« Up and Vanished

Case Evidence 06.26.17


Take a deeper look at the evidence as experts discuss new developments in the case. 

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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
I'm Philip Holloway repaying Linsey on a previous case evidence you heard from it's turning Ashley merchant who joins me today because we are going to come, here, in contrast, the indictments against both Ryan Duke in both dicks you talk about certain things like the statute of limitations and we're gonna talk about how certain privileges may or may not apply with respect to bow in the event he's called testifies witness if there's a trial against Ryan do now in the last case, evidence where you heard from Ashley she gave the full throated defence or how she might do it. With regard to Ryan's case, this is case. Evidence
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Yes, this indictment that both 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 counts, he's 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 wonder. Tenure range for that The second count is tampering with evidence and again he could get up to ten years. On that, it's a wonder. Ten range and the third count is hindering apprehension of a criminal So essentially, that's him hindering the state from finding the person Ryan Duke who they believe, did this wonder five. So in total all of those counts were proved he could. Twenty five years in prison, to a slow, but about the legal concept known as merger of offences, which basically is cases or, if the counts blend together. How does that work
It's interesting merger is based on double jeopardy, and so what the law says is you can't be punished three or four different times for the same conduct? This 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 case we ve got one but the state thinks that both dukes did. They think that he helped Ryan hide terrorist body. They think fit and how they charged it is that he knowingly destroyed the body by burning it that he helped hinder the apprehension of Ryan by burning terrorist body and that he hoped seal the death by burning her body. So all three if those are charged on the same conduct. The one act of burning her body, so they control three different ways, because there's three different crimes that actually fit that act, but what they can't do as they can. Get three separate aggregate punishments, so that means is that they can't 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 are merged together and the most. We are facing is actually ten years in prison because count three which carries yours would margin to count to and then count too would margin to count one, and so that leaves us with a total of ten years in prison under merger. So that's. What I would be explained dukes. Is his real possibility of what he could get as far as time, now what would these states counter argument? Because the well, that's a major fats or different. It is the same transaction is the same conduct, but each sure crown that he's been charged with, has different elements. So what would the states argument be in response to your merger argument? Is that 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 to they were
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 are punished Ryan Dukes, so all them are essentially helping Ryan, but in a different way. Now, let's look good tell that deals with tampering of evidence, when the rest for happen, the arrest warrants allege simply didn't he. Hampered with evidence now the indictment brings in, and references and other specific code section had of Georgia's criminal procedure code, which is title Seventeen and they reference seventeen ten dollar, six point and what is that is sowing count there's, essentially three different codes, sections that you could be charged with tampering with evidence, could be a misdemeanor if the crime that year. Tampering with the evidence of is a misdemeanor. It can be a felony punishable by one
three years, if the crime that you're alleged to have tampered with the evidence of is just a general felony, but it's a serious, violent felony such as murder, there's what we would 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. Crime that your tampering with the evidence of that crime and so on? crime is murder when it's a serious, violent felony under Georgia law. You can get me 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 summits for those degrees. That sort of what this is. You ve got a misdemeanor degree, which you can get twelve months in jail. You ve got general felony degree where you can get three years in prison, and then you ve got what we ve got charged here, which the highest its 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, so. Basically, this is gonna bore down to what the judge decides. If there is a conviction.
Only any or all these counts is good to know what the journeys decides on whether or not there is murdered, because if I understanding. You then I agree with you by the way the minimum The council merge would be ten years in prison and the maximum, if they dont merge, could be twenty five. Yes, it is up to them. I urge in that's one of the few areas in Georgia law that you can actually appeal on. So let's say that bow even took a plea and they disagreed on them. He actually can still appeal on that, and so he can actually get an appellate court to decide whether or not these counts merge or not, and I can tell you Georgia's pretty liberal, in merger. They tend to fight the law tends to find that things merge in law. There's something in the statute that specifically says they dont merge, and so You ve got certain. Could sections in Georgia that the legislature has said you know what the going to a gang statute, for example the gang statute that Anything related to gangs doesn't merge, but this type of crime,
There is nothing that says it doesn't merge, and so the lies is most likely going to say that it does, and so I think most folks would agree that the most used basing his ten years. Ok, so this indictment against, while both of them quite frankly, but we'll talk about bow illness is that the statute of limitations was told now I explained in the most recent episodes then vanish that the statute of limitations for these offences, the boughs facing ordinarily, would be for years. There are certain Types of offences that have longer stay. Of limitation that that wouldn't apply so they ve allege that the statute of limitations was told tee, o L, L, a p d told in other words the clock is start taking and in the environment and says foresight offence. That the crime was unknown until February of twenty seventeen now.
