it's better than a general dismissal because it stops them from being able to bring the charges back later on right to live if the demure or is granted they can always go back and fix the indictment in whatever way it the judge says is defective right exactly so now there's so let's talk about that third way which I think is most interesting way because you can't move going to just decide to go ahead and foul is called a statutory demand for speedy trial and force them to bring him to trial perhaps even before they plan on trying asserted trial statute of limitations defense in front of the jury yes definitely I mean the insidious two things to talk about their The first is the stash limitations defense at a jury trial the state has to prove that they have brought this crimes prosecution within the statue limitations so that is something the twelve jurors twelve citizens would have to decide not to judge so when you put in the hands of citizens that opens up whole new ballgame and holy cow norms for defendant it's a lot easier to convince jurors the judge necessarily that a crime occurred within a certain amount of time and to the prosecution would have to prove that they didn't know about this until February twenty seventeen well now I ask you about that who is it then that would have to know because aren't all peace officers all law enforcement officers agents of the state for purposes of statute of limitations so if any police officer or any law enforcement officer has any knowledge about this isn't that knowledge imputed to the state for purposes of the statute of limitations it is definitely any law enforcement officer and so you have is you have a very interesting trial not really focusing on guilt or innocence but focusing on when law enforcement knew about this when the prosecution knew about it when the crime was actually prosecuted because if if Bo can show that law enforcement knew about this before the statue limitations would have run the city will need to know about this anathema to all the details of this whatever it is no they just have to know that a crime occurred that's it I don't have to know specifics they just have to know that the crime occurred and so what the law says is that the subjective opinion of the district attorney as to whether or not there was enough evidence to file charges that doesn't matter it's not a subjective opinion that's not enough the statue limitations runs as soon as law enforcement officers know that someone has committed an act we know that days following Karen's disappearance and then of course the weeks in the month there were lots of tips and there were lots of general searches of things to happen all over the place but hypothetically let's say that a local law enforcement officer got wind of the essence if not the details but at least the essence of what a legend this indictment against Bo and then conducted two searches based upon that that would be the date if that's the first time that won four state knew about this and it would be obviously would be evidence if local law enforcement was doing something to investigate it if they knew about it prior to the Sasha limitations running in this case it's four years prior to it to the four years after essentially what they would have is four years from that date so let's say law enforcement knew about this some local law enforcement knew about this five years ago although they had for years from the date that that law enforcement officer first found out about it to prosecute price list here in this scenario just a little bit further now ok let's say that a judge or a jury has decided that the statute of limitations prevents the prosecution of Bo do because there was at least some general knowledge by at least one law enforcement officer of the essence of all this then was that due to the trial of Ryan Alexander do if Bo becomes a witness it almost gives Bo a free card to testify because he would be protected by double jeopardy and so if if this case went to injury and that injury or that judge found that the statute limitations was violated and that Bo Duke's hadn't been prosecuted within the four year statute limitations then first of all jeopardy when it asked him what that means jeopardy is where you placed in harms way of a crime so we all hear about double jeopardy said that would attach double jeopardy would attach at that point if you are a landlord how do you know that it has good credit history of paying their bills late reading it n it can cost as much as thirty five hundred dollars to take a whole month to complete them until you're all smart move if I know you don't know about your 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think that's really interesting scenario that could possibly play out it would make me very nervous as his attorney but thinking through I can't imagine any other crime that he could be prosecuted for because jeopardy would attach for anything related to this murder concealing the murder so he went and he testified at the trial of Ryan that he was actually the one that did it jeopardy would protect him he wouldn't be able to be prosecuted now the federal government has pre week double jeopardy laws which most people don't know but I can't think of any federal crime I can think of how this case could get into federal court because you've gotta have something called jurisdiction to get into federal court and say you'd have to have someone taking a body across state lines or something like that that's when we see Federal Court invokes some government