Nation - Oregon Flow of information in case of missing boy uncommon; chance for fair trial hampered

By Maxine Bernstein The Oregonian PORTLAND, Ore. (AP) -- Law enforcement officials have refused to publicly discuss the focus of their 11-week investigation into the disappearance of Kyron Horman, but that hasn't kept explosive details from dribbling out in the father's divorce filings and in regular news conferences called by the missing boy's parents. Among the bombshells: Allegations that Kyron's stepmother, Terri Moulton Horman, tried to hire a hit man to kill her husband, Kaine Horman. Sexting from Terri Horman to Michael Cook, a former high school friend of Kyron's father, after the boy went missing and her husband filed for divorce. Cell phone text messages between Terri Horman and Cook in which she appears to cite how much her criminal defense attorney costs. Several criminal defense attorneys say it suggests an orchestrated attempt by law enforcement to steer the investigation and could hamper the fairness of any future trial. Other legal experts say there's no Oregon law or ethics rule that prevents it from occurring. Yet all agree it's an unconventional strategy. Law enforcement and prosecutors have a responsibility to share information with victims and their families concerning ongoing investigations, as well as an obligation to warn someone who might be in danger or is being threatened. "And if the families later reveal some of that information publicly, I don't think the law enforcement officials have done anything wrong," said professor Tom Lininger, who teaches a University of Oregon Law School course about the legal profession, with lessons on the Model Code of Professional Responsibility and Code of Judicial Ethics. Oregon's ethics rules for lawyers prohibit prosecutors from making statements about an investigation if they're likely to be disseminated widely and be prejudicial, meaning they would make it harder for the accused to get a fair trial, Lininger said. But Oregon's ethics rules don't clearly regulate the indirect disclosure of information to the public, via the victim's family, he said. Frankly, legal observers say, Kyron's parents are making public statements that the police cannot. Kaine Horman and Desiree Young have been briefed regularly by Multnomah County sheriff's investigators and prosecutors since their son went missing June 4 from Skyline School. And they have shared some of what they've learned in interviews, at news conferences and in written statements. They made a public plea for Terri Horman to cooperate with investigators, spoke about Terri's polygraph exams and results, and also issued a written statement about Terri Horman's friend DeDe Spicher, saying she had impeded the investigation and urging her to cooperate. Meanwhile, Kaine Horman's divorce lawyer, Laura Rackner, filed motions in court, including information that clearly came from law enforcement: Terri Horman's purported murder-for-hire plot against her husband; her "sexting" messages to Michael Cook; and her text messages appearing to reveal how much her high-profile criminal defense attorney costs. Legal observers say it suggests law enforcement and prosecutors are feeding details to the boy's parents, and Kaine Horman's civil attorney, which they've in turn made public to put pressure on those who detectives suspect are involved in the 7-year-old's disappearance or might have information that could help determine what happened to him. Margaret Paris, dean of the University of Oregon Law School, says it seems as if the release of certain details through Kyron's parents and court filings is a tool police and prosecutors are using to "turn up the heat" on people they believe are hiding information, or pressuring people to come forward. "It might be a borderline situation, where there isn't anything that expressly makes it wrong," Paris said. "But, assuming there's eventually an indictment and a trial, the question an attorney at that time would likely raise is the fact that there's been all this stuff leaked that would threaten their client's ability to get a fair trial." Stuart Slotnick, a managing partner in New York for the criminal defense litigation firm Buchanan Ingersoll & Rooney and a former prosecutor who works alongside his father and well-known defense attorney Barry Slotnick, said usually law enforcement closely restricts the flow of information in an ongoing investigation so it doesn't hamper the inquiry. "If they have evidence the stepmother was responsible for the disappearance, then they need to make an arrest," Slotnick said. "I would say a public relations campaign against a potential target is inappropriate, and likely counterproductive if in fact this is being orchestrated by the prosecution. If this is in fact happening, to overbear someone with bad press, it's not a conventional strategy." The inclusion of criminal investigative information in the pending Horman divorce case isn't as unusual, and there are no rules that prohibit litigants from including such material, Paris said. "Certainly we've all read in divorce petitions salacious details that come out of divorce filings, especially when celebrities are involved." But defense attorney John Henry Hingson III says what is unusual here is having a parallel civil proceeding, while there's an ongoing criminal case. Once Kaine Horman's lawyer includes material from law enforcement's investigation in a court filing, you can be sure Terri Horman's divorce attorney will argue that any police privilege to withhold criminal investigative material has been waived, and he probably will seek access to it, Hingson said. That doesn't mean he'll get it. A family law judge would end up the arbiter of the dispute. "There's a risk involved," Hingson said. "What's sauce for the goose is sauce for the gander." Lewis & Clark Law School professor Steve Kanter says law enforcement's principal goal is to find Kyron if he's alive or solve the crime if he's not. "I hope that prosecutors and law enforcement are being extremely careful and strategic about what they're doing," Kanter said. "But it's a dangerous game." Published: Tue, Aug 24, 2010

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