First read that language. It was sort of surprising to me that they did not say what date specifically. In February became known. What do you say about that? I think the government, The state is always trying to be as vague as humanly possible in these indictments. I think that what they are trying to do, because, whatever they say and here they ve got approve. So if they said very fast. They ve got approve February fast, so they're gonna be vague as possible and then flip it back to the defence to say you know what you're too vague. You aren't specific enough, and if the defence is not on their game and is not challenging it, then there is really no harm and the state gets away with being exceptionally vague. I think interesting that they said it wasn't known until February? because this just opens up so many issues for us as defendants and as defence counsel. So if limitations I mean faith, that this is ripe for a statue limitations challenge, because just because the government says you know The statutes told that
mean the statute necessarily is told just because they say in an indictment that it was told. Ultimately the legal question right. It's completely illegal, since the question for judge or jury. They can ask the defence, can actually ask a judge ahead of time to do something how to play in bar or a demure but a demure is really it's a latin term, for you want a quiet. The indictment demure your quieting, the indictment, which means your short 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 statue limitations issue is known on the face of this document, so they do demure. You can't go beyond these three pages. You can't take extra evidence or anything like that, I don't necessarily think I d mirrors the Right avenue here. I would go with them. Stops and which is what I call a plea in bar. That's exactly what I think too, because the plea in bar, if is granted, it is basically a judge, saying you know you can't go forward with these charges exactly it is
judge saying that we are boring prosecution. We are stopping prosecution. I mean it's the closest thing to dismissal. We having criminal law It's better than a general dismissal, because it stops them from being able to bring the charges back later on. Right. Look as if a demure is granted, they can always go back in and fix the indictment in whatever way the judge says is defective right, exact. So now there is another way so Let's talk about that third way, which I think is the most interesting way, because you can't bo, go at distance, to go ahead and file, what's called a statutory demand for speedy trial and force, to bring him to trial. Perhaps even before they plan all trying Ryan and then asserted trial, a statute of limitations, defence and The jury. Oh yeah, that way I mean there and so there's two things to talk about their. The first is the sash limitations. Defence.
At a jury trial, the state has to prove that they have brought this crime this prosecution within the statue imitations. So that is something that twelve jurors twelve citizens would have to decide not to so when you put it in the hands of citizens that opens up a whole ball game and homely can of worms for defend it. It's a lot easier to convince jurors than a judge, necessarily that a crime occur then a certain amount of time, and so the prosecution would have to prove that they didn't know about this until February, twenty seventeen Well, now let me ask you about that. Who is it, then that would have to know because our all peace officers, all law enforcement officers agent, of the state for purposes of statute of limitations. So if any, police officer. Any law enforcement answer has Any knowledge about this that knowledge imputed to the state for purposes of the statute of limitations, it is definitely any law enforcement officer, and so what you'd have, as you have a very interesting trial, not really focusing
guilt or innocence, but focusing on when law enforcement knew about this, when the situation knew about it when the crime was actually prosecuted, because if, if BO can show oh, that law enforcement knew about this, before the statue limitations would have run and must be specifically, we need to know about this. They have to know all the details of this whenever it is now, they just have to know that a crime occurred. That's it. They don't have to no specific they just have to know that the crime occurred, and so the law says. Is that the subjective opinion of the district attorney whether or not there was enough evidence to file charges that doesn't matter it's subjective opinion. That's not enough! The statue limitations runs as soon as law enforcement officers know that someone has committed an act when we know that in the initial days following terrors disappearance and then of course, the weeks and then the month there were lots of tips and there were lots of
