Up and Vanished - Q&A with Payne Lindsey and Philip Holloway 03.17.17

Episode Date: March 17, 2017

Payne Lindsey and Philip Holloway answer your questions from our Voicemail line and from social media. Have a question?  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. with beau dukes having a criminal history of i would guess this be a felony charge stealing that large of an amount from a federal government why was his bond so low with him being so involved in this case and having a criminal history why was was his bond only $16,000, $17,000? Just a little side note, I'm sure it has nothing to do with it, but isn't it strange that Marcus Harper and Bo Dukes at the same time were living in Savannah? Anyways, just curious about the bond. Thank you.

They seem pretty low given the nature of this case and how high profile it is. But it also is illustrative and tells me that he's probably provided them a lot of valuable information and he's being rewarded for it. Hi, Elizabeth Lester from Auburn, Alabama. I'm just calling to ask whether or not the charges are being brought against Bo. Like if he's made some kind of deal and then later on it's revealed that his involvement was more than they previously believed, because it kind of sounds like he did more than just help get rid of the body, very suspicious circumstances. So if they were to add on more charges, would that negate any kind of deal they made with him previously? Okay, thank you. Okay, so I've given this a lot of thought.

Basically, the idea is that what if he's lying and trying to spin it and say, Ryan did it. I had nothing to do with it. And they go through and they get a conviction on Ryan. And let's just say, hypothetically, Bo gets probation and down the road, 10, 15 years from now, we realize, hey, it was the other way around. So the issue is, what can they do about it? Well, probably not much because there's double jeopardy issues. They would essentially have to indict him and withstand a fierce legal challenge about double jeopardy. They could, of course, go back and charge him with perjury and false statements. One thing about it is, though, if that happens to be the case, the prosecutor could argue that they did not know until some point in the future that it was the other way around. Therefore, they weren't aware of the crime.

Therefore, jeopardy had not attached. That would be the counter argument, but there's definitely a serious double Jeopardy problem if that situation were to materialize. That's, I think, why they spent so much time between arresting Ryan and arresting Bo, because they needed to make very sure that they could corroborate everything that he was telling them so that they would not find themselves in that position in the future. So if there was a deal in place with Bo for information, but they find out Bo lied about something, can the deal be off the table or is the deal just done when it's done? The deal is done already, I believe. Now, if they find something quickly that indicates he's not been truthful,

because I promise you, truthful testimony and full cooperation is part of his obligation under any deal that I believe he has. And if he doesn't deliver on that promise, then they don't have to deliver on the deal. Hi, this is Gretchen from Magnolia. I had a question about the way the charges were filed. So if in the future, Bo Dukes is implicated further than what his charges are, could he be charged for a different crime in the other county since he hasn't been charged in the same county as Ryan Duke? Anyway, thanks so much. Love your show. Bye-bye. Very similar to the last question. They're not technically co-defendants. The warrants

allege that Bo acted solely in Ben Hill County. They alleged that he didn't do anything in Irwin County. Now, if he was doing something in Ben Hill County with Ryan, Ben Hill County could also charge Ryan. But if he's already got a deal cut to plead to something over in Osceola, what's the point? Hey, Payne, my name is Toby. I'm listening out of Oregon. I just wanted to give my comment on the difference between a burglary and what you might call a home invasion. Now, I am a prior to law enforcement and my training and experience taught me that the high majority, I think it's about 65% of burglaries happen between 6 a.m. and 6 p.m. And that speaks to the intentions of the burglar or the thief, not wanting to have any

sort of confrontation, but just wanting to get in, take what he's going to get and get out unseen. Been following the podcast for a while. I'm looking forward to the next episode. Thanks. Well, if we're talking about Atlanta or Portland in Oregon, where the caller's from, I could buy that. But this is Osceola, Georgia. We're talking about 4,000 or 5,000 people. And this type of residential burglary, remember, I used to be a police officer there, and I grew up very close to there. That kind of thing just doesn't happen.

