The Case of Missing Alabama Teen Natalee Holloway:
By JONNA SPILBOR
|Monday, Feb. 27, 2006|
I have a hunch Natalee Holloway is dead.
Why? Simply because it is my personal belief that girls with pompoms and college scholarships don't just disappear into thin air.
The world knows Natalee Holloway as the pretty Alabama teen who took a class trip to the island of Aruba from which she never returned. Natalee went missing on May 30th 2005 -- ironically, the very day the class was scheduled to return to the States.
To date, a massive, months-long search involving authorities from three countries (ours, theirs and the Netherlands), as well as a host of privately-run investigative agencies, has uncovered no trace of the girl.
And while the case strangely lacks any evidence of, well, anything - no body, no eyewitnesses to foul play, no incriminating DNA - it is not without its suspects. Three men are believed to have been the last to see Natalee alive -- brothers Deepak and Satish Kalpoe, and their buddy Joran van der Sloot - and all three admitted lying to authorities during the early stages of the investigation. Yet, all three still maintain their innocence.
I guess you could say the Aruban authorities, together with Natalee's loved ones, too, have a hunch.
They may not know how, why or what happened to Natalee Holloway, but to them, one thing is certain: Joran van der Sloot does know.
But van der Sloot's position can be summed in two words. Prove it.
Problem is, they can't. Not now, and maybe, not ever.
Understandably frustrated, the Holloway family recently filed a civil suit against Joran and his father, Paulus van der Sloot here in New York. In this column, I will discuss the merits of the suit, and also discuss the effect the suit - as well as Joran's own televised words - will likely have on the criminal investigation.
The Televised Interview, and the Service of the Complaint
In recent weeks, with no suspects in custody, no charges filed, and no new leads, it would appear to most that the investigation into the disappearance of Natalie Holloway had all but iced over.
But on February 16th, that seemed to change.
In a rather brazen and certainly unexpected move, Joran and his father traveled separately and quietly to the United States so that Joran could give a televised interview to the ABC News show "Primetime."
Little did they know that attorneys for the Holloway family were coordinating a rather unusual welcome.
Upon reaching America, Joran and his father were served with a civil summons and complaint. In the complaint, the Holloway family alleges that, while Natalee was visiting Aruba, Joran van der Sloot sexually assaulted her, falsely imprisoned her, and maliciously interfered with Natalee's custodial relations with her parents.
They also allege that Paulus caused "injury to a minor child" by allowing his 17-year-old son Joran to harm Natalee. (They claim that under Alabama law - the law they say applies - that Natalee, though 18, was still a minor at the relevant time.)
The lawsuit requests, among other sums, punitive damages.
But in reality, the Holloways probably will never get a dime.
The Problem with the Suit: No Apparent Basis for Subject Matter Jurisdiction
Anybody who follows high-profile criminal trials knows it's not unusual to see civil suits become the companions to criminal cases - whether the defendant is first found guilty in a criminal court of law, or not.
Indeed, O.J. Simpson and Robert Blake lost wrongful death lawsuits that had been brought against them following their criminal acquittals. Kobe Bryant reportedly settled a civil suit by his accuser, even after charges that he raped a Colorado hotel worker were dropped.
So, what makes the lawsuit against Joran and Paulus van der Sloot so unusual? It appears that the court in which it was filed, New York State court, lacks subject matter jurisdiction -- the authority to decide cases of this type.
Neither Natalee nor her parents, nor the van der Sloots, reside in New York. And none of the conduct alleged occurred in New York. Finally, according to the plaintiffs themselves, the law of Alabama - where the Holloways reside - is applicable.
In sum, there seems to be no answer to why a New York court should, or could, hear this suit. Moreover, even if the Holloways were to file a suit in a court that did have jurisdiction, they are very unlikely to get an answer to what happened to their daughter. Neither defendant could be compelled to testify in this civil suit, for that would likely violate their Fifth Amendment rights against self-incrimination.
What Is the Best Strategy for the Defendants in the Civil Suit?
Even though the New York court could dismiss the case on its own for lack of subject matter jurisdiction, it might not do so - simply because the issue hasn't been brought to its attention, and courts' dockets are full. If it doesn't, what are defendants' options?
They could move to dismiss the case. But it might be better for them simply to do nothing.
That way, the New York State court would likely grant plaintiffs a judgment by default. (A default judgment occurs when the defendant fails even to enter an appearance in the suit by filing a pleading to that effect, and thus loses his right to defend.)
If a default judgment were, indeed, entered, then the van der Sloots would, in theory. be legally obligated to pay plaintiffs whatever amount of damages the court (if it continued to overlook the jurisdictional defect) might award.
But only in theory: as with many civil judgments, the legal obligation to pay may not be worth the paper it's printed on.
In this case, it may be extremely difficult, if not impossible, to collect a judgment against a foreign national. Indeed, judgments taken by default in the state of New York are nearly impossible to collect, even against other New York residents. The Holloways could hire an Aruban attorney to try to collect, but it might still be very difficult.
And a default judgment has advantages: It could bar the Holloways from suing the van der Sloots in the future - even if one day evidence linking Joran to the disappearance of Natalee Holloway is discovered.
Double jeopardy works in the criminal arena by barring a person from being tried for the same crime twice, and civil law has a similar provision: The doctrine of "res judicata" - which literally translated means "the thing has been decided" - prevents a plaintiff from re-suing a defendant for the same wrongs once a decision in a civil matter has been rendered. Here, a new wrong will exist only if Natalee were to be proven to be dead: In that event, a wrongful death claim could be brought in a separate, future suit.
Joran Van Der Sloot's Television Interview: A Serious Mistake
In my line of work as a defense lawyer, the only thing more comforting than listening to a client professing his "innocence" in front of a camera, tape recorder, or bullhorn, is the prospect of his plunging a hot poker into my eye.
Even a truly innocent client can make statements that make him seem guilty. And a client who probably is guilty, on the existing evidence, can unwittingly, in his interview, offer the prosecution proof beyond a reasonable doubt.
So it was foolish for Joran van der Sloot simply to talk to reporter Chris Cuomo. And the details of what he said got him in even deeper trouble: For instance, he claimed Natalee was willing to have sex with him, but he was the one who said no -- because he "didn't have a condom in his wallet." Few seventeen-year-old boys would skip a trip to the convenience store in such a situation.
Why did Joran talk - when it was so risky to do so? I think there are two possibilities.
One is that he's guilty, but confident that Natalee's body will never be found - because he hid it well, and because despite many searches, it hasn't been found so far.
The other is that Joran is just as innocent as he professes - and that he did indeed leave Natalee alone on the beach where she, perhaps, fell prey to a stranger's opportunistic rape, a crime that ended in murder. Perhaps the real culprit was someone with a boat; perhaps Natalee's body was cast into the sea, much too far out to wash up on the shore.
Nine months, one civil suit and a TV tell-all later, and the only thing certain about the true fate of Natalee Holloway, is that it remains very much a mystery. For the sake of her parents, one hopes this crime will be solved - but realistically, they cannot expect their civil suit to do anything to expedite matters.
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