Up and Vanished - Q&A with Payne Lindsey and Philip Holloway 04.27.17

Episode Date: April 28, 2017

Payne Lindsey and Philip Holloway answer your questions from our Voicemail line. Have a question? Call us at 770-545-6411. 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. Hey guys, it's Phillip Holloway again. I'm here with Payne Lindsey, and this is a special question and answer edition of Up and Vanished. We're going to be getting into your questions from not only the voicemail line, but also some from social media. So here we go. This is Martha. I live in Douglas, Georgia. It's about 25 miles from Osceola.

My question is, shouldn't those five or six people who knew something about Tara's murder be charged with concealing a crime or appropriately charged? Thank you for answering my question. It's a very good question, and assuming that that's true, that there were other people that knew about it, there's no affirmative duty in Georgia to report a crime. Now, if the police or the GBI or law enforcement in general had questioned any of these people and they lied about it, that would have been another thing entirely. But simply having knowledge of a crime and not saying anything is not the same thing as actually taking an affirmative step to conceal it, such as what Bo is alleged to have done by taking the body and destroying it. Gotcha. So where do you draw the line between having knowledge of a crime and covering up a crime? Well, the difference is in your mind,

if you simply know something happened and you just keep that secret and you take it to your grave and you don't do anything else with it, that's not a crime. But if you do anything to obstruct an investigation, if the police ask you, do you know anything, and you say no, then you've lied to them. That lie in and of itself is a separate offense. If you take some affirmative step to cover up a crime, you can be related to it. There is no real accessory after the fact in Georgia,

which is why Bo has not been charged with murder, but he's been charged with concealing a death and tampering with evidence. So there has to be some type of an affirmative act. Hey guys, it's Christy. I'm the one that created a group on Facebook for the Up and Vanish podcast fans. And my question is to you, how much of a weight legally do those text messages that Bo Duke sent Darren really have as far as in court? Will they hold up? Are they legally binding to anything as far as breaking the deal they have going on with him? If the authorities can take a look at this, is that enough to say, you know what, your deal's off the table. We're going to prosecute you this way. Anyway,

keep up the good work. Thanks, guys. That's an excellent question, and I've given it a lot of thought, and I think that it depends on what the parameters were of any agreement or understanding that Bo and his counsel may have had with the prosecutor. Bo Duke's text messages, if they are in fact his, and I think there's pretty good reason to believe that they in all likelihood are his, can be used against him in court. could affect any kind of plea deal that he may have or may have had or may have been working on. Because, see, these text messages were all back in the time frame before he was arrested. And that would have been the time when the lawyers in the case would have been talking about what kind of plea deal they might be working on. Maybe it was an immunity deal. And typically, these types of things go on in secret. And it would be reasonable for a prosecutor to say, we will work with your client, but you've got to keep everything quiet.

You can't let any of this get out. It has to be locked down secret. And if they find out that he's broadcasting it to his friends and anybody else who will listen listen that he's got some kind of immunity or some kind of a deal coming, yeah, it could absolutely torpedo his chances of getting whatever it is he thinks he's going to get in court. And if those messages are real, which I believe they are, obviously, do they hold weight in court? Oh, yeah, I think they do. If they can be authenticated as being his, if they are contradictory to anything that he says in court, a defense lawyer could eat him up, spit him out, and just destroy his credibility on the stand if there's a trial in this case, because he would have been making arguably an

inconsistent statement if he says anything different. Some of the text messages seem to be inconsistent with one another. So it almost looks like he's talking out of both sides of his mouth already. Hi, this is Erin from San Francisco. Love the podcast. I'm just really puzzled by the whole concept of Brian Duke committing this murder all by himself, sort of in isolation. And I'm just wondering your opinion on if you think Bo Duke's involvement goes a little beyond just hiding a body. I know that's what he copped to, but I'm wondering if he minimized his role in this. We may or may not ever know. I guess I'm just wondering your opinion here. It just doesn't fit right. It doesn't seem right. And I just kind of wanted to know your take on that.