general searches of things that happen all over the place, but habit Ethically, let's say that a. Local law enforcement officer got wind of the essence, if not the details, but at least the assets of was alleged in this. This indictment against bow and then conduct some searches based upon that that would be the date. If that's the first time that law enforcement knew about this, it would be obviously would be evidenced if local law enforcement was doing something to investigate it if they knew about it. Prior this actual imitations running and, in this case its four years so prior to to the four years after essentially what they would have is four years from that date. So, let's say law enforcement new about there's some local law enforcement knew about this five years ago. All than they had for years from the date that that law enforcement officers first found out about it to prosecute arise carry this scenario just a little bit further. Now, ok, let's say that a judge or a jury has to say
that the statute of limitations prevents a prosecution of both do because there was at least some general knowledge by at least one law enforcer author of the essence of all this, then one is that due to the trial Ryan. Alexander, do if becomes a witness. It almost gives bow a free card to testify because he would be protected by double jeopardy, and so, if it, this case went to a jury and that jury, or that judge found that the statue limitations was violated and that both dukes hadn't been prosecuted within the four year stature limitations. Then, first of all jeopardy. What attached and what that means jeopardy is where your placed in harm's way of a crime, so we you're about double jeopardy. So that would attach double jeopardy would attach at that point, yeah
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audible, dot, com, slash up or text. You p, two five hundred five hundred again, that's audible, dot com, slash you p, or tax up to five hundred five hundred So, if a jury, has decided The trial, hypothetical trial of both do if a jury, has decided that he can't be prosecuted, in other words, he's essentially acquitted. Can. He then take the stand and testify in the trial against Ryan. That he's the one committed the martyr? You know, I think, that's really in
sting scenario that could possibly play out. It would make me very nervous as his attorney, but thinking through a key imagine any other crime that he can be prosecuted for, because jeopardy would attack for anything related to this murder concealing the martyr, so he went and he testified at the time. Ryan that he was play the one that did it jeopardy would protect him. He wouldn't be able to be prosecuted now the federal government has pretty weak double jeopardy laws which most people don't know, but I can't think of any federal crime. I can't think of how this case could get into federal court, because you ve gotta have something called jurisdiction to get into federal court so. You have to have someone taking a body across state lines or something like that. That's when we See federal court invokes some
from an agent is harmed, or some government agency is involved, and we just don't have this here. This is strictly a state court crime, so it would appear that he could get on the stand at Ryan's trial and say pretty much whatever he wants about this murder and be protected if they at the root of doing a plea and bar. The plea in bar was granted in the judge, says you can't be prosecuted based on statute of limitations in that scenario. He would 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 so what we'd have there is a plea in bar were jeopardy had not attached and in Georgia for jeopardy to attach you ve gotta have a jury sworn so in the case of a jury. While the jury actually has to be sworn after their pet and selected, they take an oath and once they take that owes, there. Actually sworn then jeopardy attaches.
