What is in the new Daybell Motions?

November 24, 2023

Hello Friends!

I hope everyone had a great Thanksgiving. We celebrated at home with new friends from the Boise area and had a wonderful day.

It's been a while since I've sent a newsletter because, as you know, I'm working hard on my book, but some new filings in Chad Daybell's case merit a deep dive.  Chad's team has filed several motions, all of which will be heard on November 29, 2023.

The first is titled Motion in Limine to Limit State to Consistent Arguments on Defendant's Relative Culpability.  The defense says that because the prosecution argued in Lori's case that she was the driving force behind the conspiracy, they should be limited to that argument in Chad's trial. They claim that due process and fundamental fairness require such a limitation. Daybell's team cites a US Supreme Court case, Bradshaw v. Stumpf 545 US 175 (2005), as standing for the rule that prosecutors can't take inconsistent positions in two separate criminal proceedings against two codefendants.  A closer read of the case proves that may not be what the case says at all.

When attorneys look for cases that support their arguments, they rarely find one that matches all of the facts in their case.  Such cases, if they can be found, are said to be “on point” or on “all fours” with their case.  The Stumpf case is far from on point with the Daybell case. To understand, we need to look at the facts of the Stumpf case.  Stumpf and his codefendant were accused of shooting a husband and wife they robbed, and they were tried separately. Stumpf contended that he only shot the husband, who survived, and that it was his codefendant who shot the wife, who died.  Later, however, Stumpf pled guilty to the murder of the wife, and his sentence was put before a penalty phase jury who determined he deserved the death penalty. After that, the prosecution received information that the codefendant had admitted to a cellmate that he was the one who shot the wife.  Based on that new information, at the codefendant's trial, the court concluded that the codefendant was the one who shot the wife, and he was sentenced to life with the possibility of parole for his role. The Daybell motion says, “However, while “express[ing] no opinion on whether the prosecutor's actions amounted to a due process violation or whether any such violation would have been prejudicial,” the Court held that the inconsistency MAY have influenced sentencing and thus reversed the sentence and remanded for further proceedings.”  If that seems like a somewhat tortured connection, it is. Lawyers are taught to lead with their strongest case, so it's a mystery why Prior led with this.  Sometimes, lawyers will lead with the least persuasive case to bury it under other cases that are more on point.

In this motion, John Prior also cites Thompson v. Calderon, 120 F.3d. 1045 (1997).  In that case, the prosecution argued that the defendant, Thompson was the person who committed the rape and murder of Ginger Fleischli. The prosecution later said that another person was the one who committed the murder. The defense argued that in the second defendant's trial, the prosecution had “discredited the very evidence that they offered” at Thompson's trial. The Supreme Court agreed, concluding that presenting inconsistent theories as to who committed the murder amounted to prosecutorial misconduct. The case differs from Daybell, and the prosecution can easily refute Prior's argument.  In both Stumpf and Thompson, the issue was which person committed the murders.  In Daybell, the state has admitted they don't know who carried out the murders and that it may have been Alex Cox, who is dead. If the prosecution were to claim now they had concrete information that Chad was directly responsible for all three murders, it would be analogous to Stumpf and Thompson.  Instead, we have a situation where the state is proceeding on an aid and abet theory, and there is ample evidence that all three, Lori Vallow, Chad Daybell, and Alex Cox, conspired to commit the crimes. In fact, it doesn't matter who actually committed the act that ended any of the three lives. The issue of who was the mastermind or who influenced who goes to motive, not to guilt or innocence, and as we all know by now, the state does not even have to prove motive.

The following juicy motion is Prior's Motion to Strike the Death Penalty Based on Relative Culpability. In this motion, Chad's team argues that since the prosecution argued that Lori was the most culpable party, and since she didn't get the death penalty, neither should Chad.  Again, let's look at the case law they cite.

First, Prior incorrectly cites the Sixth Amendment as prohibiting cruel and unusual punishment and then switches to talking about the Eighth Amendment. In fact, it's the Eighth Amendment that says, “Excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments inflicted.” To understand, we first need to define cruel and unusual punishment.  In 1983, the US Supreme Court, in Solem v. Helm, 463 US 277, said a sentence is cruel and unusual if it is disproportionate to the crime charged. That is measured by looking at the severity of the offense and the harshness of the sentence and comparing it with sentences imposed on others in the same jurisdiction. Nothing in the law suggests a comparison with similarly situated defendants, including codefendants.  It's important to note that in later decisions, the court walked back the rule in Solem, saying that a gross proportionality requirement would only apply in “exceedingly rare and extreme cases.” Vallow and Daybell are neither rare nor extreme.  In fact, the Vallow and Daybell cases are, unfortunately, of the most mundane quality.  

