Up and Vanished - Case Evidence 06.26.17

Episode Date: June 27, 2017

Take a deeper look at the evidence as experts discuss new developments in the case.  To learn more about listener data and our privacy practices visit: https://www.audacyinc.com/privacy-policy Learn more about your ad choices. Visit https://podcastchoices.com/adchoices

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play responsibly. If you have any questions or concerns about your gambling or someone else close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. I'm Phillip Holloway in for Payne Lindsay. On a previous case evidence, you heard from defense attorney Ashley Merchant, who joins me here today because we are going to compare and contrast the indictments against both Ryan Duke and Bo Dukes. And we're going to talk about certain things like the statute of limitations, and we're going to talk about how certain privileges that may or may not apply with respect to Bo in the event he's called to testify as a witness if there's a trial against Ryan Duke. Now, in the last case evidence where you heard from Ashley, she gave the full-throated defense or how she might do it with regard to Ryan's case.

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or sent to you as a check. Earn cash back at stores like Sephora, Old Navy, and Expedia. It's the smartest way to shop, plain and simple. Start your shopping at Rakuten.ca or get the Rakuten app. That's R-A-K-U-T-E-N dot C-A. So Ashley, can you start out just telling us a little bit about this indictment with Beau and how it's charged and what he might be facing if he's convicted? Yeah, so this indictment that Beau's got 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, and that one he can get up to 10 years. So it's a one to 10 year range for that. The second count is tampering with evidence, and again, he could get up to 10 years on that. It's a 1 to 10 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. And that's 1 to 5. So in total, if all of those counts were proved, he could face 25 years in prison. Talk to us a little bit about the legal concept known as merger of offenses, which basically is if the cases or if the counts blend together, how does that work? Yeah, so 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. The state can charge you three or four different ways, but you can't be punished three or four different times for the same conduct. The state can charge you three or four different ways, but you can't be punished three or four different times for the same conduct. So in this case, we've got one thing

that the state thinks that Bo Dukes did. They think that he helped Ryan hide Tara's body. They think that he, and how they've charged it, is that he knowingly destroyed the body by burning it, that he helped hinder the apprehension of Ryan by burning Tara's body, and that he helped conceal the death by burning her body. So all three of those are charged on the same conduct, the one act of burning her body. So they can charge it three different ways because there's three different crimes that actually fit that act.

But what they can't do is they can't get three separate aggregate punishments. So what that means is that they can't get 10 plus 10 plus 5, which would total 25, 25 years. So if I was defending Beau, I would be arguing that these all merge together. And the most that Beau is facing is actually 10 years in prison, because count three, which carries five years, would merge into count two, and then count two would merge into count one. And so that leaves us with a total of 10 years in prison under merger. So that's what I would be explaining to Bo Dukes is his real possibility of what he could get as far as time. And what would be the state's counter argument?

Because the elements of each offense are different. It is the same transaction. It's the same conduct. But each actual crime that he's been charged with has different elements to it. So what would the state's argument be in response to your merger argument? Yeah, so 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. So in count one, they would be arguing that the goal was to hinder the discovery of her body. In count two, they would say the goal is to obstruct the prosecution of Ryan Dukes. Count three, they would say that the goal was to actually make him not be able to be found, make him not be able to be hindered, apprehended,

or punished, Ryan Dukes. So all of them are essentially helping Ryan, but in a different way. Now, let's look at count two that deals with tampering of evidence. When the arrest first happened, the arrest warrants alleged simply that he tampered with evidence. Now, the indictment brings in and references another specific code section out of Georgia's Criminal Procedure Code, which is Title 17, and they reference 1710-6.1. What is that? So in Count 2, there's essentially three different code sections that you could be charged with tampering with evidence. It could be a misdemeanor. different code sections that you could be charged with tampering with evidence. It could be a misdemeanor if the crime that you're tampering with the evidence of is a misdemeanor. It can be a felony punishable by one to three years if the crime that you're alleged to have tampered with

the evidence of is just a general felony. But if it's a serious violent felony such as murder, there's what we would call a sentence enhancement. You can get up to 10 years. And so what that means is that when they say tampering with evidence, there's got to be a crime that you're tampering with the evidence of that crime. And so when the crime is murder, when it's a serious violent felony under Georgia law, you can get more time. You can get up to 10 years in prison. So it's almost like a degree when you hear about degrees of murder, first degree, second degree. You can get different punishments for those degrees. That's sort of what this is. You've got a misdemeanor degree, which you can get 12 months in jail.

