Civil As An Oxymoron

Desiree Young, Kyron’s biological mother and arguably the bravest soul in recent memory as far as the frantic and grieving mom’s of missing children’s set is concerned, believes her youngest son has been kidnapped by Terri Horman.

Or that she arranged for same by some unknown party and is demanding his location or the location of his remains.

Her recent civil suit filed by Eldon Rosenthal makes these direct allegations against the woman that by her own admission,  she  entrusted with the care of her toddler son in 2003.

Her suit is demanding $10 million dollars with a reservation to amend to include punitive damages later.  The complaint is 5 pages long, or apparently $2million a page.

Last month a ruling by Judge Harry Kantor denying an abatement motion will allow the suit to proceed, for now.

The decision was widely seen as a win for Desiree Young in her tenacious quest to seek answers in the disappearance of her son Kyron from The Skyline School on June 4^th, 2010.   Headlines throughout the region and the evening talking head regulars praised the Judge’s decision for the Mom who has had no previous success in very public campaigns to engage Terri Horman’s cooperation in the investigation.

The legal community however, not so much.  The decision to move the case forward relied largely on the fact that although it was patently clear from Ms. Young’s filing and subsequent public commentary by her and counsel Eldon Rosenthal that she alleges Horman has committed criminal acts resulting in the disappearance of Kyron Horman.

Terri Horman has neither been declared a suspect by police nor has she been indicted by a grand jury who continues to meet on the case.

Kaine Horman, Kyron’s father, learned about the suit filed by his former wife by a member of the media seeking comment on his reaction to it.   He has not been made a party to the civil action although he was awarded primary physical custody of the couple’s son in March, 2004.

I count myself with the thousands that want this aggrieved Mother and Father to locate their child regardless of the outcome.

That said, it is ridiculous to think a woman whose criminal attorney has advised her not to respond to a twice- renewed restraining order precluding her from seeing her now 3 year old daughter is going to utter a syllable outside of assertion of her 5^th amendment rights during any deposition she is compelled to participate in.

On  June  4,  2010,  Terri  Horman,  acting  alone  or  in  concert  with  others, intentionally kidnapped Kyron Horman from ; Skyline Elementary School.  Kyron has not been seen or heard from by either of his parents since prior to Terri Horman taking Kyron to school that morning.

Did Not Miss The Memo

The Honorable Harry Kantor penned an accompanying order memorandum to his ruling following oral arguments on August 18^th, It is  worthy of the Honorable Belvin Perry’s stamp of approval- with the exception of course that is does not contain the phrase, “no earthly idea.”

It did however; contain the first ever direct statement that Terri Horman is a suspect in the investigation, a PRIME suspect, no less.  In pertinent part:

“..The focus of the defendant’s motion is to stop the prosecution of this civil case while an ongoing active criminal investigation into both young Kyron Horman’s disappearance in 2010 and a murder-for-hire plot against Kyron’s father, Kaine Horman, is pending, so that the defendant (Terri Horman, Kyron’s step-mother and Kaine’s wife) is not required to decide whether to exercise her constitutional rights against self-incrimination under the United States and Oregon Constitutions before it is necessary to do so in any criminal prosecution which may follow the investigation. The plaintiff is Kyron ‘smother.  The defendant is a prime suspect in the investigation  …” (emphasis added by me)

Interestingly, Judge Kantor takes it upon himself to declare Terri Horman a prime suspect in BOTH the ongoing criminal investigations of a murder for hire plot and Kyron’s disappearance.

While it is a fair statement to say that both sides agree that Terri Horman is the subject or focus via “laser pointer” of the investigation into Kyron’s disappearance and her attorneys used that point to support abatement.  At no time and in no document or filing has either side said Terri Horman was a prime suspect of anything?  Where does Judge Kantor come by such information?

For his Honor to state his concern over tainting a jury pool, and then to allege, or divulge, as it were, that Terri Horman is a prime suspect in a murder for hire plot in an ongoing criminal investigation-  is he  privy to such information from some alternative source that is not contained on the record?

A request for any exparte information should be forthcoming.   Where is the conversation with District Attorney Rod Underhill or his office read into the record?  It has not been.

Lea Conner, Washington Family Attorney and BOC legal analyst sees Judge Kantor’s take differently:

“…The judge is not referring exclusively to the Desiree Young lawsuit.

Kaine Horman claimed in his TRO petition that law enforcement provided him with probable cause to believe that Terri Horman had attempted to hire someone to kill him.

