Up and Vanished - The Trial of Ryan Duke: Bonus Content - Nina Innsted and Phil Holloway Conversation

Episode Date: May 19, 2022

The Up and Vanished team is back on the ground in Ocilla for the highly anticipated trial of Ryan Duke. Enjoy this conversation between Nina Innsted and Phil Holloway discussing the highlights of the trial. For ad-free listening and for Payne’s exclusive Friday recap episode, subscribe to Tenderfoot+ on Apple Podcasts or visit www.tenderfootplus.com for more details. 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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I'm Eric Quintana. Thanks for listening to the Up and Vanished trial series, the trial of Ryan Duke. Today, we've got some bonus content for you. Nina Enstead and Philip Holloway sat down together to talk candidly about the Ryan Duke trial. It's a casual conversation, two people in the courthouse covering the trial, talking more openly about how the proceedings have gone and how the witnesses have been. Here's Nina and Phil. All right, Mr. Holloway, what do you got?

My goodness, what a day. Today was wild. You know, I've been part of, I don't know how many hundreds of trials, but, you know, I really don't know where to start. You know, today was, what, Tuesday or Monday of week two, right? Yes, the 16th. Yeah, and so the prosecution rested their case. The witnesses that they called before they rested were, you know,

I don't know that they moved the needle very much. And to be honest, after everything that happened today, I have to go back and, actually, I went back and looked through my Twitter feed because I was trying to live tweet as much as I could just to remember, you know, what happened from one hour to the next. But I tell you, skipping ahead a little, I've never seen, and we'll come back to this, but I've never seen a jury just bust out in laughter like we saw this afternoon. It was crazy. Crazy. He was crazy. Crazy. He was a great witness. You know, it's kind of like in My Cousin Vinny, right?

You've got, of course, it's a fictional movie, but, you know, you've got some witnesses, like, you know, you try to go after them on cross-examination, and they just come right back at you and make you look like like an idiot like if you when you try to cry and so that was you know i will just call him ryan's uncle he's not really an uncle he's the significant other of ryan's aunt but they've been together for so long they're basically you know uncle and nephew right so uh but he comes back at the prosecutor he's like you you know i've got a ninth grade education you got to talk to me normal you know and but that's the kind of stuff that

resonates you know with the jury absolutely yeah and he comes across as credible and uh you know he he talked in i'll say plain english but being from from South Georgia myself, I can say this. He spoke in plain South Georgia English. And that really, you know, resonated with the jury. But so starting out in the morning, you know, before they arrested, the prosecutor had to do as much as they could to prove that the to the extent they can that the bone fragments were in fact terrorists but i don't really think that much is in dispute but they flew a witness you know all the way in from texas uh basically franco yeah just to say that uh

they couldn't really get a whole lot of good DNA, but they could basically identify them as female. And the defense, if you remember, didn't have a whole lot of cross-examination. No. So those bones, we know they're human, we think they're female, but we don't know definitively that they belong to Tara. We don't know definitively in terms of DNA. But I would say that given the circumstantial evidence in the case, particularly that Ryan and Bo have both led investigators to the general area and said this is where we burned her, right? And then they had the GBI agent there. To me, it looked like what we call those divining rods where people have these. They were dowsing rods. Yeah, they point to water.

I mean, that was interesting, but, you know, it didn't move the needle. But I think, you know, I think we can say that those are her bones. I mean, what else would they be? So circumstantially, that's been established. Right, but legally, Tara is still a missing person. She has not been identified for legal purposes. And that became an issue when the state rested. There was the obligatory motion for directed verdict. In law, we have this idea of the corpus delecti, which is Latin, but it literally means the body of the crime. So if we're talking about a bounced check, the corpus delecti would be the actual document itself.

In a murder, the corpus delecti is typically the body. the body uh and so george's law basically is that you can't convict somebody on the uncorroborated confession alone there's actually a statute on the books and the reason the reason it's on the books is because our legislature long ago recognized the the fact that people do falsely confess now so you and i'm going to explain this as best I can. And it's kind of, honestly, it's a murky area of the law. But essentially, a confession doesn't have to be corroborated a lot. Slight corroboration is enough. light corroboration is enough.

But when it comes to a homicide case, the corpus delecti requires more corroboration. So, for example, the glove itself could ordinarily corroborate, you know, the statement and other things, but the corpus delecti, it consists of more than just, like, the body. It includes, like, the cause and manner of death. So we're talking about homicide. Well, we can't conclusively say, based on the evidence that's come out, that first off, you can't conclusively say it was her,

but circumstantially, assuming it's her, nobody could say that those bones were, if they're human bones, that that was a victim of a homicide, number one. And certainly you can't say what the mechanism of the death was, strangulation or whatever. Right. You can't say when she died. You can't say how she died. You can't say where she died. We have proved none of that. We've made some assumptions in court. We've speculated. But I don't think that anybody has been able to say Tara's manner of that. We've made some assumptions in court. We've speculated. But I don't think that anybody has been able to say Tara's manner of death, where she died, or when specifically. Was it 1130 on Saturday night? Was it sometime on Sunday? We don't know.

And that's why we've seen the defense, when they cross-examine these bone witnesses, they just ask some simple questions like that, you know, to kind of drive home that point. So what they're doing is they're laying the groundwork for their motion for directed verdict. And it's not that the confession or whatever you want to call it is not corroborated, because I think it is, but it's really this sub-part, this more obscure piece of Georgia law that requires additional corroboration regarding corpus delecti. And the judge ultimately denied that motion. But I honestly, I'm going to have to go back and think through this trial. And I'm going to have to think through through the evidence and I'm going to try,

I don't know that I agree with that ruling and I'm not sure that I disagree with it really either because it's really an obscure point of Georgia law. So I want to emphasize that Ashley Merchant really went for it with her lobbying, if you will, for the directed verdict that the state did not make their case, that they did not corroborate his confession. I mean, she was on fire. Yeah. Well, Ashley, among other things, is a really good appellate criminal lawyer. So she knows that in the event of a guilty verdict, this case is going to go up on appeal, right? Yes.