Or in the instance of a bunch trial. If there's no jury, you ve gotta have the first witness sworn so. The first wit who takes their own to tell the truth, that's when jeopardy attaches. If neither of those two things occur. Then, pretty hasn't attached? So if the state does since the charges or the judge dismiss the charges are or grant supply in bar jeopardy wooden attached, because there are. Those two things would have happened. I said in the last up and vanished episode that there's a pie, stability in events then a plea and bar were granted or somehow there was a double jeopardy defence asserted that Ryan wouldn't be able to plead the fifth in the traditional sense, because he wooden be facing any any jeopardy for these crimes that he's been accused of, but now that Georgia that has another limited privilege has to do with things that may bring,
for me upon you talk about that just a little bit, but we ve got a very interesting privilege, it's sort of an old school Georgia privilege that says that you can't be compelled to testify to things that would bring infamy against, family and if, if both did something that his look could arguably say would would bring infamy against his reputation or his family's reputation. He can't be compelled to testify Normally we see that in instances where or folks have she aid or there's some type of molestation or incest or there's some type of inner. Someone was a prosecutor. I you know. I had a case once where someone had been a female dancer stripper. An she'll sorted that privilege, and so we had an issue with that, whether or not she could. I can tell you courts, don't like this privilege, it's very restricted, it would be up to the judge whether or not he had that privilege. But let's say he up there, and he said you know what I'm gonna start. This privilege ominous say I, we're going to testify because it will bring infamy upon my family or the court is
probably gonna, say you know what sorry we're not gonna give you that we're not gonna, protect you and that's because since we are actually talking about law, you and I actually it's only greaser steadily every day, and so what we learned was that this privilege, this limited privileged dealing with infamy, is something that courts limit to things that are really collateral. If the issue is are you and I to Ryan Bird a body and destroying evidence and has Ryan made statements to you. In other words, confess to you about things. That's really collateral to the issue of whether not Ryan is guilty of the murder right right, not at all in you- and I were talking about last week and saying: have you ever had someone use this privilege and 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've only ever had at once, and it was actually in regard to a civil case and
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 infamy upon her family, and that was the only time I never even heard of it or seen it use and as we both know that the court's want evidence. They want. All of our laws and Oliver codes favour the admission of evidence and so accord is gonna, be very reluctant to ever say that some one who knows something. It has first hand. Knowledge of a crime can't testify. Because of this I just want to go especially in the unique scenario this case. We know that BO, even perhaps a violation of the gag were here talking about what he did, he's not been shy about getting information out there. His girlfriend now has been on the pod cast talking about everything that happened. So it's not like it's some giant secret. If there's any
disgrace or infamy that might be brought upon him by this information. Well, it's already out there. The cats the bag- and we say in law, you can't put the toothpaste back in the two right. You can answer that would undercut any privilege that he says he would have to keep this. Disgrace from his family, because they ve already heard at the disgrace, has already happened, and so it's really that privilege is only used for things that aren't that you know in the one example that I could give where that woman didn't want to testify publicly about her past as as a dancer, because her family our kids didn't know, and so that would have brought the disgrace that she was talking about because it it now, but if it had been known than it would have been different ballgame, and so in this case I think, because it so well known he's not gonna, be able use that them the best option he's got if he wants to not before testify is to come up with some sort of fifth amendment privilege, some sort of privilege against his own, testifying against himself. Essentially statute of limitations prevents
him from being prosecuted. That's gonna be a very tall order, so I think there's strategy decisions that he and his also are going to have to make about how they're going to move forward, because it seems to me that some has gotten sideways within a plea, deal or immunity deal that both may have had on the table because we don't have him waving the right to grand jury. The district I presented the case, the grand jury, the added the Senate enhance wherein there. Let me ask you, if I had a witness or a client who is cooperating, witness I would say to the d: a look. We're gonna wave grandeur. You just follow the accusation and is key. Open and then will deal with the resolution of it after my client testify, guess right, that's how I would handle I would as well. I mean I if I'm trying to get something from the government, I'm not gonna make them jump through the hoops of having two indicted
case because we all know they can indicted him so much. So what it is really is it's just extra steps for them at this point to go and from the grand jury. So if I'm a play nice in the sea and box and get a deal, from my client and my client is cooperating in 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 gonna be dictated by our agreement. If we agree to certain charges are agreed, a plea to certain charges, then there's really no We in the grand jury indicting it. I think the fact that they have put in here this tolling is fair, interesting. It tells me that their their fighting that they're not agree because why would the government go to such lengths to protect their indictment they're? Putting in here about the toiling they're? Putting in here, evidence that says they want these charges to stick. They want them to go forward. Just tells me that maybe they're not cooperating. Maybe there's not some type of pleading, play place. Some agree arranged since you brought them,
let's go back in and unless review, some of the evidence that we got in a case. Now, I'm going to read it's, a screenshot of a text message that both set too his old army buddy. Dare ok it the conversation between them there and later provided to pay, ok and so it starts by saying this and in there and is asking says so will you get arrested and then they she go after the trial question mark and both responses no, I won't be arrested or prosecuted at all there, in response to your lucky as far but response that is I'm glad. My grandfather is alive for this. He would fucking kill me therein says dude Your family will disowning question mark my family. Would those response I don't?
