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Josh & Anna Smuggar: A Series of Unfortunate Events


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5 hours ago, Rootbeer said:

I'm pretty sure that the Washington County jail where Josh is located does not allow incoming calls for inmates.  They've got capacity for 700+ prisoners and it wouldn't be practical.

I believe that some of the lawyers on this thread have said that it is not likely that Josh' phone calls are being monitored.  Once again, there are 700 other prisoners in the jail.  Josh has already been convicted with a pretty airtight case.  The odds that he would say anything that would lead to more charges against him on a phone call are pretty slim and the county doesn't have the time or money for that sort of surveillance.

Yes, the jail does not allow incoming calls.

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4 hours ago, Quilt Fairy said:

Also, I assume that the OP who commented "The checks haven't cleared" was snarking. 

only somewhat.   I literally have an appeal right now where the other side asked for more time to file the transcript because the client hadn't committed to pay for it.   Put that right in their motion.   Which ummm .....   

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11 hours ago, merylinkid said:

only somewhat.   I literally have an appeal right now where the other side asked for more time to file the transcript because the client hadn't committed to pay for it.   Put that right in their motion.   Which ummm .....   

You'd think they'd want to keep that to themselves.  However, in this sort of case, I am sure it is a major consideration. A huge amount of cash has already been spent and not every defendant would have the means to support an appeal.  I imagine JB's hand shaking as he writes yet another check to defend the indefensible.

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17 minutes ago, Tikichick said:

Federal defendants aren't entitled to court-appointed counsel to perfect their appeals if they cannot afford an attorney of their own choosing?   That doesn't seem like due process.

Maybe the key thing is you have to prove you can't afford it.  The Duggars are pretty wealthy, or certainly have access to the trappings of wealth anyway.  

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10 minutes ago, SusannahM said:

Maybe the key thing is you have to prove you can't afford it.  The Duggars are pretty wealthy, or certainly have access to the trappings of wealth anyway.  

Only Josh's income and assets would be under consideration.  Parents aren't obliged to pay for their adult offspring.  

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13 minutes ago, Absolom said:

Only Josh's income and assets would be under consideration.  Parents aren't obliged to pay for their adult offspring.  

That's the thing the word here being "obliged".  It will be interesting going forward to see if the Duggar parents feel any obligation to keep footing Josh's defense tab.

Edited by SusannahM
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38 minutes ago, Absolom said:

True.  Even Jim Bob will want to stop the bleeding at some point I'd think.  I was mainly speaking in reference to Josh being able to get free representation for an appeal.  His parents' resources wouldn't be considered there.

I'm not so sure that court appointed automatically means free.   It doesn't here at the State level.  Defendants are required to complete an asset and income form and it is determined what portion of the fee they must pay back.

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2 hours ago, Tikichick said:

Federal defendants aren't entitled to court-appointed counsel to perfect their appeals if they cannot afford an attorney of their own choosing?   That doesn't seem like due process.

I expect that they are.  However, presuming JB and certainly Josh would want the appeal handled by their handpicked specialists and not a court appointee, I could see them perhaps haggling with the lawyers over a retainer for an appeal and the attorneys deciding not to file until they've been paid; hence the extension.

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59 minutes ago, Tikichick said:

I'm not so sure that court appointed automatically means free.   It doesn't here at the State level.  Defendants are required to complete an asset and income form and it is determined what portion of the fee they must pay back.

And the Duggars have very carefully made sure that Josh has no tangible assets at this point.  He doesn't own a home, he doesn't own a business, he hasn't had any known source of income for a couple of years.  JB and Michelle aren't going to figure into the equation should Josh request counsel from the court and I expect his finances have been set up so that he would qualify for free or very deeply discounted legal services.

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Is there any possibility that Josh will have to pay a fine, in addition to the jail time?

There is a fine that can be assessed as well as prison time, I think it was $250,000 in Josh' case.

Edited by Rootbeer
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1 hour ago, Rootbeer said:

I expect that they are.  However, presuming JB and certainly Josh would want the appeal handled by their handpicked specialists and not a court appointee, I could see them perhaps haggling with the lawyers over a retainer for an appeal and the attorneys deciding not to file until they've been paid; hence the extension.

I wouldn't necessarily presume they want the appeal handled by their handpicked specialists.   Court appointed appeals attorneys are not the same as court appointed defense attorneys.  Frankly if I were in need myself I would use a court appointed appeals attorney because they have more experience mining the minutiae for appellate issues than anyone else, and that's what appeals usually ride on, minutiae of legal issues.  