You've got a general felony degree where you can get three years in prison. And then you've got what we've got charged here, which is the highest. It's tampering with evidence of a serious violent felony. And so that's the highest degree. And you can get up to 10 years in prison on that. violent felony. And so that's the highest degree, and you can get up to 10 years in prison on that. So basically, this is going to boil down to what the judge decides if there is a conviction on any or all of these counts. It's going to depend on what the judge decides on whether or not there's merger. Because if I'm understanding you, then, and I agree with you,

by the way, the minimum if the counts merge would be 10 years in prison. And the maximum, if they don't merge, could be 25. Yes, it is up to the judge. And that's one of the few areas in Georgia law that you can actually appeal on. So let's say that Beau even took a plea and they disagreed on the merger. He actually can still appeal on that. And so he can actually get an appellate court to decide whether or not these counts merge or not. And I can tell you, Georgia is pretty liberal in merger. They tend to find, the law tends to find that things merge unless there's something in the statute that specifically says they don't merge. And so we've got certain code sections in Georgia that the legislature has said, you know what, these aren't going to merge. Like gang statute,

for example. The gang statute, anything related to gangs doesn't merge. But this type of crime, there's nothing that says it doesn't merge. And so the law is most likely going to say that it does. And so I think most folks would agree that the most he's facing is 10 years. Okay, so this indictment against, well, both of them, quite frankly, but let's talk about Bo. It alleges that the statute of limitations was told. Now, I explained in the most recent episode of Up and Vanish that the statute of limitations for these offenses that Bo is facing ordinarily would be four years. There are certain types of offenses that have longer statutes of limitation, but that wouldn't apply. So they've alleged that the statute of limitations was told,

T-O-L-L-E-D, told, in other words, the clock has stopped ticking. And in the indictment, it says, for said offense in that the crime was unknown until February of 2017. Now, when I first read that language, it was sort of surprising to me that they did not say what date specifically in February it became known. What do you say about that? I think that the government, the state, is always trying to be as vague as humanly possible in these indictments. Absolutely. I think that what they're trying to do, because whatever they say in here, they've got to prove. So if they said February 5th, they've got to prove February 5th.

So they're going to be as vague as possible and then flip it back to the defense to say, you know what, you're too vague. You weren't specific enough. And if the defense is not on their game and is not challenging it, then there's really no harm. And the state gets away with being exceptionally vague. I think it's interesting that they said it wasn't known until February because this just opens up so many issues for us as defendants and as defense counsel for statute of limitations. I mean, I think that this is ripe for a statute of limitations challenge because just because the government says, you know what, the statute's told,

that doesn't mean the statute necessarily is told just because they say in an indictment that it was told. Ultimately, it's a legal question, right? It's completely a legal question. It's a question for a judge or a jury. They can ask, the defense can actually ask a judge ahead of time to do something called a plea in bar or a demur. But a demur is really, it's a Latin term for you want to quiet the indictment.

Demur, you're quieting the indictment, which means you're sort of making it go away. It's not speaking anymore. And so that's one way that you can challenge it. You can only file that if the statute of limitations issue is known on the face of this document. So to do a demure, you can't go beyond these three pages. You can't take extra evidence or anything like that. So I don't necessarily think a demure is the right avenue here.

I would go with the next option, which is what's called a plea and bar. That's exactly what I think, too, because the plea and bar, if it's granted, is basically a judge saying, you know, you can't go forward with these charges. Exactly. It is the judge saying that we are barring prosecution. We are stopping prosecution. I mean, it's the closest thing to a dismissal we have in criminal law. And it's better than a general dismissal because it stops them from being able to bring the charges back later on.