So she's got to make a really good record. And so everything that she said and everything that she filed in writing is all part of the court's record. And so she's preserving this issue potentially for the Georgia Supreme Court because that's where all murder convictions go on appeal is to the Supreme Court. Supreme Court because that's where all murder convictions go on appeal is to the Supreme Court. So she's preserving that issue for a potential appeal in the event of a conviction. Absolutely. Now, let's just take a step back.

I want to ask you as a non-lawyer. So if you're the elected chief judge in the circuit and and you got this case that's so like high profile um you know if if you grant that motion for directed verdict right and you throw out the the tara grinstead trial on what people oh that's a technicality you know yeah there's you know one person's technicality is another person's law, right? But that's a big ask to ask a judge to toss out this case. Now, people were asking in the group on Facebook, if he had thrown it out, could Ryan be retried? No.

A directed verdict of acquittal is an acquittal. So it's over. Yeah, it would be over on double jeopardy grounds. Okay. But he didn't, you know, so the jury's going to get to consider that. Now, what we still haven't heard, though, is there's still this lingering issue of statute of limitations on the other charges. Now, the burglary, disposing of a body. Aggravated assault. Aggravated assault, yeah.

There's a handful of non-murder charges that he still has hanging over him. And I think those charges are in deep trouble. We've heard a lot of pretty conclusive proof now, even in the state's case, like on day one, was it, right? Where the GBI admitted that they actually did sort of have this scenario in their file, and they just kind of overlooked it. And that started the clock ticking on statute of limitations. But I kind of thought we might hear some of that in the motion for directed verdict, and I was wrong. But then I remembered something when we were sitting in court.

I was actually doing a little legal research while I was trying to keep one eye on the truck you were also juggling a laptop yeah and and uh it turns out there there might be there's potentially some exceptions some things that would sort of maybe toll a statute of limitations from running and so i think that if i had to guess i would say the strategy is that maybe another defense witness or two might be called to try to sort of tie up any possibility of the state claiming that there's some exception and the statute hasn't run. So I'm certain we're still going to see an argument about this, a legal argument. But it's going to apparently come at the end of the defense case now. Well, and speaking of legal arguments, we heard Bo Duke's name in court quite a bit today, and there was talk of the defense wants to call him, the prosecution doesn't even want his name

brought up to the witnesses or the jury, and we learned that John Merchant is working on a motion to allow them to call Bo Dukes and let him plead the fifth. Yeah, well, so he was on, Bo was on the witness list for both sides, as for a potential witness. It's for a potential witness. And we saw that the district attorney has provided Judge Reinhart information from the lawyer who represents Bo Dukes. He says if he's called as a witness, he's going to take the fifth on everything. And so the prosecutor obviously wants to keep Bo out of this because, if nothing else, it creates a spectacle.

But look, so look at it like this, though. If you're the defense lawyer and you get Bo Duke's ass in the witness stand and you say, isn't it really true that you're the one that killed Tara? And he goes, on the advisory council, I take the fifth. That's great for the defense. They would love that. You've got your reasonable doubt. The merchants aren't expecting Bo Dukes to come in there and break down and confess. They want to hear him take the fifth, but they want it done in the presence of the jury.

And I think that's obviously from the defense. That's great. And normally that's what would happen. Right. That's great. And normally that's what would happen. Right. Now, the prosecutor has filed some kind of a motion, apparently, to prevent that from happening to basically keeping basically saying, look, if he's if he's got no relevant testimony, why are we bringingm an authorized gaming partner of the nba ready to shoot your shot we've made the bet mgm experience more immersive and fun for all types of basketball fans being on the sidelines is one thing this season experience basketball on the foul line exciting state-of-the-art live tracking technology and dozens of sportsbook selections

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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. Think of the last time you bought something to wear, something to decorate your house, something for your family or friends? What if each time you made a purchase, you got a little something back? With Rakuten, you can. You can earn cash back on just about anything you buy from over 750 stores. If you've ever bought electronics, home decor, fashion and beauty, or booked a trip, well, you could have got cash back. But don't worry, it's not too late. It's free and easy to use,

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Yes. Yeah, I knew that. Okay. That's just, well, I mean, they don't want him and Ryan in the same county jail. No, but he's being held one county over, which to me says they're looking at him being called in this case. Yeah, they did a production order. The judge has to, he's in the state prison system, but they have to do what's called a production order

where the local sheriff will go and basically borrow a prisoner from the state prison system. And so he's here. He's basically in the area available, but the prosecutor doesn't want him in the courtroom. No. And so John Merchant apparently, at the end of the day, the judge wanted to kind of talk about that. But this was a little bit of a surprise move, I think, by the prosecutors and the merchants just said,

look, judge, we want to be able to do some research. Give us until tomorrow to respond to this. Right. And the judge said, okay, fine. The judge kind of wanted to take it up today, but. Sounds like 830 tomorrow morning. Yeah, yeah. And I was on the drive over this afternoon.

I was thinking about that. And that will really completely alter the trajectory of this trial. Yes, it will. Because there's a lot of things that you could say are potentially reasonable doubt, but the merchants have an opportunity to basically get it across the goal line if Bo Dukes takes the stand and they make him look like... Yeah, the bad guy that he is. Well, and I've been sitting, like you were today,

10 feet from Ryan, and Ryan to me seems harmless. There's no malice resonating off of Ryan. And I have a feeling that if Bo Duke came into the courtroom, he's going to have a different aura and a different effect on the court than Ryan does. Well, you know, if he comes in the courtroom, then the question is, does the prosecutor ask the judge to put him in street clothes or something like that? Because, you know, Ryan's wearing a suit.

You can't have a criminal defendant on trial in jail clothes. Right. But you can have a witness testify in jail clothes. But that could be prejudicial. So, you know, that's the whole point. Of course. You always want to prejudice the other side's case. So the merchants would want him brought in in shackles, leather, an orange jumpsuit, and the whole nine yards.

And, you know, so that would be quite the spectacle it would make for certainly great television you know just the visual of it alone but the DA is pulling out all the stops to keep Bo out of the courtroom it's all and it's the same day it's the same pair of prosecutors that put him in prison for 25 it's almost like they're acting as his advocate now, which is kind of weird. Well, and speaking of the prosecution today, we saw some fired up J.D. Hart and fired up Brad Rigby. Brad was almost yelling, and we'll get to it later, but Brad was almost yelling at a couple of witnesses today. I'm sure he was under the guise of speaking loud and clear for the court.