oh, they haven't exactly reached out. Probably ok, so we ve got that it has been discussed before on the package but then this is something that new, relatively the pain, is shared with me, so that we can talk about it today, and it's sort of new discussion for the podcast and again this is new in for nation, we haven't a this too much. But this is a conversation that wish between. Bugs and his lawyer, and it was done, text message in this text message was then forwarded, there and who in turn, forded it back to pay. So Let me read this, and this is a quote directly from the messaging between bow and therein, and these are Apparently the words of of the lawyer, representing both This is not something unnecessarily wanted to send by tax. But I am also not where I can talk at the moment, and this did
need to weigh I'll call you a sin is unable to then will 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. Still awaiting the final particulars, but believe that will be either for evidence, tampering or concealment of a death. You will Be arrested at home. Will need to self surrender now that would be tomorrow at the M at Fitzgerald Sheriff's office. Ten, thirty, a m you can write, with me or acted meet you there, I'm trying to get bonds in advance and then they go on to say- and this is apparently the words of his lawyer to bow by text message quote this point and given this development, I don't want you talk, two gb special agent should ill any further that in any
and a further assistance is on hold indefinitely if he calls you just declared to talk to him until the call me I have, the advice that the aim of this, so he should not become attacking you, but just in case This is a very disappointing move on the states part, but we will get through this and if we have to fight it out so be it. J P, the initials the attorney. Now, given that information, seems to me that one the deal was May I have ever been with BO at some point to some degree is, is Goin sideways. What's your take, I completely agree. I mean it sounds like they had some agreement. Whether be in writing or what the agreement was, and that didn't work out, is as the attorney if they had promised that your clients not gonna, get arrested for clients and then all of a sudden, your client arrested. So
throws any deal off because that's a big difference being right, the is not being arrested so itself like the deal, was undermined in weather It's still in place. It sounds like it definitely was altered or changed at some some level, the last part of the lawyers taxpayers who serve If we have to fight this out, so be it. What's your take on that that they may not have a deal. I mean that tells me that they dont have something, because if we have to fight this out, that means there's no deal mean he's thinking that I'm trying to get a deal in a what he's been doing likely is, is putting his client up, letting them interviewers client giving eight months but saying that the statements that he's making can't be used against his client if they can't reach but he's doing all this in hopes of reaching a deal, and so if they can't reach a deal than the cards, cards change and they actually have to go to trial, and he confided one. Happens to attorney client privilege when you share
your conversations with your lawyer with third parties. It gets rid of the privilege so in this instance. These conversations that he's having are no longer privileged, the conversations that he is sharing with. Other parties normally would be protected, but because he shares those conversations, the privileges gone and so there's no privilege in regards to these conversations there are some conversations that I haven't person there are, conversations I have over the phone. There are some that I send an email follow up to. This like one of the conversations that you would want to have over the phone you know we're lawyer, so we like to document thing so a lot of times when I would do is have a conversation and then, if there something that I need documented fall up with a letter put the letter in the file, but I hate texting with clay Hence I mean it's it's one of those things that has changed recently. The practice of law. I get text all the time from clients I dont, like I tried to explain to them. I can't really memorialize this thing's comics
ass wrong. Sometimes you in a hurry and you send a quick text. I mean, I think, texting in in practice the law should be limited to what courtroom than I am, and what time? If even that will have got people, I paid for those I completely agree. I completely agree in light of this information this in these. These text messages that bows sharing with his buddy therein. It seems that our parents and I think, we're an agreement that does he's gone wrong with any cleave yielded the bow may or may not have had the question now becomes, you're both lawyer you proceed to defend bow, I mean asked you lawyer, you ve got to protect him and say you ve gotta go in and file whatever is necessary. If it's a plea in bar, if it's a speedy trial demand where you're you know saying that we want to go to trial sooner rather than later, you ve got to do that. You to be on the offensive almost because can't sit around and wait for some type of pleaded to come through because it so
I get might not, and you ve already been mean. According to these texts are even double cross. You know where he thought your client wasn't enemy arrested and then boom they get arrested. So at that point, I would go on the offensive. I wouldn't sitter and wait for what the governments gonna offer my client Why would it be the bow, my go one day from believing that he's not even gonna, be arrested to getting a message by tax from his lawyer saying: hey, I'm sorry, to tell you this, but you're gonna have to be arrested. Turn yourself into our. How would that happened? I think one or two things happened. I think either bo aggravated there. Worthies whatever he did. We ran his mouth. He did some Phoenician had done him in this is a small town that there and he did something to aggravate them or the second option is that he was untruthful and they somehow verified that he told them some thing that ended up not being truthful, and so they went and in a less just use. For example, he said: oh, we burn the body you know in this. Location and then they actually found out. You know what it wasn't bond actually work.