He again made the same claim in papers filed after the TRO petition (specifically alleging that Terri was sexting the landscaper who she wanted to murder him, then allegedly sexted Michael Cook). 

 Kaine reiterated his allegations a third time in papers he filed last fall in response to Terri Horman’s motion for parenting time. 

 Kaine once again claimed Terri Horman tried to hire a hit man when he sought to renew the restraining order in 2011. There was an additional line added to the renewal, and though it sounded like something new, it was just Kaine reiterating the same allegations. 

 The Confrontation Clause of the Sixth Amendment applies to criminal matters, and it does not allow prior testimonial statements of witnesses to be admitted where the witness has since become unavailable. Crawford v. Washington, 541 U.S. 36 (2004). 

 Here, we are talking about a civil matter. The Confrontation Clause and the holding of Crawford do not apply to civil matters or other non-criminal proceedings…”

In Oregon, a special appearance is used by a party who wishes to vacate an unauthorized proceeding without consenting to jurisdiction of the court:

A “special appearance” is made by a party when he or his attorney seeks to obtain from the court an order vacating some proceeding which, it is insisted, has been undertaken by the adverse party in an unauthorized manner; such an appearance being thus limited to prevent conferring jurisdiction of the person.  Again, Ms. Conner’s thoughts:

…” The more I think about it, the more I am convinced that the judge’s point was the last couple of pages that says Terri Horman’s lawyers cannot make any motion without appearing. This is to say that a special appearance allows a challenge as to the validity of a specific action, but it does not otherwise allow an attorney (nor a party) to file other types of motions or to seek other relief, as was done here.

The abatement that the attorneys sought would act as a protective order. Abatement is not a challenge to the propriety nor validity of the underlying action. As such, Terri Horman’s lawyers needed to appear before filing a motion as to the issue of abatement. ..”

Judge Kantor chose the teamwork approach in an adversarial proceeding, and instructed Terri Horman’s counsel they will need to file an appearance.   He attempts to present the case’s challenges to both sides and seeks input as to how best to protect the rights of the defendant, in pertinent part:

The court does not have any particular length of time for this delay in mind at this juncture. lnstead, the court would like the parties and their lawyers to consult and confer about the following and then report back:

1.  Should the court require the defendant to file an answer to the complaint which admits or denies the plaintiffs allegations or simply allow the defendant to litigate as if she denied those allegations?  If so, by when and for how long?

2.   Should the plaintiff be required to establish “reasonable suspicion” or “probable cause” (as defined in criminal cases) that the defendant has done what is alleged through other evidence before the defendant is required to answer oral or written deposition questions under oath?

3.   Should the plaintiff be required to serve written deposition questions, which would be subject to court review upon proper motion, and review the answers before taking the defendant’s oral deposition?

 Once the court has the parties’ answers to these questions, I will meet with the lawyers to form a schedule and plan for this case.  Further briefing and hearings may be required as well.

Defacto Suspect  Is Defacto Parent?

History is rife with hellacious stories of parents killing their own children,  their own families, and ones parent status should not be considered a reason to exclude anyone.  In fact, as we all know,  it is 90% more likely that Kyron disappeared due to the actions of a parent or family member and all law enforcement investigators  begin a parallel investigation of all with access or motive, from the start.

A hypotenuse only exists within a right triangle.   This case is anything but.

Horman, through her attorneys has already certified she will protect her right not to incriminate herself and considering one of the remedies Ms. Young is seeking is that she does just that-  who chaired the risk vs. reward strategy meeting in this case in its current form?

In Horman’s favor,  Oregon law is one of few in the country that specifies that a jury cannot take the fact that she pleads the fifth and ostensibly cannot or is very limited in her ability to defend her case into its deliberation considerations.

Has Desiree Young been appropriately prepared for the litany of possibilities that might arise out of this filing?

Like, say,  a counter suit or an effective defense resulting in a dismissal with prejudice? An award for Horman’s  attorney fees ?

For the record, for those of you cringing while reading that remark,  I cringed at writing it.

When someone files a purposefully vague claim against another accusing them of a criminal act (s) they will be beyond  its tensile strength to support,  many possibilities of alternative defense strategies  become available to the DEFENDANT.

Ms. Young’s complaint made criminal accusations in a civil action that all agree parallel current criminal investigations.   However, even if Horman was in a position to defend herself without violating her fifth amendment right,  as it is written- the complaint is not even “answerable”.