I'm sure he was under the guise of speaking loud and clear for the court. But Ashley called a psychologist to the stand, Talitsky, and J.D. was animated in her cross-examination of him. Yeah. So we're now moving into the defense case, right? So their first witness was their, let let's face it the judge wouldn't let him be referred to as a false confession witness but that's what he was and he is an expert in the field of false and the prosecution fought having him listed as an expert witness they fought tooth and nail everything they've had pre-trial hearings on this to get preached and the judge is not a fan of false confession theory uh i understand it it seems almost like he thinks that it's cockamamie bullshit uh but he's he's not wrong where see

there are certain things that you know that are said to invade the province of the jury and that go to the ultimate issue of guilt or not. And so sometimes expert witnesses, the courts say, well, you can't quite go that far with this opinion testimony. So the judge, he's not legally wrong necessarily, but let's face it. J.D. Hart went after this on cross-examination. She went after him hard. She did. Ashley's direct was real short, a lot shorter than I thought, because she was operating under some serious constraints that the judge had her under for what she could and couldn't get into. Yes. So then

comes J.D., right? And she couldn't help herself, but she really aggressively. It was. And with like righteous indignation was cross-examining this man and he was just sitting there he was he's he's calm yeah he was very um polite and respectful but she was like just going after him and and she kicked the door wide open to because she got him talking about the the reed uh technique of police interviews right and and when she did that, you and I were sitting there next to each other. I think I sent you a text. I'm like, yeah, and she just kicked the door wide open. Yes, she did.

And I could see the merchants kind of at their table, and I'm like, yeah, they saw it too. They did. And so they were able to get into a lot more with him after the prosecutor kind of went a little too far in cross-examination. Well, but the judge made Ashley mock question him while the jury was out of the room, and then they brought the jury in and did it all over again. Well, so that was smart, I think, on Ashley's part. Yes.

We call that a proffer. I think, on Ashley's part. Yes. We call that a profit. So the way it would, let's just say the judge had said, okay, he's not going to be allowed to say any of this stuff. Right. Well, in the event of a conviction in the appeal, unless you have the actual testimony taken down by the court reporter in the record, then the Court of Appeals doesn't even know what it is they're being asked.

And so you have to take the testimony outside the presence of the jury anyway and ashley said look judge why don't you just let him tell you yes because he can explain it better than me and he was he was a good witness he did not get flustered even though i think i think a lot of people would have gotten flustered the way that jd approaching him. He took his time. He said, now, is this what you're asking me? Because he wanted to answer the question and not go off on a tangent as opposed to what she was actually looking for. We're in the hotel bar here and we're having a couple of sodas. Well, it might have refreshments. It might be a hard soda, but in a minute I'm going to have to get another one because it was just one of those days.

But look, the proffer went really well. And I don't know if you picked up on this, but Judge Reinhart was literally like up on his elbows, was like listening very intently to this man. And it was almost like you could see that the judge was being open-minded. Yes. psychologist and he's trained and you know he can he can talk more now about the specific things that he saw that were problematic with this specific interview i'm not gonna let him talk about false confessions in general but let's face it that's what they did it is so they so they were able to essentially get in their false confession witness, I think probably 95% of everything they wanted, simply because the prosecutor's cross-examination went too far.

Yes, it did. So that took most of the, I mean, I'd say that was by far the longest witness. Yeah, he took up a big chunk of this afternoon. You know, and a lot of that was the prosecutor. You know, and a lot of that was the prosecutor. I tried to watch the jury because when you cross-examine a witness, how you do it is almost as important, if not sometimes more important, than, like, what you say, right?

Yeah. So your style and your demeanor, the jury doesn't like to see you attack a likable witness no and he was a likable man he was he was he i felt like he came came across as almost gentle and they wanted to make a big deal about you know he's like a hired gun for these defense sleazy defense lawyers and ashley pointed out with some of her later questioning that look you know um he works for department of family and children's he gets appointed by judges yeah to do evaluations psychological evaluations on uh on in juvenile court for troubled kids and this that and so you know and he he was really good too because, because this is not his first rodeo either, right?

So he made it a point to say, look, you know, I would, yeah, I was brought into this case by the defense, but I told him going into it that I can't guarantee you a result. I find what I find. And I can tell you in my own experience as a practicing criminal lawyer, when I was a prosecutor, we had to do it this way. And it's the same thing as defense. If you need an expert and you talk to one, maybe that expert doesn't give you what you're hoping for. So you don't use that.

Right, use a different one. Right. So you just you don't use that. But, you know, he he said, look, I told him going into this that my opinions are going to be my opinions, whether you like them or not. Yeah, he was candid. And that's how a reputable expert witness works. Yes. So he came across to me as really strong. I agree. I agree. Little it seemed to go, you know, sitting in court, his testimony seemed to go on maybe a little longer than it needed to,

but I think it was important to get in from him what they got. The merchants were just sitting there letting her, giving her enough rope. Yep. You know, and she asked, I knew when she started getting into the reed technique, the judge didn't apparently know a lot about the Reed technique, but he got an education. I learned. You know, and Reed is frowned upon, at least in my view. I mean, we've talked about this before, but he made it a point to emphasize things without criticizing the Reed technique by name. He pointed out to the jury that it's better to ask open-ended questions than to ask leading

questions that would suggest an answer. Especially when we're talking about our guilty knowledge subjects like the phone call, the glove, how was Tara struck, the things that some people think that Shadel was fed by Bo Duke, Bo Duke's. Yeah, and he had already testified that based on his assessment of Ryan, that his personality type was one, like he's not necessarily the type to kind of push back. He's more of like, you know. A people pleaser.