Calls involved or something like that that they could verify all that point. They're going to become sky to call and they're gonna say you know what he's lied whatever deal we have, if the lies, takes the deal off the table. A lot in this pod cast about people who, to the authorities minimizing their role. In order to make themselves look not quite as bad. For example, what are you also the you see that happening in your practice. It happens all the time I think defendants do that all the time and I think a lot of lawyers actually advocate for that and try and get there I answer to minimize their involvement when they speak to the police. I mean For me, over the years, my philosophy is changed on client speaking to the police at this stage. In my I guess I'm just pretty much against it period. Dot end of story, because then good ever comes out of it. I've learned what, my client says is is manipulated. Is changed, is armed? Take out of context, and for me the bat
this thing is, I'm not gonna, let my top police officers as all the time, I'm not gonna. Let you interrogate my client when you know more than I do, because I can't prepare my client for that and so I tell the officers of you want to talk to me. You want to watch my client fine. Show me your cards show me your car let me see your investigation when we see the reports, let me see what's been alleged than I can discuss it with my client and then we give you a statement, but I'm giving go in there when you know everything and we know nothing- for an innocent client, for example, I don't know anything. I want to know the facts. Are there If someone did it, they're gonna be able to tell you that they did it and then you may go in there with with more information. But I just its unwise to go in and give a police. In our view, when you dont know all the facts I have not yet had an office or take me up on that Wilma calls The point is that they can lie to the person that their questioning about, what cards they have, but
not the other way around if they feel out of the police, you can get arrested for right. If I mean, if I may, and participating in the lawyer can get arrested for that you now so that so it's definitely not an even playing field, and so I regularly tell officers you know unless you tell me what's going on and what it is you want to talk to my client about we're not going to come in. You ve got to tell me what's going on you gotta, give me give me information and there never willing to do that, and so most of the time I advise my clients against talking to the police. Are these people back to this particular language in this text. Message that we are told was between both lawyer in him where he says at this point and given this development, meaning the arrest, I dont know she talking two gb. Special agent should they'll any further. There in 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 so that implies, if it's true, that
just gb I was just given. Free access took to bow to talk to provide assistance without the lawyer even being present. I know- and that's that's very surprising to me- there is way that, once I am taking a case, on one side protect that client. I am the wall. I am the the protein, To really I mean I'm the the cover between the government and my client, and so there is no way that the governments can access my client without me being present. It is not going to happen in what's crazy about that. Is that the lawyer and the client would have actually had to specifically wave the clients right to be represented. Because what happens is you know you, you lawyer up you ve gotten and you ve got a lawyer. So what you ve got a lawyer. The government can't go in question you. They can't talk to you without going through your Laurie so there would have to be some act either by the lawyer or the client that says, I'm giving up what I've already taken. I'm give up my Miranda right, I'm giving up my fifth amendment write to her
a lawyer present when I'm questioned I'm giving that up and I'm voluntarily giving you statements without. My lawyer mean that to me that never gonna happen. I'm never going to let that happen with my client. I'm always going to be their cause. That's my job Do you think that the either one of these indictments is headed towards a trial, I don't think so because what it sounds like. Is that there's a lot of things going on that? Nobody wants anybody to know about, and so whatever it is? It seems like they ve got some game plan. So I would hesitate to say that it was headed towards a trial, but if there making any offer us, particularly to Ryan. What is have to lose in all he can get. Is a life sentence, a life without pearl sentence? Well, that's what you would get if you took a plea anyway,