agent is harmed or some government agency is involved and we just don't have this year this is strictly a state court crime so it would appear that he could get on the stands at Ryan's trial and say pretty much whatever he wants about this murder and be protected if they went the route of doing a plea in bar in the plea in bar was granted in the judge says you can be prosecuted based on statue limitations in that scenario he would not be able to take the stand and say I'm the one that killed her because there's no statute of limitations for murder correct right exactly what we have there's a plea in bar were jeopardy had not attached and in Georgia for jeopardy to attach you've got to have a jury sworn so in a case of a jury trial the jury actually has to be sworn after they're picked and selected they take an oath and once they take that oath and they're actually sworn in jeopardy attaches or in the instance of a bench trial if there is no jury you've got to have the first witness worn to the first witness who takes their oath to tell the truth that's when jeopardy attaches if neither of those two things occur in jeopardy has attached so if the state dismisses the charges or the judge dismissed the charges are or grant a plea in bar jeopardy when attached because neither of those two things would've happened set in the last episode that there's a possibility in the event that a plea in bar were granted or somehow there was a double jeopardy defense asserted that Ryan able to plead the fifth in the traditional sense because he wouldn't be facing any any jeopardy for these crimes he's been accused of but now that Georgia has another limited privilege that has to do with things that made her bring in for me upon you talk about that just a little bit but we've got a very interesting privileges sort of an old school Georgia privilege that says that you can't be compelled to testify to things that would bring in for me against your family and so if if Bo did something that his lawyer could arguably say would would bring in for me against his reputation or his family's reputation he can't be compelled to testify normally we see that in instances where folks have cheated or there some type of molestation or incest or there some type of unison as a prosecutor I know I had a case once where someone had been a female dancer stripper and she'll sort of that privilege and we had an issue with that whether or not she could tell you courts don't like this privilege it's very restricted now would be up to the judge whether or not he had that privilege but let's say he got up there and he said You know I'm in a circus privilege to say I am not going to testify because it will bring in for me upon my family will the court is probably going to say you know what sorry we're not going give you that we're not going to protect you and that's because says are actually talking about law you actually get some legal research the only three days and so what that this privilege this limited privilege to dealing with infamy is something the courts limit to things that are are really collateral if the issue is Are you to Ryan burning a body in destroying evidence and has Ryan made statements to use another word confess to you about things that's not really collateral to the issue of whether or not Ryan is guilty of the murder I write not at all you and I were talking about last week and saying Have you ever had someone use this privilege it's just so rare that I think most lawyers can count on one hand the times that they've ever heard this come up I've never seen I only ever had it once and it was actually in regards to a civil case and it was that one instance where the lady had done some work as a female dancer and was asserting that she didn't want to testify about that about some other affairs because it would bring in for me upon her family and that was the only woman ever even heard of it or seen it used and as we both know that the courts what evidence they want all of our laws or codes favor the admission of evidence and so the court is going to be very reluctant to ever say that someone who knew something has firsthand knowledge of a crime can testify because of this I did something happen especially in the unique scenario this case we know that Bo even perhaps in violation of the gag order he's been talking about what he did and he's not been shy about getting information out there his girlfriend now has been on the podcast talking about everything that happened so it's not like is some giant secret if there's any disgrace or infamy that might be brought upon him this information well it's already out there the cat's out of the bag we say in law you can't put the toothpaste back in the two right you can do that would undercut any privilege that he says he would have to keep this disgrace from his family because they've already heard it the disgrace is already happened and so it's really that privilege is for things that aren't known that you know in the one example that I can give where that woman didn't want to testify publicly about her past as a as a dancer because her family didn't know her kids in now and so that would have brought the disgrace that she was talking about because it wasn't known but if it that it would have been a whole different ballgame and so in this case I think because it's so well he's not going to be able to use that the best option he's got if he wants to not be forced to testify is to come up with some sort of fit the moment privilege some sort of privilege against