Q&A with Payne Lindsey and Philip Holloway 04.13.17
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Get your quote today at Progressive.com to join the over 28 million drivers who trust Progressive. Progressive Casualty Insurance Company and Affiliates. Price and coverage match limited by state law. Hey guys, Phillip Holloway here. Coming up in just a minute, I'm going to be breaking down with you some breaking news regarding

Ryan Duke has been charged by the grand jury in the Irwin County Superior Court with defense of malice murder, as bad as it gets, along with felony murder, aggravated assault, burglary, concealing a death. We're going to be breaking that down and answering your questions coming up. ♪

Can you just summarize in layman's terms what actually happened yesterday on April 12th? So the way it works typically is it's very non-ceremonial in nature. Basically, the grand jury is convened, and they're going to hear other cases besides this one. They're all placed under oath. The district attorney runs the show. The district attorney is by law the legal advisor to the grand jury.

But nobody's present in the grand jury room when they deliberate. But basically, the district attorney drafts up this document, the bill of indictment, and calls a witness or witnesses. In this case, it appears from the face of the indictment that they just brought in one witness, the case investigator, Jason Shadel from the GBI.

And it appears that that was the only witness. And that doesn't surprise me. There's usually only one witness in the majority of these types of things. And they basically answer the DA's questions, and they can answer questions if any are asked by the grand jurors. And then the district attorney and the witness leave the room, and the grand jury deliberates, and they decide whether or not there's probable cause.

So basically what's happened is the term of court has started for the upcoming term in the Irwin County Superior Court, and the grand jurors have met. And with one exception, the entire current grand jury for this term participated. They selected a foreperson and an assistant foreperson, and they started hearing some cases. And one of the ones that they heard, of course, was the case of the

is the state of Georgia versus Ryan Alexander Duke. And they issued what's called a true bill, which means the grand jury found that there was probable cause to believe that on October the 23rd of 2005, Ryan Alexander Duke committed the offense of malice murder. Now, malice is a type of criminal intent. It's something more than mere intention. It's more like an evilness

that goes along with it. It doesn't mean necessarily that it's premeditated for any long period of time. Malice of forethought can be something that occurs in an instant and it doesn't have to be like he planned it out for a week or two weeks. It could have been something that literally he decided to do instantaneously.

moments before he did it, allegedly. And count two, they charge him with felony murder, and they also charge him with felony murder in count three. Now, felony murder is still murder, and it carries the same potential penalties as malice murder, but it's a little bit different because it doesn't require malice. What it's based on is a

a person who dies, irrespective of malice, when someone's committing another felony offense. In this case, the first underlying felony is aggravated assault, and it alleges that he used his hand, an object which, when used offensively against a person, did result in serious bodily injury, the aggravated assault thereby causing the death of Tara Faye Grinsteadt.

So that's the first way. There's an alternative theory of criminal liability for felony murder, the underlying felony being...

burglary so they're saying that he committed those two separate and distinct felony offenses and then as a result of committing those offenses it caused her death so that's the difference between malice murder and felony murder so wait are they saying that this was a burglary he was there to burglarize the place one of the topics recently is the difference between burglary and robbery but what are they saying was he was he going there to steal something or what

They've alleged in count five that he did commit the offense of burglary. They always have to charge the underlying felonies separately along with the felony murder charge. So that's why you got count four being aggravated assault and count five being a burglary. And they do allege that he was there unlawfully and that he entered her home with the intention of committing a theft.

It's possible that they know that he was there to do other things, but elected not to charge that. But as charged, they're alleging that this is apparently a garden variety type burglary involving someone going to somebody's house and intending to steal from that house. Now, let me take just a minute and talk to you about burglary. Burglary...

could be something as simple as I decide to go to your house, Payne, when you're not there and I walk in. And when I walk in, my intention, what I have in my mind is that I'm going to steal your laptop. And I decide, wait a minute, Payne's a nice guy. I'm not going to steal his laptop. And I turn around and leave. Well, the burglary is already complete. The moment that I enter without authority, your residence with that intention in my head, it doesn't matter if I actually do it.