So I've said all along, I'm not buying the botched burglary narrative. Maybe that's what happened. I certainly wasn't there, but I'm just not buying it. And there's just not that type of burglary that occurs very often on that street. It's right by the police department. It just doesn't happen down there. People have to understand where we're talking about. This is not a major metropolitan area where you have somebody who shows up at noontime in a plumber's van so the neighbors don't notice and they go in and burglarize your house. That kind of thing just doesn't happen in Osceola. Hi, this is Jordan calling from San Diego, California. I actually grew up in Georgia in a small town, southeast Georgia. And so listening to the podcast almost takes me back home for a little bit. My question is, will the discovery of her body or her remains, will that change anything in the convictions of

Ryan Duke or Bo Dukes? Or do they have enough evidence to convict and try them right now? I'm just curious if that's going to change anything towards getting a longer sentence or anything. So thanks for answering questions, and great job on the podcast. It's hard to say I enjoy it because it's heartbreaking, but I just have enjoyed learning more. Thanks. Okay, so here's the deal. In Georgia, you cannot convict someone based solely upon their confession. You have to corroborate that with something else. It doesn't have to be much. Slight corroboration will work. If they found a

tooth or a skull fragment or anything like that, that could corroborate a statement. If they have another witness, for example, a Bo Dukes coming in to testify, that would corroborate a confession if one exists. So assuming for the sake of this discussion, and of course he's presumed innocent, but assuming Ryan confessed or made some statement that came close to a confession and it was corroborated by statements of other witnesses, for example, a bow, dukes, and maybe some physical evidence like a bone fragment, that would be enough to convict.

I'd like to know what Mr. Holloway makes about the warrants for duke and dukes seemingly being completely separate, meaning they're in different counties for different crimes. How could something of this nature not overlap? And what does that mean for the strategy of the police and the prosecution in this case? Thank you. Well, they do overlap and they are related, but it's true they're also in different counties. But not only that, they're in different judicial circuits, so they have different district attorneys handling each case, so they're not co-defendants in the traditional sense. they have a case that they need to solve, if they need the district attorney for Ben Hill County to cut a deal with Bo so that they can convict Ryan, that would not at all be hard to do and

it wouldn't be uncommon. Once Bo lives up to his part of the deal, then he goes presumably to court in Ben Hill County and enters whatever plea they've worked out. It may very well be that the deal is that he doesn't ever enter a plea, that they simply dismiss his charges once he testifies, if it comes to that. We just don't know what the terms of the deal are, but under Georgia law, that deal, whatever it may be, would have to be disclosed to Ryan Duke and his attorney because it affects the credibility of the witness. Because if they've got a lot to gain by testifying the way the prosecutor arguably wants them to, then that is information that cuts against the witness's credibility. And he's already got one strike against him because he's a convicted felon. And under Georgia law, convicted felons are deemed to be less than credible, and a jury can feel free to disregard any of their testimony.

His crime had to do with theft. We call that a crime of moral turpitude, and it goes directly to someone's character for truthfulness. And it would be very fertile ground for cross-examination by a defense attorney if the star witness is none other than Bo Dukes. Hi, my name is Jovan Carmichael. I'm from Cincinnati, Ohio. My question is, why was Ryan Duke arrested first if Bo Duke did the majority and was the mastermind behind the crime. And I don't think it's been said yet on the podcast what led to Ryan Duke's arrest, whether it had been forensic or in confession. So I'm just curious on that. Thank you. Great

podcast. Love it. Bye. Reading the tea leaves, what I see happening was Bo getting an attorney and then going to the authorities and saying, hey, I've got this information. And then the authorities had to corroborate it and then they confront Ryan with it. Then they feel like they have enough evidence to charge Ryan. And of course, the killer to the police and the authorities, that's the big prize. And if you've got enough evidence, you think to obtain an arrest warrant, you go ahead and do it then before somebody has a chance to maybe leave town. But if they've already got one witness who's cooperating, who's showing them where to go look, what pecan orchards to dig up, things like that.