“I believe we will be able to prove what happened in this case,”- Eldon Rosenthal

Oh? The preponderance of evidence limbo -stick notwithstanding, let’s be honest,  it is going to be virtually impossible to prove Kyron was removed from the state with all parties including law enforcement openly stating they have no idea where he is or how he got there.

Outside of that conviction for first degree custodial interference which certainly seems unlikely because nobody is facing such a charge to date, the prima facie reverts to finding Terri Horman liable on the other counts in civil court.

According to legal analyst Bruce McCain, who has closely been following the Kyron case, the suit will be “near impossible to prove, especially when an element of second degree custodial interference is that Terri acted with the intent to hold Kyron permanently of for a protracted period of time.”

Multnomah County Sheriff’s Office has never even classified Kyron’s case as abduction and he is only listed as a missing person on the FBI’s site.  Typically crimes need a crime scene, and the Skyline School has certainly never been declared one and astonishingly has not been named a party to this suit.  More on that in part 2 of this series.

In summary,  Desiree Young is making three allegations.  She is claiming either on her own or with help, Terri  kidnapped her son Kyron Horman from the Skyline School.   Desiree’s own words contradict this claim as to kidnapping:

“She dropped him off that day, but that’s all we know.” – Desiree Young

 Desiree is also claiming the intentional infliction of emotional distress through feigning ignorance of the events of June 4, 2010, lying to investigators and lying to the media.  Not one quote, not one example is offered in support of this allegation.  How can one possibly prove intentional infliction if such statements were never actually uttered to the plaintiff?   How does lying to an investigator , if in fact she did,  about unknown subject matter,  equate to probable cause of the allegation?

What is it’s nexus directly to Desiree Young exactly?  Not having the answer in place for that is going to spawn more than a few mutterings of “bad faith” at the bar meetings next month.

Tony Young has stated that as a collegial gesture, he was NOT given any information about the specifics in the investigation of Kyron’s disappearance and has publicly only said “If not Terri than who?”

Peter Bunch called the suit law enforcements  stalking horse.   Judge Kantor seems to agree with Bunch that due to the protection of the ongoing criminal case,  that participation from any law enforcement personnel will be non-existent.   Rosenthal seems to be more optimistic in his deuces tecum prowess, apparently.

Bruce McCain, could not be more on point.  The burden to prove the allegations against Terri  Horman  rest squarely on her accuser.  MCSO recently participated in the filming of  Americas Most Wanted, and have spoken publicly about the case on numerous occasions.  They have allegedly provided information directly to Desiree Young and Kaine Horman, which is now a matter of public record.

Deposing a law enforcement officer or twenty prior to the  possible future criminal filing against your client with the knowledge none of the information has gleaned an indictment to date, is the equivalent to the key to the evidence locker of the case.  Will it be a game of quash for all?  Certainly, and Bunch has already said so.

“I have nothing to say about Terri Horman” Captain Jason Gates, MCSO

I have never seen Terri Horman give a recorded press interview.  I am aware of no statute that exists to compel anyone to be honest with a member of the media on your doorstep seeking  comment.  ( although I might be in favor that as a card carrier- )

The scales of lady justice require balance for a reason.  Glenn Close and Rose Byrne have already concluded the final season of Damages and I dare say those producers have more manufactured story line of fake criminal cases then this very real situation could deliver for fiction-even.

If Terri Horman, through counsel, decides to file for a dismissal of the suit, or defend it in PART- as it appears Judge Kantor has already laid the groundwork for, what should we expect?

You  have to respect a judge who is coaching from the bench, and he did.

Technically speaking, under Oregon law,  Terri Horman was Kyron Horman’s defacto or psychological parent.    The “best interest” standard is a relatively low threshold in this case.  Please see review courtesy of Kramer Associates regarding “After Troxel.”  (link : http://www.kramer-associates.com/mkgrandparentsrightsaftertroxel.pdfKramer Associates)

I asked  Atty Lea Conner to weigh in on this possible third party parent strategy  to challenge standing of Ms. Young’s suit, as well as any impeachment or award matrix issues :

“…Third party custody issues are tricky in any case.  You need to refer to Troxel v, Granville – Troxel is a US Supreme Court ruling that a parent’s rights trump those of third parties.-  One Oregon case cited (Wilson v. Wilson) is particularly devastating to Terri Horman. In Wilson, the court found that custody must be awarded to the mother in order to preserve a sibling relationship between the natural child of the mother and the common child (AKA “joint child”) of both parties-  

The Wilson case is interesting, because potentially, a parent contemplating divorce with contested custody might want to discourage the relationship between natural child of one party in order to prevent the natural parent from gaining an advantage in obtaining custody. Could Terri Horman argue that this was Kaine’s motive in sending James to live in Roseburg in early 2010? (Kaine denies sending James away, and claims that it was Terri’s fault that he moved. James and his father in Roseburg have made statements indicating James and Kaine had ongoing conflict, which contradicts Kaine’s version of events and supports Terri Horman’s claims.)”