He's a pleaser, not a debater, right? Right, and he's anxious. And he's got, yeah. And then he also talked about how people who have taken a lot of drugs but who are addicts with a high tolerance can still appear to be functional, but those drugs still have some effect on their... But their body is so adjusted to the dosage of the medication that it affects them differently. I don't know how much the defense is going to, like,

I think that that's sort of a piece of this, but I don't think the defense is really going to argue to the jury all that strongly that he did this because he was high. I think that's just one small piece of it. Well, the confession being because he was high, and I want to go on to the witnesses that followed him. We had Billy Bars come in briefly to look at that front door again and enter some new pictures. Well, not enter new pictures into evidence. Were they new?

Well, I think so. And honestly, where we were sitting, I couldn't see it all that well. So this picture that they entered in showed her front door, and it showed the deadbolt that can only be locked and unlocked from the inside. Right, and when we saw the state's case in chief, we saw this lock on the door, but it wasn't the best picture in the world. Agreed. And I remember thinking, well, I wish I had a better view of that. But there was a photo with a better view.

Yes. And you don't, here's the thing. You don't, in order to get a picture into evidence, you don't have to have the photographer. You just have to have someone who can say that this is a fair and accurate representation of what it looked like at the time. Which is what Bars came back in for today. And Bars was an Osceola police officer at the time. He was not GBI. But over the break yesterday, they did their homework,

and they contacted Bars, and they said, hey, you know, and Bars was like, yeah, I can identify that. And he was on the stand for maybe two minutes. Yeah, and the only reason they called him was to, I think that during the trial, this all this it always happens to the lawyers like as the trial goes yeah through its course yeah you know you realize okay maybe we need to go back and clean this up a little bit yeah and so that's what I have some loose ends that's what they were doing they were

I'm sure getting feedback from people that are watching the trial um you know they have their paralegal in court they're they talk with each other after hours um and um and at night and so they realize that hey we really need to hammer home that this whole you know getting in the door with a credit card doesn't make sense. And I want to say, as someone who's been sitting in court for the past two and a half weeks, I did not realize what kind of bolt was on the door. I thought it was one of those flip latches like you see at a hotel. It's a deadbolt like you see at a hotel where there's no access to the bolt from the outside, only the inside.

Yeah. And I think that was a huge point that needed to be understood yes I agree can we can anybody say that at the you know if she was killed in that house and that isn't it can anybody say that she absolutely had both locks no we can't but we've already heard that that was sort of her typical practice. It was. She was safety conscious. Yeah. And so I think the jury was probably thinking in all likelihood she bolted that lock. And there ain't no way you're going to defeat that with a credit card. Oh, and by the way, the expert witness did a good job of using that as an example.

Like the agent Shadel is the one who introduced the credit card into the conversation. Yes. That was not something that Ryan just sort of blurted out. It was an idea that originated with the investigator. Yes, and I've seen people asking, you know, Ryan was such a sad sack in 2005. Did he even have a credit card? And I think that's a fair question. They asked Shadel on cross, you know, did you even run a credit report to see if he had credit?

I doubt it. I doubt it, too. I would be quite, I mean, it was in evidence that he didn't have a driver's license. Yeah, so it's. So if you don't have a driver's license, you it's so if you don't have a driver's license you don't have a credit card what do you use them unless you're staying here at this hotel that uses you know yeah a key card key cards but i don't know how common those were well he lived in the trailer okay i didn't know yeah so he probably wasn't checking into a lot of he probably didn't have a he probably didn't have a library card. No, I wouldn't imagine.

So our next two witnesses were Tara's neighbors from 2005. We had a Mr. Harper and a Mr. Olmstead. And they provided some interesting testimony about Tara's vehicle. And for those of you who don't know, Tara drove a very distinctive Mitsubishi 3000. It was a white sports car, and it's not something you'd see a lot of in rural Georgia. No, you don't. And it stood out and people knew that car. And so if you go back to opening statements, Ashley Merchant told the jury that that car wasn't there. She did. At the time, the state alleges she was killed in that house and so they they called these two guys that lived across the street and by the way i i drove past today on the way back from the courthouse i

drove past the house where tara had lived and i wanted to see it but i also wanted to see what kind of view of the garage those guys would have had from across and it's and that what they said in court was true it's like that we had a very clear view of that garage and they did and and they both they both said that they were sure that you know that saturday morning that the car wasn't there sunday morning sunday morning sorry yeah sunday morning the car wasn't there they got up and went to the the corner store which was his habit on the weekend and then later in the day, they went to Wendy's to grab dinner, as one does. And when they came back from Wendy's, it was dusk. It was 5.30, 6, 7 o'clock.

The car was back. You know what I want to know? Where was that Wendy's today when we needed it at lunchtime? I did not know there was limited places to eat in Osceola. I did not know there was limited places to eat in Osceola. But anyway, you know, they were, the prosecutors cross-examined them, but their style was very different. Yes. They didn't get aggressive with these guys. They tried to point out that, well, your memory today might be a little different than it was when you talked to the GBI in 2005 or 2006.

But they had their statements from 2005, 2006 to refresh their memory, which is what they did with previous witnesses. Yeah. So they quibbled with them, and they may have made some dents around the edges of their testimony, but when you have both of these guys saying basically the same thing, you know. Yeah, and these guys are citizens. They're working.

They're, you know, regular guys that happen to be roommates that lived across the street from Tara. It was funny because they asked one of them, it was like, well, how old were you in 2005? And he couldn't see the way, like, what I wanted him to say, I wanted him to say, well, you didn't tell me there was going to be math on this quiz. But, you know, but they were basically trying to point out that it was 17 years ago. Right. Right. And they were in their early 20s.

And memories fade. And memories do fade. And I think I put this out on Twitter that this is an example of why it can be so hard, you know, to try cases that are this old. Yes, cold cases that are almost two decades old. Some witnesses go away. Some pass away. Some die. Mrs. Fortier is a prime example.

We would love to hear from her. She's still alive, but she's in a memory care. Yeah, she's not well. Where you had lunch today was next to Mr. Fortier's office, wasn't it? You know, I saw it said the Fortier Agency. And I thought, I asked myself, I was like, you know, is that his office? And I think it probably was. Could be.

Because he said he's still working. Yeah. I mean, that's just how small this town is. It is. And then we had, let's see. Then we had Jerry Williams. Oh, my gosh. He was a treasure after a long day.

