Saturday, February 22, 2014

And now the MFH CASE against Terri Horman loses STEAM? Or will it the basis for an Appellate decision?

Hearing NOTES from Maxine at the Oregonian on February 20th, 2014

Nuts and Bolts:
Terri Moulton Horman is present , seated beside her two lawyers Peter Bunch and Stephen Houze. She's brought a yellow legal pad to take notes on.

Kaine Horman is present, standing beside the table with his two lawyers Brett Engel and Laura Rackner


The two sides are awaiting Judge Henry Kantor, who is in an unrelated conference in his chambers.

Also present in the courtroom is a lawyer from Multnomah County , and chief deputy district attorney Don Rees...as well as media

Judge's clerk just announced it would be a few minutes before the hearing gets underway, because of Kantor's conference in his chambers.

The court docket has set aside 90 minutes for today's hearing.

Judge Kantor has another unrelated matter scheduled for 11 a.m. today.
Clerk said judge would be out in another minute.
Judge Kantor has arrived. Attorneys identifying themselves in court.


Attorney Brett Engel: Says he objects to debate about matters that's already been decided by the judge. (instead of standing each time to object)

Attorney Stephen Houze: Tells the judge we're not talking about some "garden variety'' issue, but something that touches upon the liberty interests of Terri Horman in a parent-child relationship.

"We're here for a very important matter,'' he said.

Houze said the record hasn't been complete before the court, and he's here to make that record.

Attorney Stephen Houze is recounting the background involving the landscaper's testimony:

Says Kaine Horman's lawyers have relied upon landscaper Rodolfo Sanchez's contentions regarding "some sort of plot'' to kill Kaine Horman to obtain a restraining order against Terri Horman.

Now, Kaine Horman's lawyers want to use Sanchez's deposition from November (notes there was an interpreter present when the deposition was taken by Kaine Horman's lawyers) to argue against any parenting time be allowed between Terri Horman and her daughter, Kiara.

Houze reiterates that the judge ruled that Terri Horman's lawyers could not cross-examine Sanchez about his last 15-minute conversation with Terri Horman, in which law enforcement was involved.

The subject matter of the Sanchez testimony is either covered by law enforcement privilege or it isn't, Houze argues.

He says Kaine Horman's lawyers have sought to submit a "very self serving'' portion of Sanchez' testimony, without allowing the court to delve into any bias, motive, and credibility of Sanchez.

"What did they do to get him to give them information - did they give him a promise of immunity?" Houze asks .

Judge Kantor: "Normally all of that would be very relevant'' in discovery.

Houze: "Not only relevant...but indispensable,'' he says. To decide anything of this magnitude, "the court must have reliable evidence.''

"This court - by the virtue of this ruling ...would be deprived of the opportunity to have the full picture,'' and be left to speculate.

Need to have this witness confronted and "be put to the test.''

Attorney Houze :

Law enforcement privilege doesn't rise to the level of a constitutional right.

"It's of critical importance,'' to further question Sanchez, because Kaine Horman says Sanchez' testimony is 'proof evidence' that Terri Horman is a danger to her own daughter.

The court shouldn't take Sanchez' testimony on "face value.''
The other side gets to test what's asserted, Houze said.

"How in the world can Rodolfo Sanchez's" testimony taken without the knowledge of law enforcement ....if what he has to say is protected by law enforcement privilege? '' Houze asks.

"How could his deposition have been taken without the knowledge, and likely approval of law enforcement?" Houze asks.

Attorney Houze: Argues that court must decide whether it gives greater weight to the 'law enforcement privilege' than to his client's constitutional rights.

The balancing test must tip toward disclosure, Houze says.
Particularly, in this case, where Kaine Horman's lawyers have decided to present Sanchez's testimony.

"They made a tactical choice'' to insert Sanchez's testimony into this case, but now seek to conceal further questioning of this witness. Houze argues that's unfair and waives 'law enforcement privilege.''

Secondly, if the court does not have ability to test the reliability of Sanchez as a witness, then the court is at a deficit.

