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 4th, 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 5th 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 18th, 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. (more…)