I want to, before I tell you what I think about him, I want you to say what you, first off, who was he and what did he mean? So Jerry Williams was, follow me here, he's Ryan's father's sister. So Ryan's paternal aunt's significant other. When they asked you all married, no, we're not married. He was the owner of the trailer where Ryan was living in 2005. And Ryan lived there with his brother and his father, who had just taken a job in Alabama. So his dad was sort of back and forth. A bunch of people packed in there.

A bunch of people packed in there. Then we find out that this uncle went over there to fix the air conditioning unit and found out that Bo and Ben... And the prosecution was really hell-bent on keeping this out, but apparently Bo was causing problems with the neighbors. There were noise issues and other issues. So he was over there to fix the air conditioning and maybe kick a little ass. Well, he went over there to kick Bo out. Yep.

Bo was, he found out that Bo had been, like, I think a few days, maybe a week before, he found out Bo had been staying over there, and he's like, I don't want Bo over there. No, and he was causing problems for other tenants. So he goes over there, and there's apparently some kind of an altercation, verbal altercation or whatever, between, let's just call him Jerry, the step- uncle guy. And Bo, there appeared to be

a heated argument, but the prosecutor was trying to keep that piece of it out. And Bo and Ben ended up leaving the scene in a black pickup truck. Yeah, and we did a podcast episode in season one called The Black... I think the name of it was The Black

Truck or something along those lines. And that's all i could think about and and so so wait wait i just want no no i want listeners to understand it's somewhere between 8 45 and 10 30 on saturday night yeah sometime before midnight yeah but probably closer to 9 45 ish. And Jerry tells Bo to get out, take Ben with him, and these two leave that trailer in a black pickup truck. And if you're wondering where Ryan is at this point, he is literally passed out next to the toilet in the bathroom. Jerry even says he goes in and picks him up by the hair and drops him. He said his words were, he was out.

He was out. He was out. He wanted to check and make sure he was still breathing when he was so out. Yeah. So that's where Ryan was at 945 on Saturday night, whereas Bo and Ben are taking off in a black pickup. And I think he testified that it was around 1030 or 11 that Bo finally left in that black truck, right? Yeah, but the next witness backed that time up a little bit, which is why I'm more comfortable with like 945. In any event, we're talking about

Ben and Bo particularly with Bo being in an agitated state. Yep, he's got his back up. He's mad. I think the word, he bowed up on me. Yep, that's what he said. And that's literally hours before they say that Tara was killed in the middle of the night.

Yeah. And I'm thinking to myself, you know, I wonder if, I wonder if in season one of Up and Vanished, if it wasn't much closer to the, some of these theories that were explored maybe were more closer to the truth than what we maybe later were led to believe by prosecutors and cops because both if you believe those two but go because the next witness by the way was the the aunt right who was linda who jerry's lady jerry's lady yeah and she got into it with jd hart too a little bit and, no. She was cross-examined by Rigby, who was literally shouting at her.

And I'm sure he was shouting at her, making air quotes, under the guise of being loud enough for the courtroom. But I was uncomfortable listening to him question her because he was so loud. There was an edge to his voice. But she made a point to tell him in no uncertain terms that, no, I was standing right outside the door. I heard the whole thing.

Yep, she heard everything. So there was a verbal altercation. And so he, Bo leaves mad with Ben, and he's in a black truck. Yep. And Ryan, meanwhile, is dead to the world. Almost literally dead. In an extremely inebriating state. And his brother, Ryan's brother, was asleep.

He said, but they both said they didn't see Stephen. Is that his name? Yes. They didn't see Stephen. He was asleep. And Ryan is literally passed out face down next to the toilet. J.D. Hart, the prosecutor, she tried her best to keep these witnesses from testifying because

she... So the merchants filed what's called a notice of alibi. And towards the law, if you're going to claim alibi at trial, you can't ambush the prosecutor. You've got to tell them basically where your client

was, at what time, and who can corroborate it, and who the witnesses would be and all this. And so when Jerry first started testifying, J.D. wanted to have a sidebar conference. And she was basically saying, look, they're basically using this person as an alibi witness. They didn't list him as an alibi witness. He's on their witness list. But Ashley's like, we're not saying, this is the 22nd. This is before midnight. Right.

We're saying the 23rd is the relevant day, which is just a few hours later. Yep. And the judge is like, you could just see him rolling his eyes like, why are you objecting to this? He's clearly not calling him as an alibi witness. Well, and when you were a younger man, did you ever get just really, really wrecked and end up on the bathroom floor? Can I take the fifth? You can take the fifth.

I've taken the fifth. I ended up there. Yes. I remember one time, I don't think it was a bathroom floor, but it was the front yard of a fraternity house. And about, you know, in a similar condition. Yes. Were you well enough to get up and drive and jimmy a door? No.

Hell no. No. No. No, the idea of just getting into bed seemed overwhelming. Yeah. Yeah. And so the idea that he's going to be able to... 90 minutes later.

Get into some kind of a vehicle. Oh, steal the truck of Bo's that wasn't there. Yeah, the black truck that's already left. In the confession, he's like, well, Bo was asleep, and I went and got his keys out of his pocket, and I took his truck. Yeah, I don't think Bo was going to turn around and come back, not when Jerry was puffed up going, get out of here, kid. Right. He's not coming back for more of that.

So because Stephen cannot definitively say, you know, I saw. Because he was passed out. Because they were all asleep, right? So it's an alibi, but it's an imperfect alibi. It is. So they were trying to sort of corroborate this a little bit by these people saying

they saw Bo drive off in a heated state sometime before midnight. A couple hours before midnight. Well, and Ryan was in no condition to break into anything. Yeah. And Ryan has said repeatedly he does not know how he got, he doesn't remember how he got to an house. How do you steal the keys out of somebody's pants pocket

who's already driven off in the truck? Right. And if Bo came back to that house, he was not taking off his pants. house he was not taking off his pants so this leads us to what's coming next and we still haven't heard from steven who's the correct the brother of ryan yes and and steven has been when he was allowed in the courtroom very attentive to his brother he's been you know you know, a support, and they're in court until they asked him, they said, look, you can't be here because you're going to testify. And he was very nicely asked to leave.