Right. Because if a demurrer is granted, they can always go back and fix the indictment in whatever way the judge says is defective, right? Exactly. So now there is another way. So let's talk about that third way, which I think is the most interesting way. I do, too. Because can't Bo just decide to go ahead and file what's called a statutory demand for speedy trial and force them to bring him to trial, perhaps even before they plan on trying Ryan, and then assert at trial a statute of limitations defense in front of a jury. Oh, yeah, definitely. I mean, and so there's two things to talk about there. The first is the statute of limitations defense. At a jury trial, the state has to prove that they have brought this

crime, this prosecution within the statute of limitations. So that is something that 12 jurors, 12 citizens would have to decide, not a judge. So when you put it in the hands of citizens, that opens up a whole new ballgame and a whole new can of worms for a defendant. It's a lot easier to convince jurors than a judge necessarily that a crime occurred within a certain amount of time. And so the prosecution would have to prove that they didn't know about this until February 2017. Well, now let me ask you about that. Who is it then that would have to know? Because aren't all peace officers, all law enforcement officers, agents of the state for purposes of statute of limitations? So if any police officer or any law enforcement officer

has any knowledge about this, isn't that knowledge imputed to the state for purposes of the statute of limitations? It is definitely any law enforcement officer. And so what you'd have is you'd have a very interesting trial, not really focusing on guilt or innocence, but focusing on when law enforcement knew about this, when the prosecution knew about it, when the crime was actually prosecuted. Because if Bo can show that law enforcement knew about this before the statute of limitations would have run. And let's be specific. When you talk about know about this, do they have to know all the details of this, whatever it is? No, they just have to know that a crime occurred. That's it. They don't have to know specifics. They just have to know that the crime occurred. And so what the law says

is that the subjective opinion of the district attorney as to whether or not there was enough evidence to file charges, that doesn't matter. It's not a subjective opinion. That's not enough. The statute of limitations runs as soon as law enforcement officers know that someone has committed an act. Well, we know that in the initial days following Tara's disappearance, and then of course the weeks and then the months, there were lots of tips and there were lots of general searches of things that happened all over the place. But hypothetically, let's say that a local law enforcement officer got wind of the essence, if not the details, but at least the essence of what's alleged in this indictment against Bo, and then conducted some searches based upon that? That would be the date. If that's the first time that law enforcement knew about this,

and it would be obviously would be evidenced if local law enforcement was doing something to investigate it, if they knew about it prior to the statute of limitations running. And in this case, it's four years. So prior to the four years after, essentially what they would have is four years from that date. So let's say law enforcement knew about this, some local law enforcement knew about this five years ago. Well, then they had four years from the date that that law enforcement officer first found out about it to prosecute. All right. So let's carry this scenario just a little bit further now. okay? Let's say that a judge or a jury has decided that the statute of limitation prevents a prosecution of Bo Dukes because there was at least some general knowledge

by at least one law enforcement officer of the essence of all this. Then what does that do to the trial of Ryan Alexander Duke if Bo becomes a witness? It almost gives Bo a free card to testify because he would be protected by double jeopardy. And so if this case went to a jury and that jury or that judge found that the statute of limitations was violated and that Bo Dukes hadn't been prosecuted within the four-year statute of limitations, then first of all, jeopardy would attach. And what that means, jeopardy is where you're placed in harm's way of a crime. So we all hear about double jeopardy. So that would attach, double jeopardy would attach at that point. Get ready for Las Vegas-style action at BetMGM, the king of online casinos. Enjoy casino games at your fingertips with the same Vegas-strip excitement MGM is famous for.

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O-N only. Please play responsibly. If you have any questions or concerns about your gambling or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to any operating agreement with iGaming Ontario. So if a jury has decided in a trial, hypothetical trial of Bo Dukes, 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 that committed the murder? You know, I think that's a really interesting scenario that could possibly play out. It would make me very nervous as his attorney, but thinking through, I can't imagine any other crime that he could be prosecuted for because Jeopardy would attach for anything related to this murder, concealing the murder. So if he went and he testified at the trial of Ryan that he was actually the one that did it,

Jeopardy would protect him. He wouldn't be able to be prosecuted. Now, the federal government has 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 got to have something called jurisdiction to get into federal court. And so you'd have to have someone taking a body across state lines or something like that. That's when we see federal court invoked. Some government 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 went the route of doing a plea and bar and the plea and bar was granted and the judge says you can't be prosecuted based on statute of limitations, in that scenario, he would not be able to take the stand and say, I'm the one that killed her, because there's no statute of limitations for murder, correct? Right, exactly. So what we'd have there is a plea and bar where Jeopardy had not attached. And in Georgia, for Jeopardy to attach, you've got to have a jury sworn. So in a case of a jury trial, the jury actually has to be sworn.