"Why in the world did they put it forward- and are fighting so hard to conceal from the court the very info that will help the court determine Sanchez's credibility? "

Houze suggests the court can
1. Allow a regular, fair due process proceeding, and allow cross-examination of Sanchez
or
2. The court must reject the evidence from Sanchez, b/c court can't determine his credibility and reliability - and that would also violate Terri Horman's constitutional rights.

Attorney Houze: The impact of Sanchez's testimony "has already happened,'' - it's been made public.

"The court has been given a one-sided view'' of Sanchez's testimony.

"Either hear the whole story or say 'I'm not going to consider this evidence at all,'' Houze argues.

"Our legal system is amazing. It's the envy of the world, and for good reason. ...It's all about the integrity of the system. It's for people who walk down the street, who aren't lawyers, who say 'we have a fair legal system.'

Talks about how the country's legal principles of the US trumped the stature of former US President Richard Nixon.

"This case, above all perhaps, must operate in accordance with principles of fairness.,'' Houze said.

He asks the court to respectfully "think this through one more time.''

Either allow us the full access of information, and reveal to court what we believe will call into question the credibility of Mr. Sanchez, or not at all, Houze argues.

"You either put it all out for the court to consider, or you don't put any of it,'' Houze argues.

Judge Kantor asks how a professional expert evaluating each parent would find the Sanchez testimony useful.

Attorney Houze replies that he's concerned an expert witness, no matter how professional, could not ignore the Sanchez testimony.

"This court is not a passive participant in the evaluation process...to make sure the evidence that comes to the court is constitutionally permissible and reliable evidence,'' Houze says.

Judge Kantor: "Even without Sanchez, professional experts are going to be left with one side of the story on a variety of issues, noting that Terri Horman is likely not "going to answer very much, and that's ok.''

WIll experts left in the same position - not having the full side of the story - as they are with Mr. Sanchez?

Houze: "No,'' he argues.

"There's certain forbidden fruit in this case, and that's Mr. Sanchez's testimony,'' Houze argues. If all the testimony can't be had, it should be stricken, he says.

Kaine Horman's lawyer Brett Engel:

"If you agree with what they're asking, you must abate this case and I will tell you why,'' Engel says.

Engel said his client will be at a disadvantage if Terri Horman asserts the Fifth Amendment against self-incrimination.
If Terri Horman refuses to answer questions, Engel argues, she must bear the consequence of limited evidence.

"What people seem to forget here is that this protected Sanchez information benefits her. I don't have this information either,'' Engel said.

Says Kaine Horman would love to have the law enforcement information, but he doesn't.

Engel said he found Mr. Sanchez to depose, while Terri Horman's lawyers spent the day speaking to teachers.

Engel says the court already ruled that Sanchez can testify about alleged murder-for-hire plot.

Engel: "Who is going to bear the consequence for this court not having complete information?....The reason the court will not have full information is because she's taking the Fifth ,'' Engel says, referring to Terri Horman.

How can the court ignore the "direct safety risk'' that Mr. Sanchez speaks of? Engel's asks.

Engels: The Sanchez testimony they want to strike all came before law enforcement involvement, he argues.

Judge Kantor asks Engel if he plans to call Terri Horman as a witness.

"If I did, she would take the Fifth,'' Engel replies. Engel says he doesn't know what purpose that would serve, and hasn't decided yet.

Engel argues that he's prevented from meeting the burden of proof, if he can't use the Sanchez testimony at all.

Judge Kantor: Says he has concerns about how long this could go on, if he were to delay or abate this child custody case. The state could take 15 years to resolve this, he said.

"The more time that goes by without contact between mother or daughter,'' the more difficult it would be to repair that relationship, the judge says.

"I appreciate there's not one good answer'' on how to move forward, the judge said, but asked Engel how delaying this further would achieve anything versus doing the best job the court can do to get a resolution.

Engel argues, "There's no constitutional right to see your child.''

He says there's a right to make decisions about a child, but that visitation rights can be denied to a parent who could harm a child.

"The notion that Ms. Horman can come here (and assert) a constitutional right '' for visitation with her child and circumvent the rules of due process is absurd, Engel argues.

"The consequences on Mr. Horman's ability to present his case are very serious'' if the court excludes Mr. Sanchez's testimony, Engel argues.

Says Terri Horman has the right to due process - the right to testify, to cross-examine the witnesses within the evidentiary rules and the right to present her own evidence, the right to exercise the Fifth.