Under the law, the burglary is complete the moment that I enter your home. So this alleges that he went into her house with the intention of committing a theft. And so that is what they're saying happened. It could be that they named the intention being theft. That's right. And the way the law reads, if you enter or remain inside a location without authority with the intention of committing a felony or a theft, you're

you're guilty of burglary. So if you enter into someone's home with the intention of committing any felony, it's burglary. If you enter with the intention of committing aggravated assault, like they've alleged in this indictment, you're guilty of burglary. If you enter with the intention of committing forgery or any other felony criminal offense, you've committed the offense of burglary.

So it doesn't necessarily have to be theft. There could have been a more nefarious intention. Maybe if they knew about one, maybe they decided to leave it out or maybe they just believe it doesn't exist. But what they've chosen to proceed with for sure is the narrative that it was a garden variety burglary. Now, of course, the aggravated assault, they say that he entered with the intention of committing aggravated assault.

There are many ways that you can commit aggravated assault. You can commit an aggravated assault with a deadly weapon or with an object which might otherwise be a benign object like your hand. It's not necessarily an offensive weapon, but it can be used that way.

One thing about this indictment that stands out to me, and if I were going to try to defend against this, one challenge I might make to this indictment, and I think there's a pretty strong argument for it, is that it doesn't sufficiently, in my view, say how the hand was used in a way that was likely to cause serious injury or death. The indictment needs to sufficiently put someone on knowledge of what they have to defend against and

And if I'm reading this indictment as Ryan Duke's attorney, I'm not necessarily put on notice what I have to defend against. I mean, did he choke her with his hand? Did he hit her multiple times with his hand? We just don't know from reading this indictment.

I've seen a lot of indictments that allege felony murder based on aggravated assault. I've seen a lot of aggravated assault indictments. I've drafted a lot of them when I was a prosecutor. And we were trained that we always needed to be a little bit more specific when we're talking about items other than like a firearm that's typically considered a deadly weapon. If you're talking about a benign item like a hand or a lamppost or anything like that,

you kind of need to give some more specificity by saying, you know, using his hand to cause her death to wit did choke her to death or something along those lines, because this really doesn't say how he used the hand to cause the death. Other than that, I can say that this indictment is much better in its wording than the, than the warrants were. This indictment tracks the language of the relevant statutes and,

It hits on all of the elements of the offenses alleged. It's important to remember, though, that indictment is not evidence. An indictment is simply a formal charging document that replaces the arrest warrant. And if there is a trial or a plea or anything that happens in court that resolves this case, they have to base that on this new charging document because it supersedes anything else. It does add the offense of malice murder.

That was one of the things we talked about right after the arrest when we saw the warrants was, well, if he committed aggravated assault, that's an intentional act. And I wondered out loud, I think on the podcast, why they didn't charge malice murder in the warrant. It was not very clear, but it used the words intention and things like that. And it did not use the legal word, which is malice, which is similar, but means something entirely different.

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You can do more without spending more. Learn how to save at Cox.com slash internet. Cox internet is connected to the premises via coaxial cable. Cox mobile runs on the network with unbeatable 5G reliability as measured by UCLA LLC in the U.S. to age 2023. Results may vary, not an endorsement of the restrictions apply. And now we're going to start back answering questions people have actually called in to the voicemail line, which is 770-545-6411. Feel free to use that in the future. Now we'll answer some actual listener questions.

Hi, Payne. I've been listening to your show since the beginning of your podcast. And I have a question about the jury for Bo Duke. If he does not take a plea and move forward in trial, how would a jury panel be put together in such a small county? It's a good question. And it basically is how would they get a jury from such a small county? And I think the obvious answer is that they're not. They're not going to get a jury if this case were to go to trial.

They're not going to get a jury from Irwin County. There's been so much widespread and pervasive publicity, which of course was the reason for the podcast and the reason for the gag order. There's not going to be anybody that probably doesn't have some opinion about the case already. And everybody I've talked to in the legal community, it's almost unanimous. Everybody's confident that

they would need to move the trial outside of Irwin County to some other jurisdiction that may not have heard so much about it or have formed opinions about it. Now, it's important to recognize that a defendant charged with a crime has a constitutional right in the state of Georgia

to be tried in the county and have a jury picked from the county where the crime allegedly occurred. A request for change of venue must come from the defendant, and it would mean that they would waive their right to have a trial in that county. But I think it would be virtually impossible if the case were to be tried. I have my own reservations about whether or not it's actually going to go to trial. My personal belief is that it will not. But if it does, it's going to have to be moved out of that county.