Lori didn't escape the death penalty because her attorneys argued she was less culpable than Chad.  Lori escaped the death penalty because the state screwed up and didn't provide all the necessary discovery within the judge's deadline. The judge could not postpone the trial because of speedy trial issues, so the judge fashioned the most reasonable remedy by dismissing the death penalty as to Lori.  Prior cites Larzelere v. State, 676 So.2d394 (Fla. 1996) as holding “when a codefendant (or coconspirator) is equally culpable or more culpable than the defendant, disparate treatment of the codefendant MAY render the defendant's punishment disproportionate.”  First, it's important to look at a bit of lawyer-speak.  In the law, the word MAY means the issue is discretionary.  Shall or will mean there is no discretion.  So, take note of the word MAY in the holding Prior cites.

It's also noteworthy that Prior cites cases from states other than Idaho. Courts always give precedential treatment to cases from their own state or federal circuit.  The fact that Prior has resorted to citing case law from other states suggests an absence of relevant cases supporting his side within Idaho. Ultimately, I think this argument also fails because the question is not who was more culpable. The prosecution has never argued that one is more culpable than the other.  Their argument that Lori was the mastermind simply goes to prove motive.  Under the aid and abet theory, they are all equally culpable. While sentencing Chad to the death penalty may be disproportionate to the sentence Lori received, it is not overly disproportionate to the crime Chad is charged with. If Chad goes to trial and is convicted, in the penalty phase, the jury MUST either find for life without parole or death.  This is a last-ditch effort by the defense to get the death penalty off the table and allow Chad to take his chances with a jury the way Lori did. I continue to believe that Chad feels he is substantially less culpable. (Although how he explains Tammy's death in his home when only he and Garth were there, I don't know.)  I think he hopes that if the death penalty is off the table, he can convince a jury he was simply an innocent dupe being led around by the manly bits (or, as he called it, “the storm”) (and ick, just ick, by the way). I think Chad hopes that if the death penalty is off the table, and he gambles at trial and loses, he might at least get away with a sentence that would include parole. I am sure the state has offered him the same sentence as Lori – life without the possibility of parole. I have heard repeatedly that plea negotiations are going on between prosecutors and Chad's team, and if, as I expect, the judge denies both these motions, there will be more pressure on Chad to take that deal.

Another of the pending motions is the motion to permit cameras in the courtroom. There have been some developments that might influence Judge Boyce's decision.  First, John Prior and his client want cameras in the courtroom. They argue that cameras will ensure transparency and fairness.  Second, a ruling in the Bryan Kohberger case could come into play.  In Kohberger (who is accused of murdering four University of Idaho students), as in Lori's case, both the prosecution and the defense oppose cameras. In a hearing last week, the Kohberger judge denied the media's motion to intervene and be permitted to provide pool coverage of the case.  However, the judge ruled that all future proceedings will be live-streamed on the judge's YouTube channel.  We can only hope the court improves the microphone situation in the courtroom, but otherwise, it seems like a fair compromise.  As in the Leticia Stauch trial, stationary, non-zoomable cameras will offer a wide view of the courtroom and the witness box. In the Kohberger motions, the defense and the prosecution both cited the decisions in Lori Vallow's case. With John Prior supporting a livestream of the trial, we may see a different outcome than the ruling in Lori's trial. We will know on November 29, 2023, when Judge Boyce will hear all the pending motions.

The prosecutors have also filed a couple of motions in Daybell.  They have asked the court to return the Daybell trial to Fremont County. They, of course, cite the cost of trying the case in Boise and say it will be a hardship for the small county.  I think this motion fails.  The court ordered the change of venue to protect the defendant's right to an unbiased jury.  If anything, the publicity has increased because of Lori's trial. Judge Boyce and the Ada County court are already deep into planning for the trial in April, including applying the lessons learned during Lori's trial. The judge has indicated that jury questionnaires will be distributed two weeks before, and jurors will begin selection immediately after that so the trial can start on April 1, 2024, as planned.

The prosecution has also moved to amend the indictment to correct the error that came to light during Lori's trial, and I expect the judge to allow it. Finally, they filed an odd motion asking the judge to “confirm there is no court order restricting contact” between Lori and Chad.  It appears this motion is because the defense has renewed their request for Lori and Chad to confer, and the jail asked for clarification on what they can and cannot allow. This adds credence to my suspicion that plea negotiations are still occurring.

All these motions will be heard on November 29, 2023.  However, if Judge Boyce runs true to form, he will likely take the more complex ones under advisement and issue written decisions within a few days. That's advisable because the judge needs to record his thought process and decision for any possible appeals.

I doubt I will attend the hearing in person. Rexburg is about a six-hour drive from Boise, and the weather can be unpredictable.  While my car has all-wheel drive, and I'm proficient driving in ice and snow (I even took skid-car training several years ago in Bend), I've tried to limit my winter trips to times when it's necessary for the book.