1 hour ago, Rootbeer said:

And the Duggars have very carefully made sure that Josh has no tangible assets at this point.  He doesn't own a home, he doesn't own a business, he hasn't had any known source of income for a couple of years.  JB and Michelle aren't going to figure into the equation should Josh request counsel from the court and I expect his finances have been set up so that he would qualify for free or very deeply discounted legal services.

There is a fine that can be assessed as well as prison time, I think it was $250,000 in Josh' case.

I didn't in any way suggest Duggar assets would be used for appeal, or that JB & M were going to figure into the equation in any way.  Usually defendants are left with even a token responsibility for some portion of court appointed legal fees.   The number one factor in Josh's favor of being one of the lucky few to avoid being apportioned any responsibility for legal costs is ironically his large brood of children.  

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3 hours ago, Tikichick said:

I wouldn't necessarily presume they want the appeal handled by their handpicked specialists.   Court appointed appeals attorneys are not the same as court appointed defense attorneys.  Frankly if I were in need myself I would use a court appointed appeals attorney because they have more experience mining the minutiae for appellate issues than anyone else, and that's what appeals usually ride on, minutiae of legal issues.  

Josh's legal team included an appeals specialist from Gelfand's firm.  Presumably he was on the team because they expected they'd lose and need to appeal.  They've already paid for some of his services.  Why add him in if they didn't intend to use him? 

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10 minutes ago, Quilt Fairy said:

Josh's legal team included an appeals specialist from Gelfand's firm.  Presumably he was on the team because they expected they'd lose and need to appeal.  They've already paid for some of his services.  Why add him in if they didn't intend to use him? 

I didn't know that they had an appeals specialist on the team, nor was that expressed in the comment I was responding to.   They may have planned for the potential of conviction and wanted to have the appellate specialist up to speed, ready to roll.  (Which would beg the question why the need for the extension?)   There could be other reasons an appellate specialist was included in the team as well.

As far as what you bolded in my comment you left out part of what I had said, which was what I would do if I found myself in need of appellate counsel.   Uncertain if you were indicating you were in disagreement, which is fine.   I still would use appointed appellate counsel myself -- nobody dredges through more of the technicalities of appellate issues than they do, including appellate specialists at other firms.   

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I've read the defense motion for a ten-day extension of time in which to file post-trial motions*. There's nothing exciting or sketchy about it. It simply says that counsel needs the trial transcripts to prepare the motions, and the transcripts weren't yet ready. Remember, the defense isn't in charge of preparing the transcripts; that's the court's job.

The prosecution didn't object to the motion for extension of time, and the court granted it. That gave the defense until today, January 19, to file their post-trial motions. It seems that the transcripts were finished and filed on January 16.

Today - January 19 - defense counsel filed a motion for judgment of acquittal or in the alternative for a new trial. The court almost never grants that motion; it's the standard motion that the defense must file to preserve rights to an appeal. I assume the prosecution will now file a reply in opposition to the defense motion. I haven't read the defense motion and probably won't.

*This has been called, upthread, a motion for extension of time to file the appeal. That's not exactly correct, although the post-trial motions do preserve the defendant's option to appeal the conviction. There are a few steps yet before an actual appeal will be filed for Josh, but his lawyers so far are following the procedures required to get there. 

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5 hours ago, Tikichick said:

As far as what you bolded in my comment you left out part of what I had said, which was what I would do if I found myself in need of appellate counsel.   Uncertain if you were indicating you were in disagreement, which is fine.   I still would use appointed appellate counsel myself -- nobody dredges through more of the technicalities of appellate issues than they do, including appellate specialists at other firms. 

Sorry if my bolding confused the point I was trying to make, which was only that Josh's team did/does include an appeals specialist.  

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A motion for a new trial is different from an appeal.   For a New Trial you do need the transcript.    

A motion for new trial = asking the judge who heard the whole damn trial to do it over again because something was wrong.  You have to specify IN THE MOTION what the judge/jury got wrong.    Guess the rate of success on these.   But it DOES toll the deadline to file an appeal. 

Notice of Appeal = "Hi, Court, I would like to appeal this" goes to a higher court that reviews the RECORD of the trial court only.   No new evidence, no new witnesses.    You do not need to specify in your notice WHY you are appealing.   That comes later.

 

I am surprised it took so long to file the Motion for New Trial.   Although not familiar with Fed Rules.   For my state, you have to file your Motion for a New Trial within 10 days.   That's why you take REALLY GOOD NOTES, so you can state in your Motion what was wrong without having to pay higher fees to get the rush transcript. 