his own testifying against himself essentially if the statute of limitations prevents him from being prosecuted that's going to be the very tall order so I think there's some strategy decisions that he has counsel are going to have to make about how they're going to move forward because it seems to me that something has gotten sideways with any plea deal or immunity deal the above may have had on the table because we don't waiving the right to Granger e the district attorney presented the case the grand jury added this innocent cancer in their mask as if our witness or a client who is a cooperating witness I would say to the DA look we're going to Wayne Granger you just file the accusation and just keep it open and then we'll deal with the resolution of it after my client testifies guess right that's how I'll handle I would as well I mean if I'm trying to get something from the government I'm not gonna make them jump through the hoops of having to indict a case because we all know they can indict a ham sandwich so what is really is it's just extra steps for them at this point to going from the grand jury so I'm trying to play nice in the sandbox and get a deal for my client my client is cooperating and the government's cooperating there's really no reason for us to go and make a grand jury indict the case because the charges are going to be dictated by our agreement if we agree to certain charges or agree to plea to certain charges then there's really no point the grand jury indicted yet I think the fact that they've put in here about this tolling is very interesting and tells me that they're they're fighting that they're not green because why would the government go to such links to protect their indictment are putting in here about the tolling they're putting in here evidence that says they want these charges to stick they want them to go forward so that just tells me that maybe they're not cooperating maybe there's not some type of plea deal in place ur some agreement arranged things you brought the Moscow backed in and let's review some of the the evidence that would get in the case now I want to read is a screenshot of a text message that both sent to his old army buddy dare ok it's a conversation between them there and later provided the pain okay and so it starts fast saying this and Aaron is asking says so will and then they let you go after the trial question mark and Bo's response is No I won't be arrested or prosecuted at all Daryn responds You're lucky as fuck Bo's response to that is I'm glad my grandfather is alive for this he would fucking kill me Daryn says Dude ii think your family will disown you question mark my family would buzz response I don't know they haven't exactly reached out probably OK we've got that lesson discussed before on the podcast then this is something the new relatively that pain has shared with me so that we can talk about it today and it sort of new discussion for the podcast again this is new information we have delved into this too much but this is a conversation that was between Beau du and his lawyer and it was done by text message in this text message was then forwarded to Daryn who in turn forwarded it back to pain so let me let me read this and this is a quote directly from the text messaging between Bo and Aaron and these are apparently the words of the lawyer representing this is not something I necessarily wanted to send that text but I am also not where I can talk at the moment and this did need to weigh out call us and is unable to Ben Hill County has decided due to political pressure to save face or any other number of bullshit reasons to issue an arrest warrant for you this is over my objection I am still awaiting the final particulars but believe it will be either for evidence tampering or concealment of a death you will not be arrested at home but will need to self surrender as of now that would be tomorrow at the Fitzgerald Sheriff's Office ten thirty am you can ride with me or ask to meet you there I'm trying to get bond set in advance and then they go all to say and this is apparently the words of his lawyer to blowback text message quote At this point and given this development I don't want you talking to GBI special agent should tell any further that any kind of further assistance is on hold indefinitely if he calls you just declined to talk to him and tell him to call me I've already advise the DA of this so he should not be contacting you but just in case this is a very disappointing move on the state park but we will get through this and if we have to fight it out so be it J P F the initials of the attorney now given that information it seems to me de whatever the deal or may lows at least at some point and to some degrees is going sideways what's your take I completely agree and it sounds like they had some agreement whether or not be in what the agreement was and that didn't work out because as the attorney if they had promised that your clients not going to get arrested if a client helps the listener gets arrested soar through the deal off because that's a big difference being arrested has not been arrested so it sounds like the deal was undermined in whether or not it's still in place it sounds like it definitely was altered or changed some some level want to go and introduce you to the new Sleep Number three sixty smart bed just like all their sleep number beds the Sleep Number three sixty lets you choose what your ideal firmness and support is on each side of the 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