After they're picked and selected, they take an oath. And once they take that oath and they're actually sworn, then Jeopardy attaches. Or in the instance of a bench trial, if there's no jury, you've got to have the first witness sworn. So the first witness who takes their oath to tell the truth, that's when Jeopardy attaches. If neither of those two things occur, then Jeopardy hasn't attached. So if the state dismisses the charges or the judge dismisses the charges or grants a plea in bar, Jeopardy wouldn't have attached because neither of those two things would have happened. I said in the last Up and Vanished episode that there's a possibility in the event that a plea in bar were granted or somehow there was a double Jeopardy defense

asserted that Ryan wouldn't be able to plead the fifth in the traditional sense because he wouldn't be facing any jeopardy for these crimes that he's been accused of. But now Georgia has another limited privilege that has to do with things that may bring infamy upon you. Talk about that just a little bit. 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 your family. And so if Beau did something that his lawyer could arguably say would bring infamy against his reputation or his family's reputation, he can't be compelled to

testify. Now, normally we see that in instances where folks have cheated or there's some type of molestation or incest or there's some type of, you know, someone was a prostitute or, you know, I had a case once where someone had been a female dancer, a stripper, and she asserted 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, and that would be up to the judge whether or not he had that privilege. But let's say he got up there and he said, you know what, I'm going to assert this privilege. I'm going to say I am not going to testify because it will bring infamy upon my family. Well, the court is probably going to say, you know what, sorry, we're not going to give you that. We're not going to protect you. And that's because since we're actually talking about law,

you and I actually did some legal research, didn't we? We did, yes. Yeah. And so what we learned was that this privilege, this limited privilege dealing with infamy is something that courts limit to things that are really collateral. If the issue is, are you an eyewitness to Ryan burning a body and destroying evidence? And has Ryan made statements to you, in other words, confessed to you about things? That's not really collateral to the issue of whether or not Ryan is guilty of the murder, right? Right. Not at all. And you and I were talking about it 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 it. Yeah. I've only ever had it once. And it was actually in regards to a civil case. And it was that one instance where the lady had done some work as a female dancer and was asserting that she didn't want to testify about that and about some other affairs because it would bring infamy upon her family. And that was the only time I'd ever even heard of it or seen it used. And as we both know that the courts want evidence. They want all of our laws and all of our codes favor the admission of evidence. And so a court is going to be very reluctant to ever say that someone who knows something and has firsthand knowledge of a crime can't testify because of this. I just don't

think it would happen. Well, especially in the unique scenario of this case, we know that Bo, even perhaps in violation of the gag order, he's been talking about what he did. And he's not been shy about getting information out there. His girlfriend now has been on the podcast talking about everything that happened. So it's not like 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 cat's out of the bag. And we say in the law, you can't put the toothpaste back in the tube.

Right. You can't. And so that would undercut any privilege that he says he would have to keep this disgrace from his family because they've already heard it. The disgrace has already happened. And so it's really that privilege is only used for things that aren't known. That, you know, in the one example that I could give where that woman didn't want to testify publicly about her past as a dancer because her family didn't know and her kids didn't know. And so that would have brought the disgrace that she was talking about because it wasn't known. But if it had been known, then it would have been a whole different ballgame. And so in this case, I think because it's so well known, he's not going to be able to use that. The best option he's got if he wants to not be forced to testify is to come up with some sort of Fifth Amendment privilege,

some sort of privilege against his own testifying against himself, essentially. And if the statute of limitations prevents him from being prosecuted, that's going to be a very tall order. So I think there's some strategy decisions that he and his counsel are going to have to make about how they're going to move forward, because it seems to me that something has gotten sideways with any plea deal or immunity deal that Bo may have had on the table, because we don't have him waiving the right to grand jury. The district attorney presented the case to the grand jury. They added the sentence enhancer in there. Let me ask you this. If I had a witness or a client who was a cooperating witness, I would say to the DA, look, we're going to waive grand jury. You just file the accusation and just keep it open, and then we'll deal with the resolution of it after my client testifies against Ryan. That's how I would handle it.

