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DaisyD

Captain Bret Alan Smith Part 5: Still No Trial Update: He Plead Guilty

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SamuraiKatz
Continued from here:
 
Seriously why no trial date? Are Allan and his attorney waiting for the memories of his probably young victims to fade? As the spouse, Katie's testomony will be curtailed by the spousal privilege loophole.

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Lurky

Here's a Q for USA FJers: how long is the statute of limitations?  What happens if someone is kept in jail without a trial for longer than that?

Like @SamuraiKatz, I'm confused why no trial.  I really worry that some evil defense attorneys will be pull some "How can you remember that, it was over 2 years ago" BS.  I can only hope the evidence is water-tight, and a ton of investigation is going on to make sure there weren't any other victims/he's prosecuted for other crimes too.

Would Katie's hypothetical testimony still be covered by spousal privilege, since they're divorced? 

(I'm kind of surprised Captain Bret isn't yelling about how long Alan has been without a trial - but then, the fact he's not makes me more convinced that there's overwhelming evidence..)

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hoipolloi

IIRC, he was facing charges in two jurisdictions (i.e., two different counties in Georgia). Don't know if that has something to do with why it seems to be taking a long time.

 

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Giddy
Carm_88

I honestly feel like this has been dragging on forever. I really want justice for the victims in all of this. They need to get a chance to move on and honestly, that's not going to happen with the trial hanging over their heads. 

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snarkopolis

Katie can testify. The privilege is granted to the spouse NOT accused so they cannot be forced to testify and ruin the relationship. (That whole trust thing part)

Sometimes delays can be had for scheduling reasons, motions made and heard, etc.

Also the defendant gets credit for time served if found guilty. That is beneficial to the defendant to serve now in a lesser prison (county versus state).

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anjulibai

A spouse can't be compelled to testify, but they can if they choose. Plus Katie is divorced now. 

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DaisyD
5 hours ago, Lurky said:

Here's a Q for USA FJers: how long is the statute of limitations?  

I believe statute of limitations is for charges to be filed. They've been filed or he wouldn't be in custody. No worries on that.

52 minutes ago, snarkopolis said:

Katie can testify. The privilege is granted to the spouse NOT accused so they cannot be forced to testify and ruin the relationship. (That whole trust thing part)

It's also to protect them from being forced to financially ruin themselves. If the bread winner goes to jail, they're in a spot.

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neurogirl

In defense of the math question, "what decimal part of 20 is 3?" I'll be honest I didn't understand what the question was asking at first either and I've taken upper-level calculus, tutored the SATS, blah blah blah. If the issue is DIVIDING 3 by 20, that was something we were doing in public school by 5th/6th grade. But I was thrown off by the wording at first too! (And so was my fiance when I asked him that question. Are we being dumb? Maybe we've just been out of the classroom too long? lol)

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anjulibai
3 minutes ago, neurogirl said:

In defense of the math question, "what decimal part of 20 is 3?" I'll be honest I didn't understand what the question was asking at first either and I've taken upper-level calculus, tutored the SATS, blah blah blah. If the issue is DIVIDING 3 by 20, that was something we were doing in public school by 5th/6th grade. But I was thrown off by the wording at first too! (And so was my fiance when I asked him that question. Are we being dumb? Maybe we've just been out of the classroom too long? lol)

No, I thought it was badly written, too, and I teach high school math. It's important to be very clear about what you are asking students. I would have written that question as "What is 20 divided by 3 in decimal form?" or "What is the decimal form of 20 over 3?" or "What is the quotient of 20 and 3 in decimal form?" Any of those would be much more easily understood by a student. 

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JermajestyDuggar

This is exactly why I was relieved Toby Willis plead guilty. This shit can take forever. If Alan wasn't human garbage he would plead guilty and stop putting his family through this. 

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Glasgowghirl

I wish Alan would just take a plea deal or plead guilty and spare his victims this trauma of waiting and testifying in court and his family need to stop playing the victims, they lost the right to be in their grandchildren's lives when they took Alan's side.

3 minutes ago, JermajestyDuggar said:

This is exactly why I was relieved Toby Willis plead guilty. This shit can take forever. If Alan wasn't human garbage he would plead guilty and stop putting his family through this. 

Yes, the Willis girls have now been able to begin to rebuild their lives since Toby's conviction and they know he will be locked up for a long time.

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DaisyD
39 minutes ago, neurogirl said:

In defense of the math question, "what decimal part of 20 is 3?" I'll be honest I didn't understand what the question was asking at first either and I've taken upper-level calculus, tutored the SATS, blah blah blah. If the issue is DIVIDING 3 by 20, that was something we were doing in public school by 5th/6th grade. But I was thrown off by the wording at first too! (And so was my fiance when I asked him that question. Are we being dumb? Maybe we've just been out of the classroom too long? lol)

It seems that every time they determine a new way to teach math (new math, common core, ...) The terminology changes. I struggled to help the girl with her 2nd grade math because I didn't understand the questions.