Who's got an attorney and who's already come forward. There's no reason to think that person's a flight risk. So you can afford to wait until you get all of your ducks in a row and corroborate his statements. Have him go with the GBI to the pecan orchard. Show them exactly where to look. Give them a lot of details. Give them a lot of interviews. And once they do that, then it's time to go ahead and take the warrants for Bo.

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And my legal question is, do you think there will be any investigation or release of documents so we can figure out if there was a cover-up? Because of both family connections, I feel that the GBI had this all figured out years ago, but were asked to bury it by said connections. If you ask around, I'm sure people will have stories about Bo doing whatever he wanted in that town because his family was rich and had connections. It's easy to jump to that conclusion that there was some kind of cover-up, and I think it would be in the realm of pure speculation at this point to accuse somebody of covering anything up. But as to the release of documents, I'm skeptical that the public will ever get all of them. The family may get some or most of them at some point. But if there's convictions in this case, there may be the potential for an appeal. And until a case is completely closed and there's no longer an active investigation,

the GBI can simply refuse to release them under the open records law. They can also choose to release them if they want to. It's up to them. They can say with something of a straight face that it's an open investigation by simply saying they're considering whether there were other people involved. And so they could hang on to that excuse for quite some time. And once you have a conviction, though, they have to have a narrative of what they're convicting that person of, correct? And wouldn't they have to include or not include other people? Or can they just come up later and say, actually, you know, there might have been someone else involved?

They can always hold on to that as a possibility that there may be other people, and therefore it's still an open investigation. But what's going to come out in court, if there's any guilty pleas or if there's a trial, doesn't have to be every bit of evidence that they have in their case file. They just need to present enough to meet their burden of proof beyond a reasonable doubt.

Or in the case of a guilty plea, they could get away with saying even less. They could theoretically ask the defense lawyer if they stipulate that there's a factual basis for the plea. And if they say yes, then they don't have to give any details in court. Hey, Payne. My name is Ben from Southern California. Now, there was a lot of talk in the last case evidence episode about the charges and some of the questions regarding the charges, and it was suggested that they may have been poorly thought out or poorly written. My question is, is it possible as the investigation unfolds more now that the arrests have been made to add additional charges in the court proceeding if there's more clarity as they find more things. Thanks. Love the podcast.

Have a good one. So the district attorney will draft an indictment that at some point will be presented to a grand jury, and the indictment is going to be the formal charging document that works its way through the court system. The warrants are just sort of a placeholder that authorizes a jail to hold someone in custody. But they will be replaced and superseded for both defendants by indictments or potentially an accusation, which is the same thing. indictments or potentially an accusation, which is the same thing. It's just that you bypass the grand jury and the DA draws up a similar document and it's just filed into the clerk's office. But the warrants are not the formal charging documents. And to the extent that there's any inconsistencies in the wording of any documents like the warrants, the DA has the opportunity

to clean that up and make sure that whatever is filed meets all the elements of the law. The DA can absolutely increase charges. They can decrease charges. They can do practically anything with the grand jury. There's a saying that a good DA or even a bad DA could indict a ham sandwich because there's no other party there. The defense is not there. There's no judge there. It's just 22 some odd people and the prosecutor and probably one investigator. So they can get a grand jury to charge anything they want and they can increase

charges against either of the co-defendants theoretically. Hi, this is Jessica. I'm from Atlanta and I love the podcast, and I have a question for the defense attorney who's going to be answering legal questions. My question is, I'm a bit confused about how Bo and Ryan can be convicted based off of confession alone, and if it's possible for them to even be convicted of her murder if a body is never found. Thank you so much. So excited for the rest of the podcast. Love hearing it. Well, as we said earlier, you can be convicted primarily on a statement or a confession as long as there's slight corroboration. It doesn't have to be much at all.