I would as well. my client testifies against Ryan. That's how I would handle it. I would as well. I mean, if I'm trying to get something from the government, I'm not going to make them jump through the hoops of having to indict a case because we all know they can indict a ham sandwich. So what it is really is it's just extra steps

for them at this point to go in front of the grand jury. So if I'm trying to play nice in the sandbox and get a deal for my client and my client is cooperating and the government's cooperating, there's really no reason for us to go and make a grand jury indict the case because the charges are going to be dictated by our agreement. If we agree to certain charges or agree to plead to certain charges, then there's really no point

in the grand jury indicting it. I think the fact that they've put in here about this tolling is very interesting. It tells me that they're fighting, that they're not agreeing, because why would the government go to such lengths to protect their indictment? They're putting in here about the tolling. They're putting in here evidence that says they want these charges to stick. They want them to go forward. And so that just tells me that maybe they're not cooperating. Maybe there's not some type of plea deal in place or some agreement arranged. Since you brought that up, let's go back then and let's review some of the evidence that we've got in the case. Now, I'm going to read, it's a screenshot of a

text message that Bo sent to his old army buddy, Darren, okay? It's a conversation between them that Darren later provided to Payne, okay? And so it starts by saying this, and Darren is asking, it says, so will you get arrested, and then they let you go after the trial, question mark? And Bo's response is, no, I won't be arrested or prosecuted at all. Darren responds, you're lucky as fuck. Bo's response to that is, I'm glad my grandfather isn't alive for this. He would fucking kill me. Darren says, dude, you think your family will disown you? My family would. Bo's response, I don't know. They haven't exactly reached out. Probably. Okay, so we've got that, and that's been discussed before on the podcast, but then this is something that's new relatively that Payne has shared with me so that we could talk about it today, and it's

sort of a new discussion for the podcast. And again, this is new information. We haven't delved into this too much, but this is a conversation that was between Bo Dukes and his lawyer, and it was done by text message. And this text message was then forwarded to Darren, who in turn forwarded it back to Payne. So let me read this. And this is a quote directly from

the text messaging between Bo and Darren. And these are apparently the words of the lawyer representing Bo. This is not something I necessarily wanted to send by text, but I am also not where I can talk at the moment, and this didn't need to wait. I'll call you as soon as I'm able to. Ben Hill County has decided, due to political pressure, to save face, or any other number of bullshit reasons, to issue an arrest warrant for you. This is over my objection. I am still awaiting the final particulars, but believe it will be either for evidence tampering or concealment of a death. You will not be arrested at home, but will need to self-surrender.

As of now, that would be tomorrow a.m. at the Fitzgerald Sheriff's Office, 1030 a.m. You can ride with me or I can meet you there. I'm trying to get bonds set in advance. you there. I'm trying to get bonds set in advance. And then they go on to say, and this is apparently the words of his lawyer to Bo by text message, quote, at this point and given this development, I don't want you talking to GBI Special Agent Shadel any further. That and any kind of further assistance is on hold indefinitely. If he calls you, just decline to talk to him and tell him to call me. I have already advised the DA of this, so he should not be contacting you, but just in case. This is a very disappointing move on the state's part, but we will get through this. And if we have to fight it out, so be it.

JPF, the initials of the attorney. Now, given that information, it seems to me that whatever the deal was or may have ever been with Bo, at least at some point or to some degree is going sideways. What's your take? I completely agree. I mean, it sounds like they had some agreement, whether or not be in writing or what the agreement was. And that didn't work out because as the attorney, if they had promised that your client's not going to get arrested, if your client helps, and then all of a sudden your client gets arrested, sort of throws any deal off because that's a big difference being arrested versus not being arrested so it sounds like the deal was undermined and whether or not it's still in place it sounds like it definitely was altered or changed

at some some level. Chanty was born to take me on a trip to the place he's from. From the producer of Megan Five Nights at Freddy's and the Black Phone. Alice! Alice! Alice! Get out! Now. Many kids have imaginary friends. Ready or not. Just because you stop believing in them doesn't mean they're gone. Here he comes. And they're angry you left.

Imaginary. Now playing only in theaters. Imaginary, now playing only in theaters. The last part of that lawyer's text message says, 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 don't have something, because if we have to fight this out, that means there's no deal.

I mean, he's thinking that I'm trying to get a deal. You know, what he's been doing likely is putting his client up, letting them interview his client, giving statements, but saying that the statements that he's making can't be used against his client if they can't reach a deal. But he's doing all this in hopes of reaching a deal. And so if they can't reach a deal, then the cards, you know, the cards change and they actually have to go to trial and he can fight it. What 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. So conversations that he is sharing with other parties normally would be protected. But because he shares those conversations, the privilege is gone.