what's the benefit, unless they're willing to reduce this, unless are willing to dismiss the Maoist martyr Charge and give him something last, why would he ever enter a guilty? Please, I've always least up until now had very soon opinion about that, and I felt that that Ryan's case was never going to trial. I have always felt that I was going to be a cooperating witness. I'm fine, Lee certain now there bow is at least a less cooperative witness than he was in the beginning, you may not be a cooperating witness at all and it appears that bo has every reason now to try to fight these charges is Bessie hand. Maybe it's a statute of limitations. Defence. I don't know. With regard to Ryan, I still all lean towards their not being a trial, but
I'm his lawyer, and I realise that there is a statute of limitations issue with regard to both charges and bow. Theoretically, would the star witness against my client and if there were information that my client has given me. I don't know, I'm just guessing him, not accusing anybody anything. But hypothetically, let's say that Ryan has no, I wasn't just me it was both to then might be given some incentive to to really trotted point. The fact the other guy and so on I'd, be we see both case going south then I'm representing Ryan and they're? Not really wanting to make me that greater please deal am. I they will be generated This will not for trial, because, like you say, what's the worst, that can happens, it's a life sentence. I could be life without parole, verses life with role but you're still,
thirty something years right right, I mean ass. A thing a life sentence you're only eligible for parole after thirty years and then at something like every seven years that you can be reconsidered. So nobody gets pearl the first time on a life on a life murder case where there is actually a loss of life. So the really what be what thirty seven years and that even a longshot, you know: so the only real incentive to Ryan to plead would be to reduce it to something like voluntary manslaughter which MAX's out at twenty years and your eligible for parole after think something like twelve years right so If you were to really cut the bottom out of these charges against Ryan, they may very well give him some incentives interplay. It would, I think, that's the only way that Ryan would enter a play as if there's some reduction in the actual charges, and I can tell you if, if bow was my client and he told me that he had done ass, that he had not done what is charged with, but done the actual murder if he
Was the one that actually had murdered her eye have him in there tomorrow taking a guilty play on this deal or no deal. I would him in there and he would be thrown himself at the mercy of the court just to get jeopardy to attach just so that he wouldn't be prosecutor ultimately for the martyr, because I fully think the most you can get from the indictment he has now is ten years ten years on the crimes that he's. Charged with he would get out on parole, and so I would want to protect him from being if he did say that he had done the actual the actual murder, and if there was evidence that that would have come out that would led to him being charged, then I think best me for him legally, is to get in there and take a plate, he's a convicted, fell he was convicted by the. U S: government! For the afternoon it charges a number of years ago and there substantial amount of still owed the fact that he does have one strike against him. What
that do in if you're the judge. How do you consider that, when determining sentence, if bows ultimately convicted by player by trout, so it can affect both case a couple different ways? It can affect the way that he is actually sentenced. The state can file what known as a recidivist notice and in Georgia we ve got. We ve got a couple Firstly, recidivist acts we ve got one that is one time you're out essentially Sophia convicted Phelan. They can file some thing that says you're can did Phelan and they want this enhanced punishment. What that would mean is that he has to get the maximum sentence, so he would have to get ten years. He doesn't have to serve the ten years, but his sense would have to be ten years to serve whatever in the judgment. But it had to be that ten year sentence, if you have three crimes you, ve got three strikes you're out there not only do you have to get the max, but you're not eligible for parole on whatever sentence you do receive the other. That his record could affect. Him is with parole in
what are? We rely very, very heavily on parole to do what calls equalize sentences and I'm actually, I work closely with the parole board on develop, things and and discussing different parole scenarios and In this instance, his prior felony would work against him with the parole board. The Georgia Parole Board would consider that, and that would be something that would make him more likely to serve more time before he was released on parole and parole is essentially just early release. People after the don't understand why makes a difference that both was convicted by the federal authorities. After this. Crime against terror was alleged to have been committed, and I think it's important, Point out that you gotta look this thing when it happened in women, happen. Bow was not a connected fell but he is now and if it two fires that can be
