Up and Vanished - Q&A with Philip Holloway 05.11.17

Episode Date: May 11, 2017

Philip Holloway answers 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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19 plus to wager. 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. hi guys this is chase up in chattanooga like the show a lot i had a question about where beau dukes is currently i guess i got the impression that after the arrest he was

incarcerated and unable to communicate with people. But he's been texting or at least been on a message board since the arrest. I was just wondering if he is actually incarcerated or out on bond as part of his plea deal. I was wondering where he is now. Thanks a lot. Bye. Well, that's a good question. Bo Dukes is out on bail. It was prearranged by his attorney. He literally turned himself in to the authorities in Ben Hill County, Georgia, and was booked in, processed, fingerprinted, photographed, and released on just about $15,000 bail within a matter of just a few hours. So he really didn't spend any time in jail, so to speak.

within a matter of just a few hours. So he really didn't spend any time in jail, so to speak. He was arrested in the sense that he was taken into custody to be fingerprinted and photographed and processed, but he was immediately released on bail. And in all likelihood, unless he violates some condition of bail or commits a new offense, he will remain free. And if he's communicating on the message boards or anywhere else about the case, there is a possibility that he could be in violation of the gag order. And if someone, perhaps the judge or anybody else, decides that they want to take any action, the judge has contempt powers. And if she feels that he is in contempt of her order, contempt powers. And if she feels that he is in contempt of her order, she could order him back to jail. But barring any of those things happening, he is out on bail, he's free, and he will remain free at least until the cases are over and the disposition of the criminal charges against both

defendants can be completed. Hey guys, this is David from Colorado. Is the state saying that on the night she was murdered, that Ryan Duke by himself took her to the pecan orchard and dumped her body and then somehow contacted Bo Dukes for help and disposal of the body, or are they saying that he contacted Bo Dukes prior to moving her to the pecan orchard? Thanks. Love the podcast. Keep up the great work. Another good question. The first scenario set out by the caller is the scenario that really is painted by the warrants and the indictment in this case. The narrative, if you will, that we can piece together from what we've learned before the gag order and based on the charges is that according to the indictments and the narrative the state has laid out, if you will, Ryan Duke acted alone as far as committing the murder and did not really

bring Bo Dukes into it until sometime after, a matter of days, when apparently and allegedly he was asked to help cover up the crime by helping to dispose of, in what we believe to be now, by burning the body over a period of days in the pecan orchard. So it's not that they're saying that Bo had some prior knowledge of this or participated in it, but they're saying he was essentially an accessory after the fact. But since Georgia has no criminal liability necessary for being an accessory after the fact, they're relying on separate charges such as concealing the death and tampering with evidence and things of that nature with regard to both charges. And I had a question for Philip Holloway. With the indictment being so vague and even the arrest warrants being vague, would they make these vague to help the family keep her situation and her story private? Like, would the family ask to be respectful of their privacy so that news about Tara can't be put out there? Would that ever be possible?

Thanks for doing such a great job and have a good day. Well, I've said from the beginning that the arrest warrants were not drawn very well at all. They didn't even track the language of the relevant statutes at play. The district attorney did a better job in cleaning that up when the indictment was drawn. It does at least allege the essential elements of the offense, but as I've said before, the details about exactly how Ryan was allegedly using his hand to commit a murder is very vague, and it doesn't really put anybody on notice of what they need to defend against. As a matter of constitutional due process, indictments need to put the defendant on notice of exactly what they're being charged with.

And anytime you have the allegation that an object, which is not always a deadly weapon, such as your hand, if the allegation is that you used your hand in a deadly manner, then some specificity, in my opinion, needs to be contained in the indictment. Why that detail was left out, I would not even begin to speculate about the district attorney's reasoning for that. Recently, I saw a case in another county where a judge threw out an aggravated assault indictment because it was vague and basically for that reason. It didn't set out enough information to put the defendant on notice as to what exactly they were being accused of in an aggravated assault. So the vagueness of the indictment does open itself up potentially to a legal challenge as to the way that it's worded.