Thanks. Well, let me start by saying that we don't know all the evidence in the case. We may have the outline of the tree, but we don't know what the individual leaves look like on this tree. So we're sort of in the speculation land here. But I tend to agree with the caller. I'm not 100% convinced that the narrative that's sort of emerging when you look at the warrants, combine that with the language of the indictment now, I'm not convinced that it entirely makes sense. And as to the comment about people minimizing their roles, I've talked about this before. It's been my experience now in 20-some-odd years as an attorney and being in law enforcement

prior to that, almost always when people give confessions or make admissions, at least to some degree, they tend to minimize their involvement. And it may just be to protect their reputation or the reputation of their family, or maybe they're just embarrassed. They will minimize what they say. So if you don't have a lot of physical evidence, if all or most of any physical remains were destroyed, you really just have the statements of the people involved in it, and you don't really have a lot to go on to challenge the narrative that the players involved give you in this case, Bo and Ryan.

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I noticed you said that someone had called you, a woman, and said that her car was missing at 1.30 in the morning. The woman was driving home from her place of work or whatnot. Is it possible that Duke killed her in the house, took her car with her body in it, drove it to wherever he had to put it, the P.J. Norton, and then drove the car back? And that's why the car wasn't there at 1.30, because Duke was out using her car to move her body. Spooky stuff. All right, let me know. Thanks, guys. When I heard the last edition of the podcast, and I heard that caller talk about that,

and I thought about whether, you know, if this is in fact true, this may be a piece of information that law enforcement doesn't have. And if it's true that the car wasn't there, then that can just change the entire scenario. It could change where something occurred. It could change how something occurred. It could change really any of the variables. It could move the crime scene, if true, from her home in Osceola to someplace else, perhaps the pecan orchard. So if that is, in fact, something that is accurate, it really could have an effect on the entire case and how this plays out in court. To your last point, that lady I talked to, she shared that information with the GBI a long time ago. It was not publicly known, obviously, but law enforcement knew about this for a while. So I'm not sure how they see it fitting into their puzzle, but it is interesting to me and everybody

else because that kind of goes against the narrative we've all known for so many years. Tara left the barbecue at 11 and she presumably goes home and goes nowhere else. And if she did go somewhere else, she got in someone else's car because her car was there. But if her car wasn't there at 1.30, where was she between 11 p.m. and 1.30 a.m.? Well, what I will say, and I'm not accusing the GBI of this in this particular case, because I don't know, but a lot of times, investigators choose not to believe a witness or they believe a witness is mistaken, and they simply discount what someone says to them, and they feel like it's not really relevant to their investigation. But I have been

involved personally in more than one case where law enforcement gets a certain idea in their head about how something happened, and they have tunnel vision, and they tend to discard any evidence that doesn't fit their theory. In other words, the idea is that a good investigator is supposed to objectively follow the evidence to the truth wherever it may lead, not to come up with a theory and then build a case around that theory. And I really hope that's not what's happening in this case. So if what you're saying is true, that this woman was interviewed by the GBI, gave that information to the GBI, I will give them the benefit of the doubt that they had other information that suggested that it was inaccurate somehow or that it was irrelevant. I hope that's the case. Hey, Payne, I am sure, first of all, I'm a huge fan of the podcast

calling from Knoxville, Tennessee, from Brian Duke's Facebook statuses. The tick-tock of the clock is painful, all sane and logical. It's actually a small lyric from an E6 song called Inside Out. And the actual verse right there is, I burn, burn like a wicker cabinet, chalk white and oh so frail. I see our time has gotten stale. The tick-tock of the clock is painful. All sane and logical. I want to tear it off the wall. So I thought that I would point that out. Those aren't just the prophetic words of Ryan Duke,

but they are in fact from an E6 song that's around 20 years old. Thanks. We know our 90s music. an E6 song that's around 20 years old. Thanks. We know our 90s music. I would swallow my pride I would choke on the rhymes But the lack thereof Would leave me empty inside Swallow my doubt

Turn it inside I'll find nothing but faith in nothing Wanna put my tender heart in a blender Watch it spin round to a beautiful oblivion Rondevo then I'm through with you Heart in a blender, watch it spin round to a beautiful oblivion. Rondé, then I'm through with you. I burn, burn like a wicker can. Yeah, you're not asking me to sing, are you? No.