The Troxel case has affected laws in virtually all of the states, and has significantly reduced previously recognized rights of grandparents, step-parents and psychological parents in favor of birth parents.

Why Terri Horman may be in a position to defend her relationship with Kyron, but not as a parent per se:

5.        Wilson and Wilson,  184 Or App 212 (2002), CA A113524.  Custody of stepchild awarded to stepfather,  along with parties’  joint child, reversed.   Under   Troxel,  custody of the mother’s natural child must be awarded to fit birth mother and because of the sibling relationship, custody of the parties’ joint child must also be awarded to mother.  [See Case Note 20 discussion below for Court of Appeals decision on remand from Supreme Court.]

Interestingly, I note that nobody brought up the fact that Desiree once accused Kaine Horman of at least the possibility that he was capable of kidnapping her sons, and was granted a restraining order based on the potential recognized by the court in a similar possible offense.

 “.. our Lives are no longer private.  Investigators are going to want very detailed information of our personal lives..”    Tony Young,  Kyron Horman’s stepfather.

What will absolutely add insult to injury in this case will be  the fact that in order to indirectly defend Terri Horman,  her lawyers will need to vilify Desiree young in front of a jury.   They will have to remove the more than deserving,  grieving and egregiously wronged Mother’s invisible halo,  and they have enough to work with.  There is no way around it as unfair as it seems,  it is what it is.

EDIT NOTE: In August 1995 a woman with the same name as  Desiree Davidson  was living with a man who was a convicted felon and the target of more than a few secret indictments a few years earlier.   She filed a Family Abuse Protection Complaint against him for assault and he was arrested on a separate felony charge a week later.  David Roy Davis may be connected to an entirely different Desiree,  but the record came through on a search under Ms. Young’s date of birth as well.  The point is, their will be lots of digging on everyone.

In March of 2004,  Desiree Young claimed that serious liver problems from an undisclosed,   non- FDA approved medicine required her to move to Canada for treatment. She relinquished physical custody of both her sons under the guise that she would not be required to now pay child support as filed in the stipulations of the respective cases.  Ms. Young maintained a  Seattle, WA address  at that time and the last custody order states a very different custody arrangement than what Desiree has mentioned publicly.

If she was seeing Kyron more than once a month,  then it was by verbal agreement with Kaine’s approval but this is yet again an unfortunate example of impeachment possibility.  The “seeking treatment “details will unfortunately be public information that she has refused  to discuss. You get the idea.

Desiree has also admitted asking Kaine to consider  modifying the custody arrangement and allowing Kyron to go live with her.  Kaine said no and would not discuss it further, but  Terri Horman was in favor of it.

Both Desiree and Kaine have conceded Kyron had a few issues of concern in school the prior part of the year, in fact they went so far as to say they were concerned their reaction to it with him might have played a part in his disappearance.

How is it that if having issues at school can be a helpful argument to a non-custodial parent seeking custody modification that nobody considered that Terri was actually working to support Desiree’s possible case?

Kaine has confirmed that they had a discussion about a doctor appointment for Kyron, so this possibility has corroboration.

For the past 2+ years Desiree Young  has done everything conceivable to progress answers in the disappearance of her son and I applaud her for that.  I am equally as concerned about the emotional toll this lawsuit will take on her as I have been about the effects of the loss of her son.

Catch as Catch Can

Omitted entirely in any coverage of  Judge Kantor’s order and memo  announcement or previous reactions to the civil filings, is the fact that if Terri Horman is or was involved in the disappearance of Kyron Horman, she is about to get a front row seat to the case against her without saying a word.

Under current criminal procedure in Oregon,  once a person is indicted,  the defendant receives little more than the actual indictment order.   This is usually under seal until an arrest warrant is executed, but it does not contain witnesses, testimony, evidence or any hint at the content that was discussed since the grand jury began reviewing the case and the triers of fact rendered a verdict to indict the party.