And so there's no privilege in regards to these conversations. There are some conversations that I have in person. There are some conversations I have over the phone. There are some that I send an email follow-up to. This seems like one of the conversations that you would want to have over the phone. And then, you know, we're lawyers, so we like to document things. So a lot of times what I would do is have a conversation. And then if there's something that I need documented, follow up with a letter, put the letter in the file. But I hate texting with clients. I mean, it's one of those things

that has changed recently in the practice of law. I get texts all the time from clients. I don't like it. I try and explain to them, I can't really memorialize this. Things come across wrong. Sometimes you're in a hurry and you send a quick text. I mean, I think texting in the practice of law should be limited to which courtroom am I in and what time, if even that. Well, I've got people that I pay to answer those questions. I completely agree. I completely agree. In light of this information that's in these text messages that Bo is sharing with his buddy Darren, it seems now apparent, and I think we're in agreement, that something's gone wrong with any plea deal that Bo may or may not have had. And the question now becomes, if you're Bo's lawyer, how do you proceed to defend Bo? I mean, as his lawyer, you've got to protect

him. And so you've got to go in and file whatever's 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've got to be on the offensive almost because you can't sit around and wait for some type of plea deal to come through because it sounds like it might not. And you've already been, I mean, according to these texts, already been double-crossed, you know, where you thought your client wasn't going to be arrested and then boom, they get arrested. So at that point, I would go on the offensive. I wouldn't sit around and wait for what the government's going to offer my client. So why would it be that Beau might go one day

from believing that he's not even going to be arrested to getting a message by text from his lawyer saying, hey, I'm sorry to tell you this, but you're going to have to be arrested and turn yourself in tomorrow? How would that happen? I think one of two things happened. I think either Bo aggravated the authorities. Whatever he did, he ran his mouth. He did something he shouldn't have done. I mean, this is a small town that they're in. He did something to aggravate them. Or the second option is that he was

untruthful and they somehow verified that. He told them something that ended up not being truthful. And so they went and, you know, let's just use for an example. He said, oh, we burned the body, you know, in this location. And then they actually found out, you know what, it wasn't burned. Actually, there were chemicals involved or something like that, that they could verify. Well, at that point, they're going to become skeptical and they're going to out, you know what, it wasn't burned. Actually, there were chemicals involved or something like that that they could verify. Well, at that point, they're going to become skeptical, and they're going to say, you know what, he's lied. Whatever deal we have, if the defendant lies, takes the deal off the table. I've talked a lot in this podcast about people who talk to the authorities minimizing their role in order to make themselves look not quite as bad, for example.

What are your thoughts on that? Do 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 their clients to minimize their involvement when they speak to the police. I mean, for me, over the years, my philosophy has changed on clients speak to the police. I mean, for me, over the years, my philosophy has changed on clients speaking to the police. At this stage in my practice, I'm just pretty much against it, period, dot, end of story, because nothing good ever comes out of it, I've learned.

Whatever my client says is manipulated, is changed, is taken out of context. And for me, the biggest thing is I'm not going to let, and I tell police officers this all the time, I'm not going to 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, if you want to talk to me, you want to talk to my client, fine, show me your cards. Show me your cards. Let me see your investigation. Let me see the reports. Let me see what's been alleged. Then I can discuss it with my client, and then we can give you a statement. But I'm not going to go in there when you know everything and we know nothing. Because for an innocent client, for example, you're not going to know anything. They're not going to know the facts of the case. If someone did it, they're going to be able to tell you that

they did it, and then you might go in there with more information. But I think it's unwise to go in and give a police interview when you don't know all the facts. And I've not yet had an officer take me up on that. Well, because the point is that they can lie to the person that they're questioning about what cards they have, but it's not the other way around. If you lie to the police, you can get arrested for that. Right. If, I mean, If I'm even participating, even the lawyer can get arrested for that. So it's definitely not an even playing field. And so I regularly tell officers, 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've got to give me some information. And they're never willing to do that. And so most of the time, I advise my clients against talking to the police. I just keep going back to this particular language in this text message that we are told was between Bo's lawyer and him, where he says, at this point, and given this development, meaning the arrest, I don't want you talking to GBI Special Agent Shadel any further.