I hope this helps explain the upcoming motions. Stay tuned to see what the judge decides. 

Newsletter

September 4, 2023

           Hello, Good Friends of the Good Lori! It's been a minute since I've written a newsletter! There's a good reason for that – I'm writing every day on my book. I would say I'm about halfway through. I have promised my publisher a first draft by the end of the year, so I'm working on it nearly every day. 

           There are some EXPLOSIVE filings in both Vallow and Murdaugh. Although we will be talking about these developments on my YouTube channel tomorrow at 6 pm Pacific Time (here's the link - https://youtube.com/live/qc1fYuy0t38), they warrant a deep dive for those of you who enjoy getting in the weeds with me.

First, Lori Vallow's attorney, Jim Archibald, has filed her Notice of Appeal. He cites 16 different grounds for appeal, and I want to review each. Next, Alex Murdaugh's attorneys have filed a motion for a new trial, alleging some explosive new evidence. Let's talk about Lori first. 

           As you may recall, John Thomas has already withdrawn from her case. Jim Archibald has asked the court to appoint an appellate attorney to continue Lori's appeal, and I expect Archibald will withdraw soon as well. Before we dive in, let's remember that to bring an issue up on appeal, you must have objected to or otherwise raised the issue at trial or in pretrial motions. Here are the claims as Archibald outlines them in the motion.

1. The court made a mistake in finding Lori was competent after her ten months in a mental hospital. Each time the judge made determinations about Lori's competence, he did so after considering the opinions of experts. It's common for both sides to have evaluations and common for experts to disagree. When the experts disagree, the judge must decide which expert he finds more credible. In this case, it was clear that an expert initially determined Lori was incompetent. At some point, the experts then decided she was restored to competency. Like all mental health diagnoses, there is an element of subjectivity. No CAT scans or MRIs can determine when a person is restored to competency. If the judge relied upon a competent expert in deciding that Lori was restored, I don't believe the Supreme Court would second guess that decision.

2. The court made a mistake in denying the defense expert's request to send Lori back to the mental hospital rather than proceed to trial. As you might recall, on October 3, 2022, the defense filed a motion to continue the January 9, 2023, trial because of concern that Lori was not competent. The judge, once again, issued a stay while Lori was evaluated and took the January trial date off the schedule. Following that evaluation, the judge issued an order on November 15, 2022, finding that Lori was competent. The defense claims Judge Boyce ignored their expert's recommendation that Lori be returned to the mental hospital.

3. The court made a mistake by violating Lori's speedy trial rights by granting the prosecution's repeated requests for continuance. Most of the continuances were within the speedy trial window. The reason that is true, despite the ten-month delay for Lori's treatment, is because the time the case was stayed because Lori was incompetent doesn't count for purposes of calculating speedy trial.

4. Did the judge violate Lori's speedy trial rights with the April 3, 2023, trial setting? This is probably the best argument for a new trial. The court and the prosecution acknowledged the date was 41 days past the speedy trial deadline but said he found there was good cause to do so. The Supreme Court will have to determine whether the difficulty of scheduling with Ada County is sufficient good case. It was likely a mistake on the judge's part to postpone the January 9 trial date trial so quickly, particularly since scheduling with Ada County was required. However, Once the trial was canceled, the court had to work with the Boise court to reschedule.

5. Did the court make a mistake in refusing to dismiss jurors who claimed hardship during jury selection? This is strictly a court determination. The judge did excuse some and not others. I doubt this challenge goes anywhere.

6. Did the prosecutors commit fundamental reversible errors in their opening statements and closing arguments to the jury? This initial document doesn't give specifics of the objected-to language, so it's impossible to tell at this juncture whether these claims are colorable. I'm sure they will be fleshed out in the defense's opening briefs.

7. Did the judge make a mistake in permitting evidence under Rule 404(b), and did the court further make a mistake by allowing the prosecution to exceed the scope of the judge's order on 404(b) evidence? As I'm sure you recall, this refers to the rule of evidence 404. This rule excludes information about a person's character, including other bad acts they may have committed, coming in to show the person acted in conformance with their character. The rule does allow for information to come in to prove motive or a common scheme. The issue in the Vallow trial was whether the evidence of Lori's possible involvement with the murder of her fourth husband, Charles Vallow, or the attempted murder of her niece's husband, Brandon Boudreaux. The rule also allows all information to come in once one side “opens the door.” First, they are challenging the court's ruling in allowing the 404(b) evidence in at all, and then, in the alternative, saying that even if the Supreme Court finds Judge Boyce was right to let it in, what came in during the trial exceeded the scope of what Judge Boyce said was allowable.