used against him to undermine his credibility, the other words the defence attorney for Ryan could bring that up and say you know european. Did Phelan and intellectually have copies of the documents and and present those to the jury and waved them around or inclosing argument say you know, you shouldn't believe this person, because as you will hear. The judge instruct you you're in title a completely disregards the testimony that kind of a convicted Phelan out completely representing Ryan. I would trash boating I would not go. I would parade that indictment and that conviction and federal court all over, and I would talk about the facts that case and I would talk about the punishment and he could receive and what he's gotten what he pledged to. I would also bring up the fact that he's basing time serious time in this new indictment, so he's got a huge motivation to help the government to testify. For the government only really comes into play. If both takes a stand against Ryan.
Few takes a sin against Ryan than Ryan's lawyer is going to bring all of that up, and all of that becomes relevant to his was called credibility. Both credibility of Chester so the way it all boils down. For me, I think right now is there. If I'm process, hearing this case against Ryan And- and I can do it- without putting both Stan. That's what I'm gonna do it If I've got a statement or something in the nature of a confession: Earth declaration against interests that Ryan has given voluntarily in its admissible in court, and I've got some physical evidence? Maybe some typos remains or something to corroborate that in a vacuum, It really really simple and keep both out of it. There might be how prosecute Ryan Luke's you don't. I Bell could really just be sort of the icing on the cake think what they're doing is using bow in his statements to get the evidence that they need to get the search warrant to know where to go. Look to know
to test for and so they're using his information. For that, then bring that evidence actually to court and then bow could testify could not testify, and I think someone would put him up, but the prosecution would probably even say he's dead extra. Do you know he's not our case he's not our guilt b reasonable doubt he's just extra to explain how we got this information, but the infant and that their obtaining from him is what's important, if Ryan is given statements that in criminal, self, maybe it's a full confession and is corroborated, even so slightly candidate, the attorney clean this trial up and make it really slim and make it streamlined, and and through this without muddying it. By putting both dukes and the witness stand,
if they have some other evidence, you can't convict someone just with a confession to you. Ve got to have something to corroborate the confession. So if Ryan has confessed, they ve gotta have something to corroborate that confession, and so happens. Often in these cases is, though, you some really weak evidence to do their corroboration, so they may have Ryan's actual confession and then the corroboration that they need would be both dukes testimony and so and though it it offers very little value. It gives to just enough value to get over that legal hurl of having to have corroboration for the confession. If there's dna evidence in a late tax glove, they can linked to Ryan Dukes in that late takes gloves, terrors house that car. Razor definite Cinemas have something else and if they have something was found in a teacup orchard and the nature of some type of remains that contain identifiable dna that corroborates it right
It's definitely corroborate statement, whatever confession it as he made he found the day I can streamline the state of Georgia. Is Ryan Alexander Duke, and I can keep BO out of it the waters, much less money and then PA and been he'll county can do as he wishes in prosecuting BO dukes included. Trying to throw him under the jail for many it is right. Definitely in there may not be incentive for them to offer boa deal from tenderfoot tv and industrious in Atlanta, thanks Listening to us today Episode was mixed mastered by resonate recordings. If you want to improve the quality of your pod, or even just podcast of your own, go to resonate record dot com to get your very first episode produced for free, be short they tune for episode, twenty two July. Third enough,
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Transcript generated on 2020-01-12.