Hi, this is Amanda calling from Modesto, California. My question is regarding on the last episode, you talked about the conversation that Bo Duke supposedly had with somebody online. And my question is, how could that potential conversation or any other conversations that he may have had affect Bo's

future trials related to him or Ryan Duke, could that be entered as evidence or would it affect any prior statements? Any statement that you make anywhere to anybody, if it can be

that was you that made that statement, if it can be used against you in court, then they will bring it in. And if a criminal defendant makes a statement to a third party, it's not hearsay by definition. It can come in whether or not the person said it in court or if it's an out-of-court setting.

Anything that's said in any capacity could be electronic. It could be on Facebook or on Twitter or on text message, or it could be verbal. Anything that you say, if it matters in the case, it can be used against you. I think that answers the question. It's pretty clear that anything that either one of these defendants may have said against their own interests could cause them some very serious problems.

Hey, Phil. This is Jared from the great state of Ohio. And my question is this. With all that he's being indicted with, if he was found guilty of all charges, what would be the maximum sentence or punishment for those crimes? And is it possible that he would get the death penalty for what he's being charged with?

Thanks, guys. Enjoy the show. Okay, that's an excellent question. All the charges in the indictment except for the concealing of death, let's say there was a trial and he was found guilty of everything. All of the charges in the case other than concealing of death would, I think, merge, that is, be absorbed into the malice murder charges.

Now, that count is count one. The maximum penalty would be death. The minimum penalty, if convicted, would be life with the possibility of parole. There's a middle ground, which is life without parole. Now, the judge can always tack on a consecutive sentence for the concealing of death of 10 years, I believe. So we're looking at potentially a life sentence or a death sentence plus 10 years if there is such a thing. Now, the DA hasn't said that they're seeking the death penalty yet.

I personally believe that you could make the case that this would qualify for the death penalty. I personally don't believe they will be seeking the death penalty, but even if all the other charges are absorbed into count one and he's simply sentenced on that, he's looking at at least a life sentence with the possibility of parole. But of course,

That's assuming a lot. You know, parole in Georgia doesn't mean what it used to. You got to serve 30 something years before you're even entitled to be considered for parole. So a life sentence, even with the possibility of parole, is a very, very long time. Hey, Payne, this is Mary Ann from Nashville. I love the show and I think you've done a great job. Just wanted to ask if both of you were part of the concealing of Tara's body or involved in the case in any way?

surely there's not a way that he can actually get the reward money.

That just seems like that's ridiculous in my opinion. But I don't know, you know, what that looks like legally. So anyway, just wondering, don't keep up the good work. And we don't know what stipulations, if any, may be attached to the reward money. But the bottom line is, no, I don't think Bo is going to be getting any reward money. I think that's a fair conclusion. Whether and to what extent anybody else may be entitled to it is an open question because we don't know the

of who's entitled to collect it or what the conditions might be. And a lot of times, these cases wind up in litigation. If someone believes they're entitled to reward money, it's not granted, then there's a court case that follows.

I'm fairly confident, very confident, as a matter of fact, that Bo is not going to be collecting any reward money. Yeah, this is about the trial cost. I've heard it said in several podcasts that if there would have been a trial on Ocilla, that it could possibly bankrupt Ocilla. But my question is, what is the...

expenditures for a trial that size to possibly have that much cost to actually almost bankrupt some like a small town, but love the podcast. Thanks. Okay. Every time you move a trial from one jurisdiction to another, and we just saw this not too long ago in Georgia and the hot car death trial with Justin Ross Harris, which was moved from Cobb County to Brunswick. And using that as the most recent example of a move trial in Georgia is

You know, you've got to put up the judge in a hotel for as long as the trial takes. Maybe it takes a couple of weeks, maybe three. You've got to put up the defense team. You've got to put up the prosecutors. You've got to get all the evidence moved. The jurors would come from the local jurisdiction where the trial was moved to. Basically, everybody involved in the trial, from the Irwin County Superior Court judge to the Irwin County DA, his staff, his investigators –

They all have to move. They have to be put up in hotels. Court reporters have to go. The defense team, the public defender and anybody working with him has to go. You've got security costs because if you move it to another county, then that other county's jail has to hold an inmate that belongs to another county. So you've got to pay another county to house an inmate. Security costs.