8. Was the judge mistaken when he allowed the prosecution to amend the grand jury indictment during the trial, two years after it was filed, and without sending it back to the grand jury? I think this is the other colorable objection. The defense tried to challenge the indictment several times. In the alternative, they asked the judge to order the prosecution to give the defense a bill of particulars. This was all in an attempt to get the prosecution to correct their indictment so the statutory citations actually matched the language of the statute they were citing.

9. Did the judge make a mistake in allowing the jury to hear statements of co-conspirators but then give the jury instruction that the government did not need to prove the other people were co-conspirators? Further, was the jury instruction wrong where Vallow was charged in the indictment with a conspiracy involving five people, but the jury was instructed using the standard instruction that the defendant need only conspire with one other person. Errors in jury instructions are a fertile source of appellate issues.

10. Did the judge make a mistake in granting the prosecution's objection to the judge reviewing all the sentencing mitigation evidence the defense submitted without a hearing? This could be a novel issue. The state performed a pre-sentence investigation. Typically, such a report includes evaluations of the defendant, including mental health evaluations and other risk assessment tools that give the judge a better picture of the defendant's situation. However, Lori categorically refused to participate. This was problematic for the defense because her lawyers wanted the judge to consider her mental health condition and other mitigating circumstances. They tried to get the information to the judge by submitting hundreds of pages directly to the court. The prosecution objected, and the judge agreed. Because Lori had refused to participate, the judge only considered around 50 pages of her most recent psychological evaluations instead of the hundreds the defense wanted him to see.

11. Did the judge abuse his discretion in sentencing Lori to three consecutive fixed life sentences? This is unlikely to go anywhere because the defense must prove that Judge Boyce abused his discretion – that is, he did something outside of the authority given to him by the law. The statutes clearly gave him the authority to impose the sentence, and he went carefully through all the factors he considered on the record.

12. Did the judge abuse his discretion in ordering $165,081 in fines and court costs because Lori Vallow is indigent? Again, I think this one is a nonstarter. Judges can, and usually do, impose fines well over what a defendant can pay. They do this, understanding that the fines are unlikely to ever be paid in full, but to ensure that the victims and the court are paid first if the defendant comes into a windfall.

     The appeals process is a long and winding road. First, the defense will need written transcripts of EVERY pretrial hearing and six-week trial. It could take more than a year to procure the transcripts. Creating written transcripts is a laborious process requiring hundreds of hours of transcribing, checking, and double-checking by a certified transcriptionist before the transcript can be certified. Once the transcript is received, the defense must write their opening brief and submit it to the court. Again, it could take months to analyze the transcripts and then formulate and research all the issues. The prosecution will have time to respond with a rebuttal brief, and each side may also be able to file surrebuttal briefs.

Appellate work is a specialty. The public defender will appoint appellate attorneys for Lori, and the Idaho Attorney General's office will provide appellate lawyers for the prosecution. In the meantime, Lori faces charges in Arizona relating to the murder of Charles Vallow and the attempted murder of Brandon Boudreaux. Arizona has requested Lori's extradition, and the Governor of Idaho has said he will approve the warrant. It's unknown whether Lori will contest the extradition or not. The only thing she can contest is to force the states to prove she is the person listed in the Arizona warrant. If she contests, an identity hearing will need to be scheduled. Either way, the processing will take some time. Once she is approved to be transported to Arizona, the trip could take weeks if she is transported on the usual prison transport circuit. Prisoners are loaded onto a prison bus (not a cushy motorcoach - think ConAir or The Fugitive), then the bus makes a circuit through the western states, picking up and dropping off at every jail and prison along the way and stopping overnight in temporary prison holding cells. Each new jail or prison requires prisoners to be strip-searched and in-processed. It's a far cry from her flight from Hawaii or her flight on the Governor's plane from Boise to Rexburg when she was first arrested. 

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            There is also big news in the Alex Murdaugh case. The news, if true, is disturbing and discouraging. Today, Murdaugh's defense team filed an explosive motion to suspend their appeal and seek a new trial. They allege the clerk of the court, Rebecca Hill, commented to the jurors about the reliability of the evidence and whether Alex Murdaugh's testimony was credible. They also claim the clerk told the jury they could not take cigarette breaks until they reached a verdict. Becky Hill wrote a book about being behind the scenes during the trial. The book was recently released, and she has been making press appearances to market the book. 