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On 1/11/2022 at 6:02 AM, madpsych78 said:

Jana had a court date scheduled for January; since then, she pled guilty so court date didn't happen.

https://lawandcrime.com/celebrity/19-kids-and-counting-star-jana-duggar-gets-no-jail-time-after-pleading-guilty-to-endangering-the-welfare-of-a-minor/?fbclid=IwAR3Mi5Bqj6vzVom8Bg4fc1vTFS5US86pqxcpW_x7lwoUzDspEBrFDYqHxv8   jana has a hearing  rescheduled from 01/10/2022  to 12/06/22   so this is not over  the docket says it is resolved bt she has a court date

  in 11 months from now why is that??

   Also they downplayed it..it is a class B not a class A felony...and she fell asleep while watching children ....one very young one got out and wandered down the road

 

Edited by sue450
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48 minutes ago, merylinkid said:

"intermediate disposition."   if she stays out of trouble for a year (she pled in December) it all goes away.   

Yep. The December 2022 date is the court review to see if she fulfilled whatever conditions she agreed to - as @merylinkid said, basically staying out of trouble. 

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Josh and his attorneys have filed a motion for judgement of acquittal/new trial, which as I understand it, is not the same as an appeal.

You can read the filing here:

https://www.courtlistener.com/docket/59871253/131/united-states-v-duggar/

The defense argument, summarized, is:

1. You can't prove that Josh actually watched the videos, so you can't prove that Josh knew the videos depicted minors, thus you can't prove that he knowingly downloaded CSA.  

2. The government didn't disclose exculpatory evidence, which meant that

3. Josh was "effectively precluded" from calling Caleb Williams as a witness.

4. One of the government witnesses was not qualified to testify about geolocation data.

5. Therefore, the judge needs to either acquit Josh or order a new trial.

I will just note that based solely on this document, Caleb Williams - a convicted sex offender - apparently/allegedly refused to cooperate with the defense, and spent the trial sending unsolicited emails to the prosecution. He also, according to the defense, changed his story several times, and from his emails, it sounds to me as if he has some sort of grudge against the Duggars in general. 

Which doesn't make him sound like the sort of person the defense should have been calling as a witness.

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I’m certainly not going to imply that Caleb Williams is a good person.  But I do think there are different types of sexual offenders. I do not think that someone  who is guilty of Caleb’s crime can be assumed to also be interested or guilty of Josh’s type of crime. Different age groups of victims, different types of offenses.  Josh has been linked since early teens to offenses against multiple pre puberty girls.  The same age group as in the videos. My understanding ( limited that it is) of Caleb’s crime is that was against a specific teen female who was 13 or 14 when it started.  I’m not minimizing that offense- just pointing out that it’s different than Josh’s offense. 
I also don’t find it unreasonable that Caleb could have been repulsed by Josh’s crimes and therefore had no interest in testifying for the defense, while also  trying  to work a deal with the prosecution  to get off the sex offender registry. Although I doubt the Illinois prosecutors would have  budged on that. 

I would have a grudge against people that tried to blame me for their son’s crimes too. 


Therefore, I don’t see this motion as being of merit. 

Edited by mythoughtis
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Yeah. I'd agree that "admitting evidence of the prior allegations made my client look terrible and potentially guilty" is a considerably better argument than, "oh, there's a witness who is a convicted sex offender, refused to cooperate with us and continually changed his story who we didn't call to the stand so you have to acquit Josh or call for a new trial."

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WOACB says on her latest video that Anna and Austin had a blow-up a couple of months ago due to the fact that Anna was trying to put the blame on Carlin Bates (Joy's best friend).  (There was a phone call around the time in question to the car lot from the Bates about a car.)  WOACB is saying that Anna is trying to find someone, be it a Duggar, a friend, anyone, etc. to place the blame on in order to free Josh. 

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44 minutes ago, Gemma Violet said:

WOACB says on her latest video that Anna and Austin had a blow-up a couple of months ago due to the fact that Anna was trying to put the blame on Carlin Bates (Joy's best friend).  (There was a phone call around the time in question to the car lot from the Bates about a car.)  WOACB is saying that Anna is trying to find someone, be it a Duggar, a friend, anyone, etc. to place the blame on in order to free Josh. 

How would blaming Carlin free Josh? That’s ridiculous even by Duggar logic. Not doubting your reporting @Gemma Violet, but Anna’s thought process is more twisted than a pretzel.

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1 hour ago, Gemma Violet said:

WOACB says on her latest video that Anna and Austin had a blow-up a couple of months ago due to the fact that Anna was trying to put the blame on Carlin Bates (Joy's best friend).  (There was a phone call around the time in question to the car lot from the Bates about a car.)  WOACB is saying that Anna is trying to find someone, be it a Duggar, a friend, anyone, etc. to place the blame on in order to free Josh. 