Didn't he testify, though, in Bo's trial? I don't know. I need to go back and look at that. But he's clearly given statements to the, they know what he's going to say. Yeah. I mean, and it doesn't take a super genius to figure out that he's not going to be able to say, I was curled up in the same bed and watching my brother sleep.

He's not him. So he's not that kind of rock-solid alibi. Right. But being able to bring in these aunt and uncle, so to speak, to say that they watched Bo drive off mad in the black truck, that's huge. It is. It is. And I think that Ryan was that inebriated that early on Saturday night. It makes it, to me, I couldn't see him leaving the house and going and doing anything remotely organized.

No, not if you believe Aunt and Uncle. Oh, let's go back to Jerry for a minute. Oh, Jerry was great. He had the jury laughing out loud. He had the whole courtroom laughing. I mean, I had my hand over my face. The judge was laughing. Yeah, I mean, I didn't want to be disrespectful in the courtroom,

but oh my goodness, he was a riot. He was not taking anything from J.D. He used a little profanity on the witness stand. Oh, he did. And the judge didn't even admonish him. No, no. Because that's just how he is. Yeah.

He's just being himself, right? Yeah, you know, he reminded me of that kid in your class when you're in middle school that's just always got the last word. Uh-huh. And that's who he reminded me of. He kept getting the last the last word in on jd and she was just getting madder and madder and more you know and she even said you're you're you know i don't know she referred to linda but it was basically y'all talked about me no we haven't y'all y'all she doesn't like me she said no she hasn't i mean it was he was not giving her an inch and so did you notice that when he when they finally decided that they weren't gonna have their perry mason moment with him they let him leave uh and on the way out he he was literally

walking off the witness stand out of the courtroom walking in front of the jury, and he said something to the jury. Yeah, he was like, did y'all hear me? Yeah, I mean, it's like, I've never seen that happen. No. And the judge didn't get mad either. Jerry was a bright spot in today's court. You don't, I have never in my life seen a jury laugh like that in a serious murder trial. And it was truly a remarkable moment.

It was. What it means in the end remains to be seen. Sure. But it was certainly noteworthy and makes me wonder what's coming the rest of the week. What do you think? You know, I think the big question is, will Bo be called?

Will they allow him to be called into court? I think that's, and honestly, I think that's what listeners want to know, too. But we have to take a wait-and-see approach because it all depends. Mr. Merchant's got the brief that he's working on. Yeah, I'm sure that, you know, we're sitting here having a beer right now but they're they're back the lawyers are working on this um trying to figure out how they can convince the judge to because the judge seemed like my read of him was that he was on the fence on this he doesn't really know what to do yeah um well i want to i know what i would do but i don't know what he's going to do

I want to emphasize we cover the case we're paying attention all day in court trying to live tweet and be active in the group and keep listeners informed and it's exhausting I can't imagine being one of the lawyers because our day ends

and we get to come sit in the hotel bar and have a drink they're still working they're scarfing down some dinner Because our day ends and we get to come sit in the hotel bar and have a drink. They're still working. They're scarfing down some dinner and working on motions and witness lists and witness prep. Talking to their client. Talking to their client. At the jail.

Yeah, I mean, it's crazy. The amount of work, it's exhausting. And they're doing it all for for free it's crazy it's just so are they doing it for free or are they getting like a stipend from the state no i to my knowledge it's all wow all donated time and effort now um evan gibbs right he's yeah the third the local boy yeah he's local yeah now he's with a big firm and i forget which one don't put me on the spot but some of these larger firms like you find in the big cities like Atlanta, they actually have lawyers who are on the payroll.

They get paid a regular lawyer salary, and they do pro bono work. Smaller firms, particularly maybe like mine or maybe like a husband and wife team like the Merck's, it's hard enough for me to come down here for a few days and try to manage my practice, too. They're having to put everything on hold. Right, and they've got a whole team down here. They've got their paralegal here. I don't know who's answering the phone, if anybody, at their office right now. Like I said to Brad today, this is good TV.

When Jerry was on the stand, that's good TV. It's hard in a podcast format to really describe that. And I know that people that listen to this are going to go and find it on YouTube. And I hope they do because that's, and even that though, even watching the replay of it on YouTube is not going to give you the full flavor of the moment. No, you're not going to hear the people giggling in the row behind you in court. I was, I did my best to try to look at the jury today

and see how they were responding. And at certain points, some of them looked like they were half asleep, particularly when, when some of the technical stuff was coming in through the prosecutor. There was a listener in the audience in court today and she's middle school teacher. And she said that juror looks like he's sleeping. His head was in his lap.

Yeah. And I said, Oh, I don't know. And she said, I teach middle school. I know he was sleeping. He had his head.

I couldn't see him. He was in the back. JD for me. Yeah. He was in the back and he was, he was asleep. I'm asleep. He had his head locked. I couldn't see him. He was like right behind JD for me. Yeah, he was in the back and he was hunched over. I wanted to see the top of his head because it's almost like he was, if he was sitting at a desk, it's almost like he had his head down on the desk. Yeah. Yeah, and that's not cool. But when Jerry was testifying, everybody was cheering him.

Everybody was alert. Jerry was a treat. Even the judge was laughing. That was just something truly special. The prosecution was not laughing. They were not amused. No. Well, here's what it is.

They want to accuse Aunt Knuckle of coming in and saying, well, you never told this to law enforcement. And the aunt says, oh, yes, we did. And they're like, you did? Who'd you tell? That lady right there. And they pointed to Ashley. And of course she's not law enforcement. But look, these are

salt of the earth people. You know, she said, well, I thought she was an important person in the case that needed to know. And she's not wrong. And she's not wrong. Right. And so that was, it was, it was, the prosecutor was making a big deal out of semantics. And, and, you know, the jury's not stupid. They know that witnesses talk to the lawyers before court. Of course. It doesn't mean that the lawyers are telling them what to say. No, no. There's a difference between prepping a witness and turning a witness, if you will. Yeah, you don't tell them what to say. No.