           The clerk of the court has a very important job. She is an elected official who takes an oath to protect the Constitution and the court's fairness. She ensures the courtroom runs smoothly and considers the jurors' security and comfort. The Murdaugh team's affidavit alleges that Hill instructed jurors not to be “misled” by the evidence presented by the defense and not to be “fooled” by Alex's testimony in his own defense. They claim Hill had many private conversations with the jury foreperson. During the trial, they say Hill asked the jury for their impressions on Murdaugh's guilt or innocence, and they claim she invented the story about a Facebook post to remove a juror she thought might not vote to convict. Throughout the trial, the six members who were smokers were allowed to take cigarette breaks. Still, once the case was turned over to the jury for deliberations, they were told they could not smoke until they reached a verdict, but that, in Hill's opinion, it “shouldn't take them long.” The defense claims she did all these things because she hoped for a book deal, and a hung jury would have interfered with that plan. 

           On the day the jury visited the Moselle property, where the murders occurred, Hill writes in her book that everyone there could see that Alex's story was impossible. She said she exchanged looks with the law enforcement officers and jury members that made it clear they all knew Alex was guilty. On the day of the verdict, Hill conversed with a juror who was later dismissed because of the purported Facebook post. Before her dismissal, Hill allegedly asked the juror what facts she was still questioning. The juror told her that while Paul's video was convincing, she wondered why the murder weapons had never been found. Hill told her that everything Murdaugh had said was a lie and not to get hung up on the guns, that they would never be found. Hill then is alleged to have said, “Just go in and ask for a raise in hands, and this will be over and done with,” and that “everyone needs to be on the same page.” According to jurors, Hill told them they would be famous and even handed out reporters' business cards. She appeared on the Today Show with some jurors and got her book deal.

A film crew had negotiated a contract with the Colleton County Sheriff to provide security and permit them to film in the courthouse on a court holiday. After Hill got her book deal, she attempted to renegotiate the agreement to require the film crew to pay for the use of the courthouse and to feature her book cover in the film. South Carolina Code § 8-13-700(A) says, “No public official, public member, or public employee may knowingly use his official office, membership, or employment to obtain an economic interest for himself . . . .”

South Carolina law is clear that if there is third-party contact with jurors, the defense is entitled to an evidentiary hearing. The defense points out that the issues they present in their motions are not ordinary or inevitable mistakes that arise in a trial. Instead, they argue, "The issue here is that an elected state official engaged in intentional misconduct—deliberately violating a defendant's constitutional right to a fair trial before an impartial jury—to secure financial gain for herself.” They may very well be right because the U.S. Supreme Court has ruled that the right to confront and cross-examine any witness who provides evidence to the jury is violated when a third-party contacts jurors and expresses opinions. A career elected court official surely knew better, so we can only conclude that she knew what she was doing and was furthering her own ends. 

           This is another fascinating wrinkle in a case that has more of them than Dick Harpootlian's linen seersucker suit. Stay tuned for more. 

Lori Vallow Sentencing Deep Dive

Hello, my Good Friends! It's been a while since I've sent out a newsletter, but Lori is being sentenced tomorrow, and it's time to take a deep dive into Idaho sentencing.

Personal Update. It's been a busy year so far for me, and likely to remain busy for the remainder. Of course, Lori Vallow's trial began in early April. My daughter (and only child) was married in early May. In fact, the verdict in Lori's case came in while I was at her bridesmaids' brunch! The wedding was perfect and beautiful. I had the honor of officiating and it was a precious experience. In mid-June, I had the hip replacement surgery I'd been putting off for more than a year. Those of you who watch the YouTube channel know how apprehensive I was about it, but my recovery has been nothing short of remarkable. I'm hoping to be back to kayaking and taking long walks soon. Of course, there's also that small issue of writing a book. I've promised my publisher a first draft by the end of the year and I'm DEEP into it. I'm happy with the way it's coming together but admit that after a full day of working on the book, it's hard to sit down and write a newsletter. Still, sentencing can be pretty confusing, so now is an excellent time to get into it.

Idaho Sentencing. There are two types of sentencing schemes, determinate and indeterminate. Many states instituted determinate sentencing in the late 1980s and early 1990s. It was a time when there was a push for tough-on-crime measures, including mandatory sentences for violent crimes and drug manufacturing. It was also during this period that many states instituted strict controls on the precursor ingredients for methamphetamine including pseudoephedrine. Arizona, where Lori will face charges for conspiring to murder her fourth husband, Charles Vallow, has a determinate sentencing structure, meaning Lori will face a mandatory sentence of life with parole available after 25 years if she is found guilty. The Arizona judge will not have any discretion to deviate from the sentence. Conversely, Idaho, where Lori will be sentenced tomorrow, has an indeterminate sentencing scheme. These types of sentencing rules give judges wide latitude in fashioning a sentence.