That and any kind of further assistance is on hold indefinitely. If he calls you, just decline to talk to him and tell him to call me. So that implies, if it's true, that the GBI was just given free access to Bo to talk and to provide assistance without the lawyer even being present. I know. And that's very surprising to me. There is no way that once I am taking a case on, once I protect that client, I am the wall. I am the protector, really. I mean, I'm the cover between the government and my client. And so there's no way that the government's going to access my client without me being present. It's just not going to happen. And what's crazy about that is that the lawyer and the client would have actually had to specifically waive the client's right to be represented

because what happens is you lawyer up. You've got Miranda. You've got a lawyer. So once you've got a lawyer, the government can't go and question you. They can't talk to you without going through your lawyer. 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 giving up my Miranda right. I'm giving up my Fifth Amendment right to have a lawyer present when I'm questioned. I'm giving that up and I'm voluntarily giving you statements without my lawyer. I mean, to me, that's never going to happen. I'm never going to let that happen with my client. I'm always going to be there because that's my job. Do you think that 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 they're not making any offers, particularly to Ryan, what does he have to lose? All he can get is a life sentence, a life without parole sentence. Well, that's what you would get if you took a plea anyway. So what's the benefit? Unless they're willing to reduce this, unless they're willing to dismiss the malice murder charge and give him something less, why would he ever enter

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Only at Kudo. Conditions apply. I've always, at least up until now, had a very strong opinion about that. And I felt that Ryan's case was never going to trial. I've always felt that Bo was going to be a cooperating witness. I'm fairly certain now that Bo is at least a less cooperative witness than he was in the beginning. He may not be a cooperating witness at all. And it appears that Bo has every reason now to try to fight these charges as best he can. Maybe it's a statute of limitations defense. I don't know. the statute of limitations defense, I don't know. With regard to Ryan, I still lean towards there not being a trial, but if I'm his lawyer and I realize that there is a statute of limitations

issue with regard to Bo's charges, and Bo theoretically would be 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, I'm not accusing anybody of anything, but hypothetically, let's say that Ryan has said, you know, no, it wasn't just me, it was Bo too, then I might be given some incentive to really try to point the finger at the other guy. And so I might be, if I see Bo's case going south, and I'm representing Ryan, and they're not really wanting to make me that great of a plea deal, I might very well be getting ready to tee this one up for trial. Because like you say, what's the worst that can happen? It's a life sentence.

Now, it could be life without parole versus life with parole, but you're still looking at 30-something years. Right, right. I mean, that's the thing. With a life sentence, you're only eligible for parole after 30 years. And then it's something like every seven years that you can be reconsidered. So nobody gets parole the first time on a life murder case where there's actually a loss of life.

So the earliest would be, what, 37 years? And that's even a long shot, you know? So the only real incentive to get Ryan to plead would be to reduce it to something like voluntary manslaughter, which maxes out at 20 years. Right. And you're eligible for parole after, I think, something like 12 years. Right. So if you were to really cut the bottom out of these charges against Ryan, it may very well give him some incentive to enter a plea. It would. I think that that's the only way that Ryan would enter a plea is if there's some reduction in the actual charges. Now, I can tell you if Bo was my client and he told me that he had done this, that he had not done what he's

charged with, but done the actual murder, if he was the one that actually had murdered her, I would have him in there tomorrow taking a guilty plea on this. Deal or no deal. I would have 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 prosecuted ultimately for the murder. Because I fully think the most he can get for the indictment he has now is 10 years. 10 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 crime, the actual murder, and if there was evidence that would have come out that would lead to him being charged, then I think the best move for him legally is to get in there and take a plea.

He's a convicted felon. He was convicted by the U.S. government for theft-related charges a number of years ago, and there's a substantial amount of restitution still owed. The fact that he does have one strike against him, what does that do? If you're the judge, how do you consider that when determining a sentence if Beau is ultimately convicted by plea or by trial? So it can affect Bo's case in a couple different ways. It can affect the way that he's actually sentenced.

The state can file what's known as a recidivist notice. And in Georgia, we've got a couple different recidivist acts. We've got one that is one time you're out, essentially. So if you're a convicted felon, they can file something that says you're a convicted felon 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 10 years. He doesn't have to serve the 10 years, but his sentence would have to be 10 years to serve whatever the judge wanted.