Lots of things that people don't think about, but a trial is a very complicated machine and there's a lot of moving parts to it. And basically you take everything and you unplan it, you transplant it and you replant it. It could be hundreds of miles away.

And there's just a lot of extraneous expenses that people oftentimes overlook. But suffice it to say, it's a considerably higher cost associated with a moved trial than one that takes place where it occurred. Hey, this is Leslie from Mississippi. My question is, if Bo was convicted of the embezzlement charge,

Is that something that would qualify his DNA to go into CODIS? And if so, do we think they tested it against the glove? Or was that crime not something that would require him to give a DNA sample? Thanks so much. Bye-bye. Yeah, they would have most likely taken his DNA. They certainly would have taken his fingerprints. And those types of things would go...

go into the electronic databases, one for the fingerprint, one for the DNA, and if they have any

DNA that they can compare it to. And if there's a match, then they can make that match. But they also can potentially try to rule somebody out as being in a place as well. But it's a lot easier to rule somebody in than it is to rule them out as being in a location based on the existence or non-existence of either one of those items. So these are the Twitter questions and Facebook questions and stuff. This question is from at Ben Degagni. Does an indictment mean that there will be a trial by jury?

Well, an indictment means that there can be a trial by jury, but it also means that there can be a plea. Under Georgia law, you cannot enter a plea of guilty to a capital offense, and a capital offense is anything punishable by death or life imprisonment. Certainly murder qualifies.

You can't enter a plea to a murder charge in the state of Georgia unless there's been a grand jury indictment. Many offenses can, a defendant can waive their right to a grand jury and the prosecutor can proceed on what's called an accusation, which is essentially the same kind of document, but there's just no grand jury. It's just signed by the DA.

There's other types of cases where the DA can automatically do an accusation, but not on a capital case. So before the case can be resolved one way or the other, by trial or by plea, there has to be a grand jury indictment in the case. All right, this one's from Sharon, at 3doglove3.com.

Why does the GBI keep everything so secretive? What are they trying to protect? Well, right now, the short answer is that there's a gag order in place and they can't. Secondarily to that, it's just a matter of good police procedure to protect the integrity of your investigation that you don't reveal everything you know. Payne Lindsey might know a thing or two about that, but it's true. You don't necessarily reveal everything you know so that you don't compromise the results of your investigation. Because if you think about it,

In the broader sense, you know, you've got a human being's life on the line, someone who is presumed to be innocent, unless they either plead guilty or a jury finds them guilty. So they need to make sure that what information gets before a jury potentially is not contaminated in any way. That's sort of the long answer to a short question. This one's from Denise Woods at Georgia Lady 7. Did the grand jury ask many questions?

We don't know because what happens in a grand jury in Georgia is secret. Their deliberations are done entirely in secret, and what happens before they start deliberating is secret. So we don't know, and we're not entitled to know by law what, if any, questions they asked of any witnesses that were called. It looks like there was only one witness, which is the lead case agent.

based on my experience having presented cases to grand juries when I was a prosecutor, many times there are no questions. And if there are questions, it sometimes just lasts for a few minutes. I've had the rare case that takes a little longer, but most of them are fairly quick. Well, this is a good one, a little bit different twist on the question from at Rachel Stormbeck. Any chance the grand jury members could speak out about what they heard this week? Is it against the law or just against the gag order?

Well, interestingly enough, the grand jurors are not subject to the gag order, but they are subject to state law and to the oath that they took to keep everything secret and not discuss outside the grand jury room what happens in the grand jury. So it's not really a gag order issue, but it is part of state law. They can't talk about what happens in grand jury.