And these individuals, so they cross-examine them on, you know, you never came forward and talked about this to any police officer, did you? Well, the other side of that coin is also true. The police have resources. They have phones. They have cars. They have recording devices, and they have pens and papers, and they can go and talk to... Those recording devices aren't very good. But they can go talk to witnesses too. Yes, and they should have spoken to the last people to see Ryan

before this murder occurred. And they didn't. No. They didn't talk to him, right? No, and you know what? As a missing persons advocate, I work with a lot of families, and there are people who don't want

to talk to the police for whatever reason. They're not going to volunteer information to the police. They're not comfortable. They're not going to volunteer information to the police. They're not comfortable. They're not going to do it. So the police need to be alert and focused and seek these people out that need to be talked to. So in a case like this when so much is at stake and what we really want is a fair trial but we also want to know the truth. Yes. Should it be the defense lawyer who has to go out and seek additional witnesses with relevant information? Is it, or, you know, and I understand, I mean, as one myself,

sometimes we have to, but it sucks that it comes to that because you're like somebody else should have already talked to them. Yes, I agree that somebody else should have already talked to them. Yes, I agree that somebody else should have spoken to them first. You know, this is the largest file in GBI history, but they didn't manage to talk to Ryan's aunt and uncle

who owned the home he was living in. Yeah, you didn't talk to the person that owned the trailer that he and Bo Dukes were... They've been described in the past as roommates, but it sounded more like Bo was more of like a, he was crashing on the sofa. Yeah, he was crashing on the couch.

Yeah, he was a squatter. Yeah, I think squatter is a good word for Bo. Yeah, I, my daddy was a defense attorney, and he had to chase people down sometimes. But no, it's not. This case went on for 17 years. They've had 17 years to talk to these witnesses. And they didn't. And we all can go back to the very first day of testimony with Chief Billy said,

Did you have a report of a burned body at Fitzgerald Farms in November of 2005? Yes, we did. And I think we're going to hear more about that. Because yesterday, I'm getting my days confused. Last week, I guess it was, there was talk about potential Zoom witnesses. Yes. And I was looking over the witness list, and there's an investigator that now I think lives in Alabama that was one of the ones that was involved in this, let's just call it a search of the pecan orchard. The grid search?

Yeah. with Chief Deputy Nelson Paul. And so I think we're going to hear more from some law enforcement types, but they're going to be called as defense witnesses to provide a little bit more flavor and context to this that the GBI has now admitted, but the prosecutor, of course, didn't. They didn't want to dwell on it. So the defense is going to dwell on it a little bit more.

Yeah. Well, and the defense needs to, they're building their reasonable doubt. That is their job right now. But if Bo doesn't get to come in and take the fifth in the presence of the jury, that could be a game changer. I agree. that could be a game changer i agree so if you'd ask me to like this morning you know if i had to handicap it if i had to guess right then who's winning and who's losing i'd say i'd give the edge to the defense to be honest with you and then certainly after their expert was able to get in a

lot more than they had i think thought that he was going to be able to get into I would say that the defense would have the edge in terms of reasonable doubt but I was when I when I've had that thought I was thinking that they would have Bo coming in today or tomorrow and shackles you know and having him take the fifth in the presence of the jury so So if that doesn't happen, then that's a huge blow to their defense strategy. So then the question comes, so maybe they're thinking they weren't going to put Ryan up as a witness, but that if the judge throws them that curveball and says, okay, I'm not going to let you bring Vogue in here, do you then, okay, well, then maybe we have to rethink putting Ryan up? I don't know if I would want Brad Rigby or J.D. Hart to have a swing at Ryan.

I think that's a gamble. Really? Yeah. So I don't know that I necessarily, I don't disagree with what you said, but I think there's another way to look at it. If I had to guess, I would say the cross-examiner would be J.D. Okay. And if what we saw with the expert witness was any indication of her style,

Yeah. we're going to see that. Yes, you would see it again with Ryan. If she cross-examines Ryan. Yeah. We're going to see that. Yes, you would see it again with Ryan. If she crosses in with Ryan. Yeah.

Rigby's louder, but he's a little bit more of a technician, right? And J.D. goes real fast, and she sometimes doesn't let witnesses finish their answer. And they're talking over each other. Yeah. But we haven't heard him say much, anything really, but we've seen him in court a bunch. And Ryan is composed and he's calm. He looks polite. He looks gentlemanly.

He does. He's not the right man. Yeah. and if he takes a stand and if he's got a believable and plausible reason for telling the GBI something that wasn't true. Right. He could be a good witness. I just worry about him going up against that cross-examination worries me. Oh, of course it does.

And if you're the defense lawyer, you're just like, just biting your nails. You know, I have to say, I didn't come into this court, I did not come into this trial with any preconceived notions of who did it or who didn't do it. I heard Ryan did it. I heard Bo did it. I heard they did it together. I heard one did it and the other one didn't. So I came in real open-minded and I have not seen a smoking gun in this case. I have not seen anything that made me look at Ryan and go, oh my God, he did it. So I'm, I'm feeling very open-minded and very optimistic for the defense. I've won a case before that I tried where there was, I've won a case before that I tried where there was, I think it was three different conversations with police that were characterized as confessions. And the jury just didn't believe the, they just didn't, they didn't believe it.

And they didn't, the officer didn't come across as credible. Right. come across as credible right and and the story that i was told i didn't see this but i was told that the prosecutor after the not guilty where he went back to his office was like throwing the file around saying i can't get a confession i mean when i got three confessions if i can't get a conviction what i just need to quit you know um so you know they clearly can get frustrated and if jd is the cross examiner and we see that style, that some people like it, but it's off-putting to other people. Yeah, there's been real mixed reviews of J.D. in the Up and Vanished discussion group on Facebook. Real mixed reviews. I don't mind her, but there's a lot of people that have strong feelings about her.

strong feelings about her? Well, she's had advanced trial advocacy training, that much is obvious just from me watching her. But honestly, as a lawyer looking at this, it has reminded me that just because you can go after somebody in a certain way doesn't mean you always should. Agreed. And sometimes less is more. Have you noticed how many objections she makes compared to the defense?