Let's hypothetically say Ryan confessed and said, yeah, I choked her and I killed her and I took her to the pecan orchard. And let's say they never find anything and they never find another witness. They find nothing to put him at the house. That confession is not going to be sufficient. his hair follicle at the crime scene, or if they find his DNA, or if they have a statement of a co-defendant, or somebody who helped him in the process, or maybe somebody he's said something to in the past that could confirm, corroborate his statement, that would be legally sufficient. Now, the caller asked if it was necessary to have a body, and that's a very common question. It was necessary to have a body, and that's a very common question.

The answer is no. You don't have to have a body. It certainly helps, and in most murder cases, you do have a body or some type of remains. It's called the corpus delecti, the body of the crime. But it's not an essential element of the offense that the prosecutor produced motive or a body. They could get a conviction without either one of those. good friends. The conversations you have when you share a love of something, about ideas, when you want to hear about everything. I feel really lucky to have these conversations. Cue with Tom Power. Available now on Spotify. See yourself buying a home one day? Do future you a favor. Open a Questrade first home savings

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This is Todd from Athens, Georgia. I'm kind of familiar with the criminal justice system in Georgia, but I'm curious, since both Bo Dukes and Ryan Duke don't have the same charges, will they be co-defendants together? You know, if both cases do go to trial, will they be tried together or are their cases being handled separately? Anyway, it's a great job and I love listening and look forward to the episode on Thursday. Thanks. Their cases are being handled separately because they're in different counties and different jurisdictions and they're not technically co-defendants. Here's the thing, though. Bo is going to be a witness in any trial that Ryan might have. And I say might because I don't believe there's going to be one. But if there is one, the deal is that Bo gives truthful testimony in that trial

and cooperates fully. So there's not going to be a trial involving both of them as co-defendants. If there's a trial, one of them is going to be a witness in the witness chair and the other one's going to be seated at the defense table. Hi, Up and Vanished. This is Carrie from Dayton, Ohio. I've been listening to the podcast since the beginning and right now the question that I have is, even though it's been alluded to many times in the podcast and in other news outlets that Tara's remains may have been found, I'm wondering what's going to happen to the case if her remains don't end up being found in the Pecan Grove. Does that affect the convictions against Bo or Ryan? And if so, what is that going to look like for their future cases?

Thanks. Keep up the good work. Bye-bye. Well, the arrest warrants against Beau alleged that he did certain things with remains. So that suggests to me that they found remains. We know that before the gag order went into place, they made statements that some things of evidentiary value or items of evidence were found. They didn't go into a whole lot of detail, but I think reading between the lines and looking at those warrants, I'm fairly confident they found some type of physical remains. It may not have been much, but I think it's very difficult to completely destroy a body. Hi, question for Mr. Holloway. So it's Tony over in Greenwich, Connecticut. It's been said that Bo Dukes may have worked a deal to

testify in exchange for a reduced sentence, undoubtedly describing Ryan Duke as the main perpetrator. Couldn't Ryan Duke now say, wait, I confess because I was scared, Bo did it, I just helped, and I want a deal to testify. I mean, because actually, based on those background description and personality, he does seem more likely to have done it. Anyway, who gets picked for the testify deal? Is it just who first requested it or, you know, who had the fastest acting lawyer? Just wondered. Thank you very much. Just wondered. Thank you very much.

Well, a lot of times when you have co-defendants and they truly are co-defendants in the sense that they acted together to commit a crime, oftentimes it's which lawyer gets to the prosecutor first and offers to help that gets the deal. That much is true. But that's not really what we have here, because the way it's been alleged is that Ryan acted alone in terms of the death, but only later did Bo get involved. And see, Georgia doesn't have any law like an accessory after the fact that could cause Bo to be liable for the murder. We have what's called a party to the crime. We have what's called a party to the crime. If you participate in any way, encourage somebody, help participate at all in the commission of a crime, you can be charged and convicted and sentenced just as the main perpetrator. So unless they have some evidence that Bo was at that house in Osceola and participated in any way, then he's not a party to the crime. At best, he is someone who is guilty