If, on the other hand, there is some discussion about a possible plea deal or something in the works. Yes, it is not beyond the realm of possibility that the details could be held close to the vest so that the family of either the victim or the defendant or perhaps both are not necessarily dragged through the mud any more than they already have been. It could be that they are respecting the privacy of the victim's family, and that's definitely something that could happen. It's worth noting that in the event that any plea deals that may be in the works or discussions that are in the works break down, the district attorney can always go back to the grand jury and seek a second indictment if he feels that he needs to put more detail into the indictment to make it a little bit more specific. It's not at all uncommon for district attorneys to send a case back to a grand jury if there's a problem in the language of the first indictment.

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If you have any questions or concerns about your gambling or someone else close to you, questions or concerns about your gambling or someone else close to you, please contact ConnexOntario at 1-866-531-2600 to speak to an advisor free of charge. This is Brian in Florida. Great work on the podcast. My question is centered around the report stating he killed her with his hand. So assuming that that's a punch or a blow, you know, with a fist, what kind of defense could that open up for him or his attorney to lean it more towards manslaughter? You know, in the moment, if it's a burglary or an invasion and he awakens her or he walks in on him and he uses his fist to, you know, as a blow, that could potentially kill her, but that may have not been his intention.

So is he maybe going to lean that way toward saying, I didn't intend to kill her, whereas if you strangle somebody, your intentions are pretty clear. What options does that open up for him if that's where his defense takes him? I appreciate it. Again, keep up the good work. Okay, so a defense of manslaughter would require some type of sudden provocation that would cause somebody to do something irresistible. The classic example is when a spouse comes home and finds another spouse in the act of having sexual relations with a third party.

They just really can't control themselves. There's this sort of sudden heat of passion that causes them to do something that they really wouldn't otherwise normally do. That's not the scenario that we are presented with here, at least the way that it's been alleged. The fact that you have these two charges of felony murder speak to, I think, the caller's question a little bit better, because if it was not an intentional act, in other words, if it was a punch or something that happened suddenly that really was not the defendant's intention when he entered the house, then the felony murder still gives them the life sentence that they may be seeking because felony murder and malice murder carry the same penalty, which is a life sentence in the state of Georgia. So if a jury can't believe that it was something that was done maliciously or intentionally,

they can fall back and hang their hat on the felony murder counts. This is Dana calling from Memphis. And my question is, what involvement does Tara's family have in whether or not the death penalty is sought? Do they have any say in that, or is that totally up to the prosecutor and the VA or whomever? Thanks so much. The family has a lot of input into what decisions the prosecutor makes in this case. They don't get the final say, but the Georgia Crime Victims Bill of Rights requires the district attorney to keep them in the loop. They have to be consulted. If there's going to be a plea deal, then they will have to be part of that discussion. The district attorney will most certainly take their wishes and their

desires into account. At the end of the day, the decision is for the DA to make, but as a practical matter, in cases like this, the DA will usually defer to the wishes, at least in large part, of the victim's family. And under the Crime Victims Bill of Rights, they literally have to include them in the process of the decision-making. For example, if they decide, we're going to cut you a deal, Mr. Duke, and we're going to take the death penalty off the table, we're even going to possibly take life without parole off the table if you'll enter a plea of guilty to murder and accept a life sentence with the possibility of parole. It's not beyond the realm of possibility that the charges could even be reduced even further. But again, that would all be something that the DA would decide after full consultation with the family.

My name is Rebecca from Jacksonville, Florida, and I have a question regarding the reveal of Brooke's conversations with you on the most recent podcast. If Brooke was the one who told her mother about Bozer's reveal of disposing of Tara's body, and then her mother inevitably told the police about it, wouldn't it be safe to assume that Brooke will be a witness called at trial? And if she is, wouldn't her discussing the case be violating the gag order? and if she is, wouldn't her discussing the case be violating the gag order? I believe it was said on one of the previous podcasts that the gag order restrictions were loosened, but it seems like this would definitely be breaking any restrictions that are in place. Just curious to get your insight on this. Thank you so much. Bye. Yes, it does seem very likely that Brooke and her mother may very well be witnesses if there's any trial in the case.