In this parallel discovery minefield, arguably tantamount to a mock trial in front of a defacto suspect,  the plaintiff will be forced to compel  witnesses that have testified before the grand jury,  any evidence they have been made aware of, and in some cases they have not, and all of this essentially erodes the sanctity of the grand jury advantage over a criminal defendant.  In particular, Oregon uses the grand jury proceeding as many other states use a preliminary hearing.  And btw, this is Stephen Houze’s  dominion.

While Bunch’s motion for abatement indicates police will refuse to turn over documents or materials pointing to guilt or exculpation, they simply cannot assist the plaintiff without assisting the defense as the discovery is reciprocal across the board.   That said, I would expect  District Attorney Rod Underhill to seek protection orders against releasing  any information classified as part of the case file of an active criminal investigation.

How will that work if the majority of information is clearly being conveyed in an ad hoc method of  “you can refer to it in your filings but we will not produce it for your use at a civil trial?”

The reality is that if Terri Horman is involved in the disappearance of Kyron Horman in any capacity this suit as it is structured in the instant matter will do more to assist her defense team than it will ever produce  incriminating  and usable intelligence to indict her.

It will not  provide any detail as to Ky’s whereabouts that MCSO does not already know.

I can hear the protagonists in my ear already-  but the scope of criminal subpoena power and reach is intensely more narrow than that of the civil standard so won’t this be an opportunity to glean information LE did not have access to?

Who in their right mind believes that  nine multi-disciplined Federal  and State Law Enforcement Agencies including those tasked with measures and responsibility of our National Security did not or do not have access to every shred of data a civil order can produce?

The Honorable Judge Kantor requested a position by the District Attorney and invited Underhill to attend the hearing,  whereby  DA Underhill stated he had no position on the matter.

Kantor is allowing the case to move forward absent an indictment or an official position from the DA, but I predict that is a temporary decision.   The DA and MCSO is absolutely going to have a position when the motions to compel discovery arrive by the wheelbarrow followed closely by the freightliner full of FOIA requests.  Once it is released for a civil trial it is releasable to the public.

What- No Joinder?

Lastly, as Kyron’s Father, it is odd that Kaine Horman would not be a party to this action.  If the goal was a behind the scenes tag team to exhaust the funds of Terri Horman over simultaneous cases I sincerely hope that a considerable amount of time was spent on the possibility that they may be waking the sleeping giant.  Desiree Young has an online donation site soliciting funds for her legal fees which injury cases are usually taken on a contingency basis and Kaine Horman has everything to gain by not dividing his assets with his estranged wife in November, when the abatement is lifted.

The fact that a recently retired Civil Attorney who has international homes is willing to come out of retirement to take this case would make me very nervous.  Mark H. Wagner signed on yesterday.

If Terri Horman has nothing to hide as it relates to Kyron’s disappearance, this is her one shot to get her life back and clear her name.

The public pendulum will never be swinging so slowly to hear from her why it should stop- as it is right now.

If she was involved,  in any way, this civil case is going to unearth the unintentional mistakes and snafus of the well meaning mean and women in law enforcement who have worked this case.  It will render it nearly impossible to ever prosecute her successfully whether Kyron is ever located or not.  This legal team will have at least 3 plausible alternative suspects, have the jury blaming law enforcement and believing Kyron is alive somewhere and may be better off.

Don’t shoot the messenger.

It may give a grief-stricken Mother a $10 Million judgment she can never collect, but as Peter Bunch said in his argument, it will not give her the answers she seeks.

I terrified my interrogation subjects, but I never got intelligence.

~ Anthony Lagouranis

Astute.  True.  Maddening for all that are interested in this case but of course begs the question-

If tortboarding will not work,  at some point, does it make sense to start over with a fresh perspective of elimination versus inclusion?

Terri Horman was the immediate suspect in a disappearance and an alleged murder for hire plot where there are gads of comments and facebook images of a happy family and very alive target- Kaine Horman.

When confronted by her alleged accomplice, Rodolpho “Rudy” Sanchez directly in a failed sting rivaling RENO 911- she actually called 911.

The sting was heard by more than a few scanner enthusiasts, as reported exclusively by BOC(insert link)

Why was it decided Terri Horman was the mariticidic filicide in a flash?

And why were all other avenues excluded almost as quickly as Jung opened the window for the scarab?

Coming Soon- Part 2