Okay, good. Karaoke time. All right. Yes, we did know that. It is very interesting if you go analyze the rest of the lyrics of that song. I didn't want to read too much into that. But my whole point was some people tweeted me and said, hey, those are just song lyrics. That doesn't mean that that's how he felt. You know, they're just lyrics of a song. And my thing is, anytime you quote

somebody or something, it is in some way a representation of yourself. Even Kurt Cobain quoted Neil Young in his suicide note. Right. And things you post on Facebook or on social media that you think, you know, this is interesting. This is what I want to share with the world or my Facebook friends. That at least gives you some glimpse into what's interesting to you at that moment in time. Hey, guys, this is Madison from Houston. And I just wanted to say I've really been enjoying Philip on the podcast. I think all of the legal details and everything are really interesting and you don't always get to hear that stuff on other true crime things. So I really appreciate that. My question is about

Bo Dukes. I was wondering what would be a potential reason for the DA first promising him that he wouldn't be arrested or charged with anything and then eventually charging him and arresting him. What would be the reason for them changing their deal or for him lying about that part of the deal? It was just a little fishy to me. So keep up the good work. Really enjoying it. Thanks. Well, I'm always glad to hear from the callers in Houston. I went to law school in Houston and I really have a great affinity for that city, except for the last time I was there was for the Super Bowl. And I'm not going to really talk much more about that. Oh, my goodness. Please don't. Okay, but back to the issue at hand. The text messages indicated, certainly if they were from Bo, and we think that they were,

that he was of the mindset that he was not going to get arrested. So something must have changed to cause him to get arrested if that's the case. Who knows what that would have been, but it certainly was a decision that was made by law enforcement authorities, probably the district attorneys that are involved. We know that the two different DAs from both Ben Hill and Irwin County were working together on this. You have the multiple law enforcement agencies, and of course, you know, judges sometimes have to get involved in approving types of immunity, and it may be something that a judge just wouldn't go along with. So without knowing more, there's really no way to say other than something happened that caused law enforcement to change its mind about arresting him if, in fact, the original plan was that he was not going to be arrested. Hi, this is Ron Asako from Jacksonville, Florida.

We are definitely enjoying your podcast down here. My question is, if this case goes to trial, will there be prior to the beginning of the trial, the prosecution lay out for the public a scenario and timeline of the events of the crime? And if that's not something necessarily they'll do, will they do something like that at the beginning of the trial? I appreciate it. Keep up the good work. If there's a trial in the case, it will start with an opening statement. And what usually

happens is each side will give the jury a roadmap, if you will, of what they expect the evidence to show. It will not give all the evidence, but it will certainly give a decent preview of what the trial should look like and what the jury can expect to happen throughout the course of the trial. Now, the other end of the extreme on this, and I've talked about this before, and I can't state it enough, that it is entirely possible that if a plea deal is worked out with either or both of these defendants, particularly with Ryan, that even though the courthouse can't be closed, they could go there at 2 a.m. on a Saturday night or Sunday morning and enter a plea and stipulate to a factual basis without the court reporter having to take down any details of exactly what the DA says happened. And he could sign the paperwork and head off to prison or wherever else it is he's supposed to go. And the public would not really ever have an official record of exactly what happened.

So that is within the realm of possibility. I certainly hope it doesn't come to that. I want to believe that it won't, but it is something that I'm concerned about. Embrace something new at Starbucks. Introducing the Ice Lavender Cream Oat Matcha Tea Latte, a creamy drink where smooth matcha meets subtle floral notes from our airy lavender cream cold foam. Only this spring, only at Starbucks.