Okay, this one's from Jennifer Nicholson at Jenny Nick 2. Will the public ever truly be informed as to what really happened the night Terry Grinstead disappeared? Well, I think that's an excellent question. That's been my biggest concern ever since there was these arrests in the case is that if some deal is cut with Ryan and or with Bo, then it's possible that they could wind up in court maybe on a Saturday afternoon,

on an unplanned, unscheduled calendar, stipulate to a factual basis without anybody having to say exactly what the facts of the case are. The judge could accept a plea of guilty and a negotiated plea and off to prison he goes without there ever being any public record of what they believe happened. Do you think we can have any effect on that? I think that the public can have an effect to the degree that the public can make it known to the elected officials that they're not going to stand for it.

And I think that's really the check and balance that you have. Yeah. But I do this all the time. If we want to schedule a negotiated plea, you literally just have to call the judge's office and say, we'd like to bring so-and-so in for a negotiated plea tomorrow afternoon at 2 o'clock. Can the judge do it? And the answer is yes or no. All right. This is from Miss Bria 3. Does the GBI know if anyone else besides Bo and Orion was involved with the concealment of the body?

Well, presumably they would know, but we don't know what they know. We don't know what they don't know. There may be things missing. I've never seen an investigation that answered every single question that could possibly exist. But going out on a limb here, I'm going to say that if they felt someone was criminally involved in any aspect of this case, they would have been charged. That's what my gut tells me, and I believe that to be the case.

All right, so Payne, a lot of people have sent me some questions over Facebook, and I promise that we get to some of them. Kristen wants to know if anything ever happened with the soil samples that you took from below a house in Osceola, and has that house been ruled out at this point? Those soil samples were tested, and results were negative. As far as the house, I'll just go ahead and tell you the house. It was where the barbecue was. That's the house it was. We tested...

the soil underneath the house where Tara went to the barbecue that night. Wow. Someone sent us a tip and we looked into it and felt that it had some merit to it and went out there, crawled around and took some samples. And that's where the GBI came later and found the animal bones, which I firmly believe were animal bones. And I was pretty shocked that they found something, but we searched all

everywhere in where we were. Now, you could have crawled deeper under the house through the crawl space to the other side, but if you stayed in the area where you could see and looked the strangest, you wouldn't have found anything in there. So I'm pretty confident that whatever they did find was way deep in there and not where we were looking. Aaron asks, Payne, have you tried to reach out to Ryan for an interview and do you think at some point he may speak to you? I have not tried to reach out to Ryan.

I would definitely entertain the idea. I would be open for him telling me his side of the story and telling everybody else, but I have not reached out, and I'm not sure if that would ever happen. Becca on Facebook asks, do we know when Ryan's arraignment will be?

That's a very good question, and it leads me into a topic I want to talk about, which is the next steps. The arraignment is what happens next. It goes back to the old days in Georgia when people could not necessarily across the board, for the most part, read and write. And so to be put on notice for what you were charged with,

You had to be brought into court and literally, if you couldn't read, the judge or the DA would read out loud in open court exactly what you're charged with and give you a copy of the written document.

So it's a throwback to the old days, and it's an antiquated procedure most of the time. And people who have lawyers frequently waive arraignment, which means their lawyer will sign a document entering an initial plea of not guilty, and they'll get a copy of the indictment, and they will get future court dates if they're known. And then the lawyers go off to start preparing their strategy for how they're going to resolve the case.

So an arraignment is something that will be next and it will be set by the court in the not too distant future. And it's also something that very well could be waived. And it's not necessarily a time when we will see the defendant in court. Now, it's important to point out that at any point in the process from this point going forward, the next step could be the entry of a plea of guilty. So if they work out a plea deal, they can literally skip over the arraignment if the parties agree to it and just go straight into a plea deal.

and have a guilty plea hearing. And that could be next. But short of that, the arraignment will come next. We know that there's a five-day notice requirement, so it's going to be in the not-too-distant future, but not necessarily in the next day or two following the indictment. So after that, there's time for pretrial matters, pretrial motions to exclude evidence or other things. Various motions can be filed by either party that the judge would need to rule on.

And then there would be a trial. And this could happen quickly, but I tend to doubt it. If it's going to be a trial, it will be several months in the future. But that would be how the case would be resolved if there's not a negotiated plea deal. Thanks for listening, guys. Today's episode was mixed and mastered by Resonate Recordings. You can check them out at resonaterecordings.com. As a reminder, next Monday is a case evidence. Thanks for listening, guys, and see you soon.

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