By exercising the Fifth, the court doesn't get to hear the whole story.

"It's not Mr. Horman's problem. It's her problem,'' Engel argues.

(At this point Kantor asks Rees and Carlos what they think he should do about this?  Rees cannot get anything out,  but Carlos states....)  (VW)

Mult. County attorney says law enforcement was not given the opportunity to waive Sanchez's deposition - that law enforcement was not alerted about the deposition.

Houze responds to Engel's argument that Kaine Horman can't prove his case without Sanchez's testimony, "I think tells you just about everything you need to know...Without Sanchez, they don't have a case.''

Houze says abating, or delaying this case further would not be in the best interests of Kiara, the 5-year-old girl at the heart of this custody case.

"It's now almost 4 years that Kiara has not been with her mother. To trivialize the importance of that period of time passing....
To delay this case further, would do grave harm to the child.''

Houze argues that Kaine Horman's lawyers are "perilously close to the line'' in trying to penalize his client for asserting her Fifth Amendment rights.

(VW... Kantor tells Houze he's wrong about "inferring adverse consequences on the 5th), but states:

AFTER the break:

Judge said, it's true, that he did not consider Terri Horman's constitutional arguments at prior hearing, because they were not expressed.

Said there's no basis for him to reconsider the ruling, and is not going to do so.

If he were to reconsider the ruling, I'd adhere to my initial decision. "It would not change,'' Kantor says.

Judge Kantor also says:

"I will not prohibit the evidence at this time."

I will allow Mr. Horman and Ms. Horman to provide a complete record.

It is likely that I will give zero to very little weight that (to that which) cannot be held up to cross-examination or impeachment.

So if the Sanchez testimony turns out to be the only basis to the Kaine Horman case, "perhaps a fresh look has to be in order,'' judge says.

Judge : "I am not going to abate this case.. People's lives have to move on.''

There may be appellate review of my decisions. "It's only going to get worse or more difficult,'' if there's a delay. "So we're going to go forward. There is no plan for me to delay or abate these proceedings.''


To recap:

Judge will allow Kaine Horman's lawyers to present testimony from the landscaper Rodolfo Sanchez, and won't allow cross-examination of the landscaper on any matters involving his last 15-minute conversation with Terri Horman, or his talks with law enforcement.

But judge said he will give little or no weight to evidence that's presented where cross-examination is not permitted.

After court hearing, Kaine Horman spoke to reporters in the lobby of the courthouse.
He had removed his suit jacket and blue dress shirt to reveal a white T-shirt bearing his missing son Kyron's face.

Kaine Horman said he's glad that the custody case is moving foward, but he wants the focus to remain on the search and investigation to find his missing son, and make sure the person responsible for Kyron's disappearance is held accountable.

Terri Horman left the court, with no comment.











5 comments:

  1. I think there is a very good chance it could go to an appellate court.

    Keep up the good work!

    ReplyDelete
  2. VW, I'm sure you are aware, but in the case you aren't, there seems to be more threats against you. (snip) Not only does this creep support Terri, she is also a damn school teacher (floater) for the PPS. That is scary! If you have ever read anything on Oregon Live that Vwolf has wrote. She hates and blames the school just like Terri does.

    Should we now ask this creep, where Kyron is as well?

    ReplyDelete
  3. ROFL at these internet "sleuths". They have no idea who I am. Hope they keep it up. Need more info on the source, though, for my legal paperwork.

    Can you send me the link.

    ReplyDelete
  4. VW, This is where I found it and maybe you can ask the admin? I hope you go after them and what I find quite funny is that they don't realize that people are now looking at the pages and seeing them for what they are; not about Kyron but hate and threats. https://www.facebook.com/pages/Trashys-Too/1424040414476404

    ReplyDelete
  5. Well, good. I'm not going to bother to refute them online. I'll leave that to the experts.
    They may have the JQ moderators bamboozled with their fake complaints of me stalking them, but they will be much harder pressed to find actual evidence to support what their campaign to silence and coerce me into not attending any court hearings in MY OWN courthouse. Especially as a transient Washingtonian demands that I not be there and will be stalked personally and professionally.

    ReplyDelete