Oh, yeah. The prosecution is constantly objecting. Constantly. objecting constantly in interrupting the flow and today i noticed in the middle of what was a really good point by the defense brad just happened to drop a folder on the floor so everybody got distracted and looked over and i'm not saying that that was malfeasance of any kind but it was seemed like a coincidence they were in the middle of making a really solid point in the case, and he's dropping stuff on the floor. Well, and, you know, you do wonder if that was legit or not. It's kind of like when the football team is out of timeouts and somebody rolls their ankle.

Oh, maybe, yeah. Oh, you know, then the clock gets us. Yeah, so maybe it was a strategic folder dropping. I don't know. But in my experience, juries want to know everything. They don't like being left out. To a certain extent, they understand that there are some things that have to happen outside their presence. But there's a point when it's too much. Well, and we're nosy.

By nature, people are nosy by nature people are nosy we want to know and and like you go back to the you know the way they played the confession like we talked about where you start stop start yep and muting it and the jury has got to be saying what in the hell are they hiding from us right and i still want to know what happens when the jury wants to watch that confession in the jury room as they're trying to reach a verdict? Well, they're probably going to have to make do with the transcript. No, I think they're not going to get that either. There's something called a continuing witness rule.

Basically, things like that don't always get to go back with the jury. What would have to happen is they'd have to come back in the courtroom and they'd have to do it all over again in the courtroom. With the judge on the bench over again in the courtroom okay with the judge on the bench and everybody in the room and and then once that's over then they then they can go back and they go back and continue to live rating so it's not because you don't want to send them back in the jury room with an audio or a video or a transcript like that because the judge wants them to consider all of the evidence together and not focus on one piece of it right okay that makes sense um but we have got we've got a barn

burner and tomorrow is going to be very interesting to see which of the two dukes duke or dukes either one whether either one of them is going to be a witness in the case. Right. You know, I really want to see Bo Dukes and Ryan Duke in the courtroom at the same time. I do too. I think that would be amazing. I think that would be amazing. Any final thoughts before we wrap up?

I got to tell you, I got to tell you, for a trial of this significance, I think that the sloppiness of some of the police work along the way has really um been more than i i knew we were going to see some anybody who's followed this case knew that yeah but i was kind of taken aback by by how much stuff was never really followed up on things that could have been done better. And, you know, the links to which these prosecutors are going to obscure things, and even though they were questioned about this and they were selected by both sides as being a fair and impartial, these are still local people. Yes, they are. And we got into some testimony today about the rumors that were going around town. by both sides as being a fair and impartial these are still local people yes they are and

we got into some testimony today about the rumors that were going around town these people aren't they they know i mean yeah they've heard the rumors i'm sure and you know you got to wonder if any of them have have any preconceived notions about well now the judge asked about preconceived notions and and you know bias and they all said that they could put that aside just do what they were you know but their decision but can they i should hope so i mean that's the foundation of our justice system you would hope you would hope so but i do but also there's human nature of course and uh so if you ask me sort of in the abstract, okay, can you set aside any preconceived notions and leave any biases that you might have outside the courtroom and make your decision just based on what you hear in the courtroom? Oh, yeah, judge, I'd like to think I can do that, right?

Right. But then when it comes down to it and you're actually in the jury room. It's a different story and you're like you know the judge told me reasonable down and i just can't get this spidey sense that keeps going off in the back of my head and all these things that i've heard about bo dukes through the years you know you just wonder if if in fact they really can so it sounds like you think the bias would be against Bo and maybe favor Ryan a little bit. Maybe work out a little bit if there's bias.

It might work out a little bit in Ryan's favor. I don't know. If there's bias, I don't know how it could be any other bias. Okay. For all the reasons we've been talking about. I mean, they tried to make a big deal about, you know, today about Ryan having a DUI. Yeah, they did. But that's not proof of murder.

And it was a, I mean, nobody's an advocate of driving under the influence. But for heaven's sake, it's a misdemeanor that happened years and years and years ago. And it's just not probative of much of anything. Right. Bad judgment. Yeah, it's, I mean, you know, it's like something that, I thank God every day that nobody holds things against me that I did 25, 30 years ago. And so I think that it struck me as a little bit silly to try to make a big stink of that.

Because the question was asked by the merchants, you know, is Ryan a peaceable person? Is he a violent person? That kind of thing. His aunt was pretty glowing. She seems to really love her nephew. In Georgia, good character is always admissible as substantive evidence of innocence, basically. And so when you

ask a witness, you know, does the defendant have good character? Are they a violent person? That kind of stuff. Then they can come in and cross-examine with these specific instances. Wasn't it true he got a DUI? That kind of stuff. Right. Then they can come in and cross-examine with these specific instances. Wasn't it true he got a DUI?

Well, big whoop. Right. I mean. That's bad judgment. It doesn't mean he's mean. Right. Or violent. Right.

And it's just, you know, and you wonder, I guarantee you there's somebody on that jury that's either themselves had a DUI or they've got a. Their kid. Their kid, their spouse. Their kid or somebody, a close friend. Yeah. You know, I've represented doctors and lawyers and pilots and teachers and priests, pastors, all who get DUIs. We are not pro-DUI, but it happens. Yeah, and so my point being is that on that jury, there's somebody thinking to themselves, really?

You're going to make a big deal about this really, really old DUI? Right. I mean, come on. Yeah. Well, it's going to be interesting to see what happens in court this week. I'm looking forward to the defense resting and seeing the case go to the jury. Me too. And I think we're going to see that tomorrow or the next day, maybe?

Yeah, Tuesday, maybe Wednesday. Maybe, yeah. That would be nice. All right, I'm going to wrap that tomorrow or the next day maybe. Yeah, Tuesday, maybe Wednesday. Maybe, yeah. That would be nice. All right, I'm going to wrap it up. Thank you for listening. Thanks to Nina and Phil, and thank you for listening to the Up and Vanish trial series, The Trial of Ryan Duke.

Tune in Thursday as we cover the defense stating their case and Ryan Duke taking the stand. Up and Vanish is produced by Tenderfoot TV in Atlanta with production support by Core TV. Created by Payne Lindsey. Executive producer, Donald Albright. Produced by Thrasher Banks, Meredith Stedman, and Eric Quintana. Edited by Thrasher Banks.

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