These discussions, however, that were had and any information that may have been revealed earlier in the process could have predated any gag order. And the gag order as amended is limited to the parties to the case, the two defendants, their lawyers, their legal team, law enforcement officers, both past and present, who may be involved in the case. Witnesses themselves are not really determined until there's a witness list prepared by the DA. So I would suspect that there are going to be witnesses, but anything that they may be discussing like this does not appear to be a violation of the current gag order, bearing in mind that the defendants themselves, Bo Dukes and Ryan Duke, they are covered by the gag order. And if they say anything in violation of the gag order, they could be held accountable and potentially subject to

contempt of court. Hey, I'm Tom Power. I'm the host of the CBC podcast, Q with Tom Power. I get to talk to artists from all over the world, writers, musicians, actors, directors, all kinds of creative people. And we try to have the conversations you have with really, really 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. Q with Tom Power. Available now on Spotify. Crypto is like finance, but different.

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It's easy and only takes a few minutes. The sooner you get started, the more time your down payment has to grow. Open an account today at Questrade.com. Hey, guys. Listen, this is Chris in Raleigh, North Carolina, and I have a question about Ryan's plea. By making the statement that he is not guilty, is it possible that he's really saying with his counsel, look, I did do this, and then his counsel is saying, but we're going to plead not guilty? That way we have to have a trial. That way we can bring Bo in. That way we can bring in other people if we need to, to confuse the evidence, to cloudy it all up in the hopes that Ryan gets a lesser sentence. Keep up the good work, guys. Thanks. is really what was expected to happen. It really just preserved the defendant's rights, including his right to a trial, until his lawyer was able to go through and digest all of the

evidence in the case. It would be malpractice really not to do that. We don't know what may or may not be going on in terms of discussions between his counsel and himself, and we really shouldn't know those things. But the entry of the not guilty plea does not necessarily mean there will be a trial. In almost all cases, there's an entry of not guilty, and once a plea deal can be hammered out, the not guilty plea can easily be changed to a plea of guilty down the road, but not until the defense counsel has an opportunity to examine whether or not there are any legal or factual defenses. So this is really routine, quite frankly, and it's the way that any competent lawyer would handle a case, it would be extremely unusual to rush into a case like this and simply plead guilty at arraignment. It just doesn't happen.

It's unheard of. And I am not surprised one bit that it happened the way that it did. One thing to keep in mind is it's not the lawyer's decision about whether or not to plead guilty or not guilty. It's always done by the defendant after consultation with the attorney, but it's not the attorney's decision. In other words, the lawyer can't force someone to plead not guilty if they really want to plead guilty. And they can't force them to plead guilty if they really want to plead not guilty. So that decision is for the defendant and the defendant alone to make. This is Erin, love of the podcast. I was calling to ask if we know anything about Ryan Duke's attorney, especially since he's not guilty. Recently, I was just curious if his attorney

is court appointed or if it's a private attorney and if we know anything about his legal angles or legal representation. Thank you. Well, Ryan's lawyer is John Mobley, and he's with the Tifton Circuit Public Defender's Office, and he is court appointed. He is a graduate of the University of Mississippi Law School. He graduated in November of 1995, so he's actually been practicing law about a year longer than I have. He has been an active member of the State Bar of Georgia for quite some time. He's very experienced and by all accounts knows what he's doing. So in terms of the legal counsel that's been appointed to the defendant, I would say the defendant is in good hands. And by all accounts and from what I've seen so far, he's doing exactly what one would expect