But it had to be that 10-year sentence. If you have three crimes, if you've got three strikes, you're out. Then not only do you have to get the max, but you're not eligible for parole on whatever sentence you do receive. The other way that his record could affect him is with parole. In Georgia, we rely very, very heavily on parole to do what's called equalized sentences. I work closely with the parole board on developing things 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 oftentimes don't understand why it makes a difference that Beau was convicted by the federal authorities after this crime against Tara was alleged to have been committed. And I think it's important to point out that you've got to look at this thing when it happened. And when it happened, Beau was not a convicted felon.

Right. But he is now. And if he testifies, that can be used against him to undermine his credibility. you're a convicted felon and can actually have copies of the documents and present those to the jury and wave them around during closing argument and say, you know, you shouldn't believe this person because as you'll hear the judge instruct you, you're entitled to completely disregard the testimony of a convicted felon. Oh, completely. I mean, if I were representing Ryan, I would trash Bo Dukes. I would go, I would parade that indictment and that conviction in federal court all over. And I would talk about the facts of that case. And I would talk about the punishments that

he could receive and what he's gotten and what he pled to. I would also bring up the fact that he's facing time, serious time in this new indictment. And so he's got a huge motivation to help the government, to testify for the government. But that only really comes into play if Bo takes the stand against Ryan. If he takes the stand against Ryan, then Ryan's lawyer is going to bring all of that up, and all of that becomes relevant to what's called credibility, Bo's credibility to testify. So the way it all boils down for me, I think, right now is that if I'm prosecuting this case against Ryan and I can do it without putting Bo on the stand, that's what I'm going to do. If I've got a statement or something in the nature of a confession or a

declaration against interest that Ryan has given voluntarily and it's admissible in court and I've got some physical evidence, maybe some type of remains or something to corroborate that, and if I can keep it really, really simple and keep Bo out of it, that might be how I prosecute Ryan Dukes. You know, and I think Bo could really just be sort of the icing on the cake. I mean, I think what they're doing is using Bo and his statements to get the evidence that they need, to get the search warrant, you know, to know where to go look, to know what to test for. And so they're using his information for that. Then they can bring that evidence actually to court. And then Beau could testify, could not testify. I mean, I think someone would put him up, but the prosecution would probably

even say, he's just extra. You know, he's not our case. He's not our guilt beyond reasonable doubt. He's just extra to explain things, how we got this information. But the information that they're obtaining from him is what's important. If Ryan has given statements that incriminate himself, maybe it's a full confession and it's corroborated even so slightly. Can't the district attorney really clean this trial up and make it really slim and make it streamlined and get through this without muddying it by putting Bo Dukes in the witness stand? If they have some other evidence, you can't convict someone just with a confession. So you've got to have something to corroborate the confession. So if Ryan has confessed, they've got to have something to corroborate the confession. So if Ryan has confessed, they've got to have something to corroborate that confession. And so what happens often in these cases is they'll use 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 Bo Duke's testimony. And so even though it offers very little value, it gives just enough value to get over that legal hurdle of having to have corroboration for the confession. If there's DNA evidence in a latex glove that they can link to Ryan Duke's and that latex glove is at Tara's house, that corroborates it, right? Definitely. So they may have something else. And if they have something that was found in a pecan orchard in the nature of some type of remains that contain identifiable DNA, that corroborates it, right? It does, definitely. It corroborates the statement, whatever confession it is he made. If I'm the DA, I can streamline the state of Georgia versus Ryan Alexander Duke, and I can keep Bo out of it. Keeps the waters much less muddy. And then the DA in Ben Hill County can do as he wishes in prosecuting Bo Dukes, including trying to throw him under the

jail for as many years as possible. Right. Definitely. I mean, there may not be incentive for them to offer Bo a deal. From Tenderfoot TV and Industrious in Atlanta, thanks for listening, guys. Today's episode was mixed and mastered by Resonate Recordings. If you want to improve the quality of your podcast or even to start a podcast of your own, go to ResonateRecordings.com to get your very first episode produced for free. Be sure to stay tuned for episode 22 on July 3rd. And also, if you haven't already subscribed to our sister podcast called Sworn, hosted by yours truly, Philip Holloway, head over right now to Apple Podcasts or wherever you listen to podcasts and subscribe today.

That way, you can catch up on our two-part premiere on the Lake Oconee murders, just in time for our special follow-up episode this Wednesday, where I'll be checking back in with Sheriff Howard Sills. You sure won't want to miss it. See you soon, guys.