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Help CAMH build a future where no one is left behind. So, who will you rise for? Register today at sunrisechallenge.ca. That's sunrisechallenge.ca. Hey Payne, this is Vonda. I have a question. As far as the location the glove was found, where was it in relations to the window that you talk about being unlatched or the screws being removed? Thanks. Love your show. The glove, the latex glove was found in the front yard near the doorstep, pretty close to the door, in a bed of pine straw. step pretty close to the door in a bed of pine straw. The window that was talked about that Maurice Godwin talked about is on the backside of the house. And the only way to get to the backside of the house is to either go around the yard to the gate and walk that way. There actually isn't a back door to Tara's house that goes into the backyard, which is something to keep in mind when you're

thinking about Tara's dog. And if it was let outside, you can't just open the back door to her house and let it outside. You have to actually walk out the front door around the front yard, open the gate, and then walk the dog into the house or vice versa. So it's not as simple as just opening the back door. Yeah, the glove was found in the front yard. That window was to the backyard, but there is no back door. Hi, Payne. This is Eric in Lodi, California. So I had a quick question. I know you said 18 episodes, but will you give any updates on the case afterwards if you do stop and start doing your season two. Thank you. Have a good day. I did say 18 episodes, but there might be some more. Let's just put it that way. There's some big revelations in episode 18 that might change the trajectory of this podcast, at least for the

time being. And I've been holding it to my chest for a while and trying to investigate more into it. But the cat's going to come out of the bag a little bit in episode 18. If it's more breathtaking than 17, then I think we all are on pins and needles waiting for that. Tip of the iceberg. Hey there, my name is Leah. I'm from the

atlanta area and i live in leesburg georgia now but um i have a question about the indictment i know in this last episode you talked a lot about um one hand versus both hands um hands was listed in the arrest warrant but it seems to me that it would be pretty difficult to kill someone with just one hand um since there was no weapon. What do you make of that? If he strangled her, which is something that we've kind of heard through the grapevine all along, can you strangle a person with one hand? Anyway, that's my question. Love the show.

Thanks. Well, actually, just a few minutes ago before we started, I tried to strangle Payne with one hand, and it didn't work. It didn't work out at all. I've got really big hands. I inherited that from my father. I'm just quick. Yeah, he's pretty squirrely. But that is a big difference. One hand versus two, if you imagine someone being strangled, you imagine two hands around the neck. being strangled. You imagine two hands around the neck. So there's been cases that I've been involved in in the past where there was an aggravated assault and one hand was being used

allegedly for one purpose and another hand was being used simultaneously to do something else. I won't get too much more into detail than that. But just yesterday, I went and looked at recent indictments in other jurisdictions in the state of Georgia that accused people of aggravated assault using hand or hands, or also I included with that other objects, which are not typically deadly weapons. And every time I found such an indictment, it gave a little bit more information. It didn't say just, you know, use their hand or hands to commit aggravated assault. It would say, as does this indictment, it says when used offensively can cause serious bodily injury or death. But they give a little bit more explanation. They say by strangling

said person or by hitting such person about the head with this lamppost. So the indictments that I have seen recently, and when I used to draw indictments when I was a prosecutor, when we were talking about weapons that aren't your typical weapon, we would give a little bit more detail because the indictment has to put the defendant and his lawyer in this case on notice of what they're supposed to defend against. And I read the indictment and I just pretended I didn't know anything else about the case. And I asked myself, I said, would I know what I'm going to have to defend against just by reading the language of this indictment? And the only answer I could come to was no, because all it says is he used his hand. It doesn't say how.

So maybe my client decides he doesn't want to talk to me, but I still have to defend this indictment. And maybe there's no other information in the case file that says anything about it. I'm not on notice of what it is I have to defend, and that is what indictments are for, is to put the defendant on notice. It's part of constitutional due process. You have to know what you have to defend against in court, and if the indictment is not worded sufficiently, then it's an invalid indictment. If, for example, a prosecutor is expecting there to be a plea deal, though, and there would not be any challenge to an indictment, it might make sense to draw an indictment that is a little bit more vague, shall we say. Today's episode was mixed and mastered by resonate recordings if you want to improve the quality of your podcast or start a podcast of your own check them out at resonate recordings.com thanks for

listening everybody be sure to tune in monday for case evidence you'll be glad that you did Thank you.