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SolomonFundy

I posted this in the previous thread last Fall. Nothing about Alan's situation has outwardly changed in the interim, so it's all still pertinent (as a general overview, along with my theories on some aspects of the wait):

Quote

 

In most of the US, you can be held in county jail for an indefinite period of time, though you have to be issued a "reasonable" bail unless bail is outright denied. What is "reasonable" is entirely up to the courts, and they do not generally factor your ability to pay into the equation. Alan would have had his set by a superior judge due to the severity of the charges (Georgia's "Seven Deadly Sins"), and my assumption is that nobody in his family is willing or able to pay it. He may have been denied bail.*

He could sit in jail for years without criminal indictment.  If he accepts a plea, he will be moved to a prison. He faces a minimum of 10 years per criminal count if he is convicted, and they will factor in time served at the county level. This is just a personal assumption, but I think his legal representative has probably encouraged him to stay in county as long as possible for his own safety. (I'm not saying he has it easy in jail, but generally speaking, he's less likely to be harmed by other inmates there than in prison unless he's isolated.) It makes sense from that perspective, though some inmates aren't credited the full amount of jail time when they do this. So it's a gamble if that's what he actually is going for. Naturally, if the state gets all of the evidence they need and decides to indict him, he will either need to go to trial or accept a plea. He won't receive a reduction of his sentence in any event because SDS convictions require 100% of the time to be served.

What makes it interesting is the additional case that was alluded to in the original article. If he is convicted of the Colquitt crimes and then is later convicted of a separate SDS crime from Ashburn County, he will never be released from prison. Georgia has a "two strikes" penalty on SDS crimes. However, it seems like the two jurisdictions were working together, so in all likelihood, any related charges will be added to the same case.

 

 

*When I initially wrote this, I didn't realize that his bail actually had been denied. So Alan's family has never had the option of bailing him out pending trial. Had they been able to do so, I am sure he would have been home for most of the time since the charges were filed.

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WhatWouldJohnCrichtonDo?
6 hours ago, DaisyD said:

It seems that every time they determine a new way to teach math (new math, common core, ...) The terminology changes. I struggled to help the girl with her 2nd grade math because I didn't understand the questions.

I imagine it must be even harder for parents who don't speak (or don't have fluency in) the language in which their child is learning math.

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subsaharanafrica
On 3/3/2018 at 10:36 PM, Lurky said:

Here's a Q for USA FJers: how long is the statute of limitations?  What happens if someone is kept in jail without a trial for longer than that?

<snip>

(I'm kind of surprised Captain Bret isn't yelling about how long Alan has been without a trial - but then, the fact he's not makes me more convinced that there's overwhelming evidence..)

The statute of limitations is a different issue to your right to a speedy trial. If the government violates your right to a speedy trial the charges get dismissed with prejudice (so you can’t be tried for the same thing by the same government entity again).  For a case to be thrown out for this isn’t a technicality as stated in the article linked in the last set of posts, but a really, really big deal in which the prosecution majorly effed up. For this reason delays at getting to trial are far more often than not the defense saying they’re not ready to mount a defense and repeatedly requesting continuances. Generally speaking you don’t get to drag your feet on your own defense and then turn around and successfully claim that your right to a speedy trial was violated.

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Meh
Palimpsest

As @SolomonFundy said above:  Due to the nature of the crime Alan was denied bail.  He was charged well within the statute of limitations for sexual abuse against children.    

After that "the right to a speedy trial" not the SOL comes into play.  Alan has to actually file an official "demand for a speedy trial" for that specific clock to start running.   https://law.justia.com/codes/georgia/2010/title-17/chapter-7/article-7/17-7-170/

Defense counsels often advise against demanding a speedy trial because the length of time between arraignment and trial weakens the case (as in people's memories fade.)

Although this seems to be taking forever it is actually still <2 years since Alan was arrested (in July 2016).  That is really not unusual.  Many cases of this sort take up to 3 years to go to trial.  Constructing a defense and getting depositions from witnesses takes time for both defense and prosecution.  And the court system is backed up - they'll need a big block of time for a case like this if Alan doesn't take a plea.  

Also there could have been several court dates  where the case was continued that even the local paper hasn't covered.  Alan is not nearly as well known as Toby Willis. 

I sincerely hope he takes a plea too.  It would be so much better for the family and the victim(s) not to have to go through the trauma of a trial.

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Wine time!
ophelia
Just now, Palimpsest said:

I sincerely hope he takes a plea too.  It would be so much better for the family and the victim(s) not to have to go through the trauma of a trial.

I absolutely hope that he will do that, but sadly I don't think this will be the case. I can totally see him (and his parents) use a trial to show off his holiness, drag his ex-wife through the mud and make this all about him. How he is the victim, how Christians are persecuted in the US etc. It will be horrible!