Oh my. Miss Balls is all kinds of crazy. That explanation is so silly. A phone call from a Bates compels someone to download CSA? Or does a phone call from a Bates, bring on Homeland Security? And really, if Anna is trying to pin it on Carlin (can't stop laughing), wouldn't Joy be mad, more than Austin?

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3 hours ago, MargeGunderson said:

How would blaming Carlin free Josh? That’s ridiculous even by Duggar logic. Not doubting your reporting @Gemma Violet, but Anna’s thought process is more twisted than a pretzel.

Lol, I'm not the reporter--I just brought over what I saw on Youtube. 

I think Anna's desperate to target something or someone in order to introduce reasonable doubt into the appeals trial.  She is clutching at straws.

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11 hours ago, Gemma Violet said:

I think Anna's desperate to target something or someone in order to introduce reasonable doubt into the appeals trial.  She is clutching at straws.

I;m quoting you Gemma Violet, but this is not to pick on you.   I just want to use your quote to clarify something.   Because Anna probably doesn't know and a lot of people don't know.   An appeal is what is called "on the record."  that means it is just based on what went on at the trial court.   The appeal court reviews the record of the trial and decides based on issues raised by the appealing party and their arguments IF the lower court applied the law correctly.   It is not a trial.   There is no evidence and no witnesses presented.   It's all "The law says this, this happened in the trial below, therefore the judge got it wrong at the trial."   So you can't come forward and say "oh hey here is this new person we THINK did it, hence reasonable doubt."   So putting it off on Carlin Bates won't do any good at this stage of the mess.   

I can see Anna desperately trying to get someone to come forward and say they did it.  She thinks someone will throw themselves on their sword (now they that they know the Ebil Government Who Hates Christians actually does mean to put Joshie in real jail not Jesus Jail) to save the CHOSEN ONE.   Because DAMMIT, that's how its supposed to work.   She is NOT supposed to be in this situation.   He was the CHOSEN ONE.   

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1 hour ago, ginger90 said:

Can it also contain what may have been omitted due to a ruling?

Only if the issue was properly presented during the pretrial motions phase or at the trial.

For example, defense calls Mr. Squiddly to testify at trial, but prosecution objects to certain parts (or all) of the testimony the defense wants to present. The attorneys will have a "bench conference" with the judge - out of the hearing of the jury - on the issue. At that time, the defense lawyer will put into the record what they expect the testimony to be and of course their argument as to why it should be admitted. That's called "preserving the issue" by getting it into the record of the case. Then it can be a point for the defense to raise during the appeal. 

Another example, defense lists Ms. Righteous as an expert witness during the pretrial phase, the prosecution inquires as to her qualifications and the nature of the expert testimony she'd give. And objects - files a motion in limine to preclude the defense from calling her at trial. Same thing, but it happens before the jury trial: lawyers hash it out and the judge rules. But it's all in the case record, so the defense has preserved it as an issue to argue on appeal if the judge grants the prosecution's motion to prohibit or limit the testimony. 

At this point - between the jury verdict and sentencing - The Felon's case is pending the court's action on the defense motion for new trial or acquittal. The only kind of evidence that I think could be brought in right now, would be newly discovered evidence going to the issue of the fairness of the trial. The main one would be evidence of juror misconduct. Say, it's been discovered that one of the jurors lied about having been the victim of rape (had been but didn't disclose it when asked about that during jury selection). In a case like this I'd be surprised if that wouldn't blow up the conviction. (It actually happened in a state court case I tried as a public defender in the 80's. I won a motion for new trial, which as a newbie I didn't realize was such a big deal until I got back to the office and saw how amazed my colleagues were, lol.)

So, basically, if Anna's still thrashing around trying to find someone else to blame for the troubles of her [But I Have A] Husband™, the only thing she is likely to achieve is to p*ss off her friends and in-laws. 

And, thanks again to @merylinkid for explaining what appeals are all about. I noticed the "appeals trial" comment and didn't have the time or brain bandwidth to reply at that time. Anyway, you explain it better than I can!

Edited by Jeeves
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2 minutes ago, hathorlive said:

In my years of doing these cases, I've seen ONE asset forfeiture.  And that guy had the misfortune to inherit a house in a very rich part of town. I know KJ is saying he can be fined 500K, but I've never seen it.  I hope to see it, but I'm not holding my breath.  I would love for the judge to say that the numerous LLC's bears looking into and he needs a forensic account to take a look.  That would induce heart failure in JB.  I have no doubt his finances are as dirty as they come.

I doubt the judge has any knowledge of JB's LLCs, nor does he have any jurisdiction over JB's finances. Josh committed the crimes and he hasn't owned anything since the Ashley Madison scandal.

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