of, as alleged, hindering the apprehension of a criminal, destruction of evidence, hiding a body, and those types of separate criminal offenses. But we don't have criminal liability for accessories after the fact in the state of Georgia. Hi, Payne. My name is Heather, and I'm calling from Louisiana. of the fact in the state of Georgia. Hi Payne, my name is Heather and I'm calling from Louisiana. This week when you were talking to Phillip Holloway, he mentioned that Ryan Duke and Bo Dukes may have already struck deals with law enforcement and that they may plead guilty without ever having to go to trial. He also mentioned that if this is the case, the GBI may decide to keep the case open to prevent any public records release from happening in case of appeals. My question is, if that does indeed happen, would the family be privy to the

information that law enforcement has, even if the public is not? If I had to guess, and it would only be a guess, I think the family probably has already been made aware of a lot of things that we in the public or in the media don't know. Georgia has a Crime Victims Bill of Rights, and it allows and requires prosecutors to include family members in decision-making processes, such as who do we give deals to and what kind of deals are they now. The tail doesn't literally get to wag the dog. and what kind of deals are they now. The tail doesn't literally get to wag the dog. It's ultimately up to the prosecutor. But they are required at least to consult with and confer with the family

and to consider their wishes. So in so doing, it's almost impossible to comply with the Crime Victims Bill of Rights without telling them what happened. So I believe the family, certainly the stepmother and father and perhaps other close relatives know more than we all do. And they're probably just maintaining their privacy and keeping it to themselves. Hey, it's Kristen from Minneapolis. Loving your podcast.

Curious to know if Bo Duke comments on the website or on Facebook are admissible in court. Just curious. Good job. Loving it. Keep going. Thank you. Yeah. Wow. I'm so glad that question was asked because I really wanted to answer it. The answer is hell yes. Anything that somebody says can and will be used against you in court. We've all heard that a million times. It's part of the standard Miranda warning. But if he says something in any capacity that incriminates him in a crime and he's on trial, it's by definition not hearsay. It's a declaration against interest. It's something that is admissible against him. And so if it's provable and authenticated that it was him who made these statements and that they are, in fact, inculpatory, meaning they would indicate his guilt, then they're relevant and they're admissible. They're not hearsay. And yes, they absolutely could be used against him.

Hey, this is Kristen from Virginia. My question is regarding the charges for Bo and Ryan. Is there any sentencing benefit for Ryan that the two of them swap roles in this crime? So is there any reason why Ryan might go along with the murder charges, leaving Bo as the accessory, if that's not really what happened? So like, could these charges change for each of them as the investigation continues? Thanks, guys. Well, of course, the charges could change if the evidence points in a different direction. But I think that the investigation is essentially over. points in a different direction, but I think that the investigation is essentially over. I think that the charges against Ryan are going to be murder. I don't think he's going to challenge those charges. I could certainly be wrong, but I think that there will be some kind of deal put

out there if there's not already one, and I don't think there's going to be a trial. So could the charges change? Yeah, but it's going to require different evidence. It's going to be a trial. So could the charges change? Yeah, but it's going to require different evidence. It's going to require new information. Otherwise, I think things are where they are. You know, Payne, listening to these questions that have come in to the voicemail line and on social media and to me directly and to you directly, it seems like a lot of people are really interested in sort of the real world of what goes on in the court system and like lifting the veil from the process. I wonder if this is something we should consider doing more of, maybe a separate podcast. What do you think? I like that idea.

Thanks for listening, guys. As a reminder, next Monday is a case evidence. I'd also like to give a special thanks to Resonate Recordings for editing and mixing today's episode. They specialize in podcast editing and production. So if you're looking to improve the quality of your podcast or start a podcast of your own, check them out at resonaterecordings.com. Thanks, guys, and I'll see you Monday.