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Flossie

Defense attorneys love to "age the case", hoping that they can say that too much time has passed for witnesses to accurately remember what really happened, or claim that over time witnesses have been subtlety tampered with by others, even if unintentionally.  There is also the possibility that the accuser or key witnesses have moved away and it would be difficult for them to return for the trial.

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BabyBottlePop

Could they record the young witnesses giving testimony and show it later?

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subsaharanafrica
7 hours ago, BabyBottlePop said:

Could they record the young witnesses giving testimony and show it later?

No. The defense has the right to confront any and all witnesses against them in court, under oath. This is why DAs try so hard to plead out cases with child victims. 

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Palimpsest
7 hours ago, subsaharanafrica said:

No. The defense has the right to confront any and all witnesses against them in court, under oath. This is why DAs try so hard to plead out cases with child victims. 

Is this completely true?  (I-am-not-a-lawyer.)

I thought that children's testimony in sexual abuse cases, especially when the accused is a parent, doesn't have to be in open court confronting the accused.  https://www.law.cornell.edu/uscode/text/18/3509 

Quote

U.S. Code › Title 18 › Part II › Chapter 223 › § 3509

18 U.S. Code § 3509 - Child victims’ and child witnesses’ rights

<snip>

(b)Alternatives to Live In-Court Testimony.—(1)Child’s live testimony by 2-way closed circuit television.—(A)

In a proceeding involving an alleged offense against a child, the attorney for the Government, the child’s attorney, or a guardian ad litem appointed under subsection (h) may apply for an order that the child’s testimony be taken in a room outside the courtroom and be televised by 2-way closed circuit television. The person seeking such an order shall apply for such an order at least 7 days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable.

(B)The court may order that the testimony of the child be taken by closed-circuit television as provided in subparagraph (A) if the court finds that the child is unable to testify in open court in the presence of the defendant, for any of the following reasons:

(i) The child is unable to testify because of fear.

(ii)  There is a substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying.

(iii) The child suffers a mental or other infirmity.

(iv) Conduct by defendant or defense counsel causes the child to be unable to continue testifying.

(C)

The court shall support a ruling on the child’s inability to testify with findings on the record. In determining whether the impact on an individual child of one or more of the factors described in subparagraph (B) is so substantial as to justify an order under subparagraph (A), the court may question the minor in chambers, or at some other comfortable place other than the courtroom, on the record for a reasonable period of time with the child attendant, the prosecutor, the child’s attorney, the guardian ad litem, and the defense counsel present.

(D)If the court orders the taking of testimony by television, the attorney for the Government and the attorney for the defendant not including an attorney pro se for a party shall be present in a room outside the courtroom with the child and the child shall be subjected to direct and cross-examination. The only other persons who may be permitted in the room with the child during the child’s testimony are—

(i) the child’s attorney or guardian ad litem appointed under subsection (h);

(ii) persons necessary to operate the closed-circuit television equipment;

(iii) a judicial officer, appointed by the court; and

<snip>

Also there was a 2015 Supreme Court decision saying that indirect testimony is allowed.  https://www.usatoday.com/story/news/nation/2015/06/18/supreme-court-child-abuse/27726965/

These are both Federal Law but I thought that trumped state laws.

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mydoggoskeeper
7 hours ago, subsaharanafrica said:

No. The defense has the right to confront any and all witnesses against them in court, under oath. This is why DAs try so hard to plead out cases with child victims. 

It really surprised me that he hasn't pleaded out, especially if the victims are family.  To have Katie divorce him in that culture and his sisters turn their back on him and their parents speaks to the evidence and the severity of his actions.    Alan's and perhaps Bret's hubris and self-righteousness are on full display.  

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subsaharanafrica
24 minutes ago, Palimpsest said:

Is this completely true?  (I-am-not-a-lawyer.)

The only exception for admitting someone’s previous sworn testimony (like say from a grand jury) without that person having to give the testimony subject to cross examination at trial is if the defendant were to murder the witness or otherwise make them unavailable to testify for the express purpose of keeping them from testifying. 

The examples you posted aren’t exceptions to the rule at all. In the first instance defense counsel still has the right to cross examine the witness under oath as part of the trial and the right to confront your accuser is satisfied. The second link says it’s about the right to confront your accuser but it’s not really—that one is more an exception to the rules against hearsay. It wasn’t the kid testifying, it was the teacher (because how else would they have gotten the report into evidence?) and the teacher was open to cross examination. 

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SamuraiKatz
No. The defense has the right to confront any and all witnesses against them in court, under oath. This is why DAs try so hard to plead out cases with child victims. 
Mr. Smith wants to confront childten in court? Including those he is charge with committing incest? He is a sorry narcissistic bastard. His parents are even more awful for enabling him and making him out to be some sort of martyr

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