Under Idaho Statute 18-4004,

18-4004. PUNISHMENT FOR MURDER. Subject to the provisions of sections 19-2515 and 19-2515A, Idaho Code, every person guilty of murder of the first degree shall be punished by death or by imprisonment for life, provided that a sentence of death shall not be imposed unless the prosecuting attorney filed written notice of intent to seek the death penalty as required under the provisions of section 18-4004A, Idaho Code, and provided further that whenever the death penalty is not imposed the court shall impose a sentence. If a jury, or the court if a jury is waived, finds a statutory aggravating circumstance beyond a reasonable doubt but finds that the imposition of the death penalty would be unjust, the court shall impose a fixed life sentence. If a jury, or the court if a jury is waived, does not find a statutory aggravating circumstance beyond a reasonable doubt or if the death penalty is not sought, the court shall impose a life sentence with a minimum period of confinement of not less than ten (10) years during which period of confinement the offender shall not be eligible for parole or discharge or credit or reduction of sentence for good conduct, except for meritorious service. Every person guilty of murder of the second degree is punishable by imprisonment not less than ten (10) years and the imprisonment may extend to life.

This means the minimum sentence Judge Boyce could impose is life in prison with the possibility of parole after ten years. This does not mean he has to impose that sentence. He could order Lori to serve much more, so let's break it down. The underlying sentence is life in prison. The only question is whether the judge will order life without the possibility of parole (LWOP) or whether he will permit parole after some fixed period. According to a report by The Sentencing Project, in 2020, the state of Idaho had 521 inmates serving a life sentence with the possibility of parole, 130 inmates serving life without parole, and 22 whose sentences were structured such that they would not be eligible for parole in their lifetime. Remember, Lori was found guilty of three separate and discreet murders on three separate incident dates. That means the sentences do not merge. The judge could order either that the sentence for each run concurrent (at the same time) or consecutive (one after the other). The maximum sentence for the murder charges could be three consecutive LWOP sentences. The minimum could be three concurrent life sentences with the possibility of parole in ten years (meaning she would only serve ten years before she was eligible for parole because all three sentences are running at the same time).

So what factors go into the judge's decision? Idaho Statute 19-2521(2) tells us there are many factors that the judge can consider and that each sentence should be specifically tailored to each defendant. The judge has received a report from a pre-sentence investigation and will carefully consider the information he has been provided in the report. A few factors from the statute that are relevant to Lori are, (d) There were substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense; (g) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime. Pre-sentence investigations are thorough and in-depth. They should be only slightly less in-depth than the work a mitigation specialist would do on a death penalty case. The investigation looked at Lori's entire life, her education, job experience, relationships, and of course, her medical and mental health history. While her mental condition was used as a defense in the guilt phase, it is a factor in sentencing, and the judge will have to decide whether there were substantial grounds tending to excuse or justify Lori's criminal conduct. The judge also has to consider factors in Idaho Statute 19-2521(3) that weigh in favor of imprisonment, including (a) There is undue risk that during the period of a suspended sentence or probation the defendant will commit another crime harmful to another person; (b) A lesser sentence will depreciate the seriousness of the defendant's crime;

(c) Imprisonment will provide appropriate punishment and deterrent to the defendant.

So now it's time to gaze into the crystal ball and make a semi-educated prediction. Since the PSR is confidential, we can only speculate on its contents but must assume it includes a complete review of Lori's upbringing and any influences on her attitudes about being law-abiding. Remember, her father, Barry Cox is an extremist, who does not recognize the government's right to dictate citizen conduct, and believes the Internal Revenue Service should be abolished. The PSR will also include any evidence of past trauma, and all information about her religious beliefs, her mental condition, and how each informed the other and contributed to her crimes. Armed with all that information, I believe Judge Boyce will sentence her to three concurrent sentences of life in prison with the possibility of parole in 25 – 30 years. Until that time, she would not get any credit for good behavior or be able to shorten that period by participating in prison programs, but he would get credit for the pretrial time she has already served. Lori just turned 50, so under that sentence she would be eligible for parole when she is 72 or 78 years old. The remaining financial charges will run concurrently with the life sentences. Some other considerations might sway the judge in this direction. Chad is still facing the death penalty in a trial scheduled to begin on April 1, 2024. I am sure both sides are waiting to see what sentence Lori gets before considering if Chad will take a plea deal. If the state offers something similar, he will probably take it to avoid the death penalty. That benefits everyone. The state doesn't have to bear the financial burden of yet another high-visibility trial or years of appeals, and the families get certainty. Additionally, the families will finally be able to lay Tylee and JJ to rest.