a competent criminal defense lawyer to be doing in protecting his client's rights and making sure that due process runs its course. And really, we wouldn't want to have it any other way. You would not want to have a situation where there was a really spectacular trial and it was a one-sided match where the defendant really did not have a good lawyer. If in the event of a conviction, you want to have some degree of confidence that the trial was a truly adversarial contest between competent counsel and that each side was well represented so that you can have faith and confidence that whatever verdict is reached by a jury or whatever conclusion is reached in the event of a negotiated agreement, that it was done so and that both sides were well represented

so that we can believe and hope that there's justice in the case, whatever that looks like. This is Meredith calling from Chicago. I was wondering if you could elaborate a little bit more on what you meant when you said Irwin County's demographics were unique in Georgia and why that would make finding a jury in another county hard. Thank you very much. Love your show. Bye. Well, Irwin County is certainly unique in terms of demographics. It's a rural county, very rural county. In fact, as of the last census, the population was somewhere around 10,000 people in the whole county. It's an agricultural community primarily, and it's not situated on any interstate highways, for example. It's accessible by other well-traveled roads.

It's not like Tifton, which is very nearby that's situated right along Interstate 75, where it intersects with U.S. Highway 82. Tifton is a much larger city, and the county of Tift is much larger, and it's just next door. So Irwin County is very small. Everyone knows everyone, and in the event of a change of venue, the law requires the court to find a county that has at least somewhat similar demographics. And the fact that Irwin County is unique would make it somewhat difficult to find another county that is substantially similar in terms of demographics. Not necessarily impossible. There's a lot of rural counties in Georgia, not only in the south, but in the north part of the state and

in the central part of the state that likewise are not connected to major arteries such as an interstate highway. So it would not be impossible, but it would be a challenge to go through those potential counties and decide which one is the best fit. And in the event of a change of venue, the only thing different about the trial, it would be, one, the location. Obviously, it would be in the courthouse of whatever county the trial would be moved to. And the jury would come from the county where the trial takes place. So rather than having an Irwin County jury, you would have a jury from the new county that was selected after a change of venue. Now, the judge cannot change a venue unless the defendant asks for it, because he has a constitutional right under the state constitution in Georgia to be tried in the county where the crime is allegedly committed.

Hi, Payne and Phillip. My name is Donna from Hayhower, Georgia. I grew up in the Tift County area, so I followed the terror case since day one. I want to say thank you for doing a great job. I have a question. It's not actually about the case, but I'm curious, who reached out to who? Phillip, did you reach out to Payne? Payne, did you reach out to Phillip?

I just want to give you guys props because you do great on this. Thank you. Well, thank you, Donna, for listening, and thank you for asking that question. It's really kind of interesting. I am from Tifton myself, the South Georgia area, just like you, and I know Hay-Hara well also. I think it was Twitter, if I'm not mistaken, that is the vehicle that Payne and I first connected through. I followed the case because I was just interested in it. And I, you know, I used to live there. I used to work there. I was a police officer in

Osceola a long time ago, much before this happened. And so it's always been something that I've been interested in and I've kept up with. And I became a podcast fan of Up and Vanished. And I was a listener. And I was listening and paying very close attention. And then out of nowhere, of course, the news breaks of the arrest. And it occurs to me that the podcast might could benefit from my experience as a media analyst. I've worked for national and local media outlets, both in television and in radio,

and have some experience in providing legal analysis on complicated questions that sometimes the layperson may not be able to understand through traditional reporters and journalists. So I felt that maybe I had something to offer to Payne and to assist in some way. And it's my understanding that Payne had also heard something about me and was maybe trying to reach out. And so I believe, if I'm not mistaken, I followed him on Twitter and he noticed the follow and followed me back. And we were able to begin our initial dialogues through direct messages on Twitter. So there you have the backstory. Thank you for asking the question. So there you have the backstory.

Thank you for asking the question. Thanks for listening, everybody. Be sure to tune in Monday for case evidence. You'll be glad that you did. Today's episode was mixed and mastered by Resonate Recordings. They specialize in podcast editing and mixing. If you want to improve the quality of your podcast or start a podcast of your own, check them out at ResonateRecordings.com.