Of course, it is possible I'm wrong and the judge will give her life without parole. Like everyone else, I'll be earnestly watching the live stream. Many creators are carrying the stream, but you can also watch it here on Judge Boyce's YouTube channel: https://www.youtube.com/@JudgeStevenWBoyce. I won't be traveling to Rexburg/St. Anthony for the sentencing. Six hours of driving is a long trip on a newly replaced hip, not to mention getting in line in the wee hours to get a seat. I will be going live on Monday, right after the sentencing is over. Here is that link: https://youtube.com/live/pnipaZCHpvQ Gigi McKelvey is in Rexburg and will be broadcasting from there. Here is the link to her channel https://www.youtube.com/@PrettyLiesAndAlibis

Thanks again to all of you that sent good wishes to me for my daughter's wedding and a quick recovery from surgery. I appreciate you all so much! 

Second Week Trial Recap

April 16, 2023

It's been a full week. Here is your update on this week in the Lori Vallow Daybell trial.

TRIGGER WARNING – THIS NEWSLETTER CONTAINS GRAPHIC CONTENT.

First, a description of the general layout; the courtroom is on the fourth floor. The overflow room is in the County Commissioners chambers on the first floor. The trial is broadcast on a live feed from the courtroom to a big screen in the overflow room. It's also being broadcast to a courtroom in Madison County. The live video is not stored and can't be accessed later. The trial exhibits are projected on a screen in the courtroom and can be seen by everyone in the room. The exhibits are also shown in the overflow spaces. The main courtroom seats about 75 people in three sections. The center section and the first two rows of the side sections are reserved for family and witnesses. The audio recording of the trial is released each afternoon after the close of that day's proceedings.

As you walk into the courtroom, the judge is on a raised dais directly before you. To the far right is the jury box. The witness box is to the judge's right, and the screen where the evidence is projected is to the right of the witness box on the wall, where the jury has a good view of both. The prosecution's table is in the center, facing the judge. The defense table is turned perpendicular so it is facing the jury. I've done the quick sketch above to illustrate.

You may recall a question about who could be in the courtroom if they were subpoenaed as witnesses. Generally, if you appear as a witness, you must wait outside the courtroom until you testify. However, there is an exception to that if you are a victim. Judge Boyce ruled that Kay Woodcock was a representative for JJ but that her husband, Larry, was not immediate family and would have to remain out of the courtroom until after he testified. The prosecution decided they would not call Larry as a witness, so he has been in the courtroom since Monday morning.

Monday, April 3, 2023, jury selection began. The public was only permitted in the public overflow room.

Jury selection took all of the first week. The judge brought the jury in groups of fifteen, and the judge and all the lawyers were permitted to examine them. They reviewed the jurors' answers on a lengthy jury questionnaire, and after much questioning, the pool was whittled to 42 people by Friday. On Friday morning, each side was permitted 12 peremptory challenges. Peremptory challenges, sometimes called strikes, do not require that the attorney give a reason for disqualifying the juror. The process takes place in silence. Each side writes the number of a juror on paper, and it is shown first to the opposing counsel and then to the judge. In the end, the jury does not know which side struck them. When all the peremptories were done, the remaining 18 jurors were given some initial instructions, and the court adjourned. The court has not designated who will be on the deciding jury and who will be an alternate. All eighteen will hear and see all the evidence. Once the case is finished and ready to go to the jury, the judge will draw lots to see which jurors will deliberate. This assures that all jurors attend and pay attention to all the proceedings.

The judge announced that the trial would begin each day at 8:30 am and end at 3:30 pm with two short breaks and one 45-minute lunch break. The court has sealed the witness lists, so the gallery doesn't know who the witness will be until they are called.

Monday, April 10, court was delayed by a technical issue but began shortly after 9 am. The clerk called roll for the jury and swore them in. The clerk read the indictment to the jury, and Fremont County Prosecutor Lindsey Blake began with the state's opening statement. “Money, power, and sex. That's what this case is about.” Blake said Lori used money, power, and sex to get more money, power, and sex. Tylee had money, Blake said; Lori wanted that money, and Tylee was gone. JJ was a young child who took a lot of attention, which took away from Lori's time with Chad Daybell; soon, JJ was gone. Then, when Lori wanted Chad Daybell to herself, and they wanted Tammy Daybell's insurance money, Tammy was gone.

Blake illustrated her opening with a few photographs, some of which were graphic. Blake said Tylee's DNA was found on tools in Chad Daybell's shed. Lori moved Tylee's money from Tylee's account to her own in mid-August. Blake explained that the case began when Lori traveled with Melanie Gibb and Zulema Pastenes to St. George, Utah, for a Preparing a People Conference. Melanie was acquainted with Chad from other conferences, but this was Lori's first meeting. Their connection was instantaneous. Lori had read Chad's books and shared common beliefs about the end times. Chad told Lori he believed they had been married in former lives. They began communicating regularly, and three weeks later, when Chad traveled to Arizona for another conference, he stayed at Lori's house. Blake explained Chad's light and dark ratings.

Lori watched intently through Blake's opening. When Blake began talking about Lori believing she was a translated being, she started rocking side to side in her swivel chair.

To call the defense's opening statement lackluster is an understatement. In his slow, monotone cadence, Jim Archibald took to the podium and thanked the jurors for their service. He told them he was court-appointed and so paid by the taxpayers, then thanked them for paying their taxes. He said sometimes people don't like him for what he does. In fact, eight years ago, someone bombed his office. Next, he told the jury about Lori's life and her family. He said she was one of six children, and her older sister and brother had died. He said she believes in life after death and believes “she will see her deceased family, including her children, again.” He said she is a wife, mother, and grandmother and that people were drawn to her outgoing personality. He told the jury the evidence would show Lori had a “particular interest in religion. In the end of times. You'll recognize the quote unquote end of times as something spoken about in the Holy Bible.” He said her beliefs began to “morph and change once she met Chad Daybell.” He then went over the indictment and the idea of conspiracy. Next, he went over the charge of conspiracy and wondered whether in the murder charge did she aid and abet, advise or encourage it, or command another?” “Did she assist somehow? Or not being present, did she advise and encourage it to happen, or by command compel another? So, the charge is, did she kill, or did she assist, or did she encourage, or did she command? In other words, they are saying they're not sure what happened, but they want you to be sure.” Archibald talked about reasonable doubt and reminded the jury that Lori is innocent until the prosecutor proves her guilt beyond a reasonable doubt.

A good defense opening statement should give the jury a reason to listen carefully and look for reasonable doubt. It's not enough to simply drone on about the law.

After opening statements, the prosecution began calling witnesses. The first witness was JJ's grandmother, Kay Woodcock. The prosecution walked her through the story of JJ's birth and his adoption by Charles and Lori Vallow. Kay talked about her early relationship with Lori, saying “Lori was a doll.” As she talked about her close friendship with Kay, Lori could be seen nodding. Lori and Charles encouraged Kay and Larry's relationship with JJ. At one point, Lori made JJ a photo album of the family, including Mawmaw and PawPaw. Kay said Charles worked hard, but when he was home, JJ was the center of his world. Kay described the deterioration of Charles's and Lori's marriage, and Lori's strange behavior in early 2019. She touched briefly on Charles's death in July 2019. Kay explained that she had access to Charles's computer and discovered that in early October, Lori was shopping for wedding rings and beach wedding dresses. It was the Amazon order of two silver and malachite wedding rings on Charles's account that finally provided Kay with an address in Rexburg for Lori and the children.

The second witness was Brandon Boudreaux. Brandon testified that Lori was like a second mother to his wife, Melani Cope Boudreaux. Melani is the daughter of Lori's deceased older sister, Stacy Cox Cope. The families were close and saw each other frequently. Brandon and Charles Vallow were good friends. For years, Brandon was the one who had to talk Melani into going to church. After Melani began her involvement with Lori and her friends, she began going to the LDS temple very often. She began attending what she called “Firesides.” These were talks about religious subjects held in people's homes. However, these were not church-sanctioned events. Neither Charles nor Brandon were invited to those events. Things began to change in late 2018, and Brandon could see the situation deteriorate between Lori and Charles. “Things went from zero to a hundred really quick,” he said. The Vallow's problems began to spill over into the Boudreaux marriage as Melani began to accuse Brandon of things Lori had seen in visions. She said Brandon hacked into Lori's computer, then told Melani Brandon was gay. The unrest culminated in Brandon being shot at on October 2, 2019. It was Brandon who drove the 12 hours from Gilbert, AZ to Rexburg, ID when he was told the children's bodies had been found. Once he arrived, he went immediately to checked on Kay and Larry Woodcock at their hotel and insisted that he be the one to identify JJ's body, so that Kay and Larry would not have to.

TRIGGER WARNING: GRAPHIC CONTENT. The next witness was lead detective, Ray Hermosillo. Hermosillo walked the jury through his entire investigation of the case, starting in October 2019 with the request he received from the Gilbert, AZ police to locate a Jeep with Texas plates that had been involved in the attempted shooting of Brandon Boudreaux, to the discovery of the children's bodies in June 2020. The day ended with Hermosillo still being questioned on direct examination by the prosecution.

Tuesday April 11, 2023. Det. Hermosillo continued on direct examination, and we move into the scene in Chad's backyard. During Hermosillo's testimony the prosecution offered some graphic photos. The first photos documented the excavation of the grave sites. Hermosillo testified that JJ's body was found wrapped in black plastic and duct tape and a photo was shown. A few photos were offered of the dig site where Tylee's body was found, and a photo of some of her remains was shown. The proceedings broke for lunch.

When court resumed, it was clear something was afoot. Lori's attorneys came in, said that she had just been brought back in, and asked for time to talk to her. She was standing with her arms folded and her head down. They took her out of the courtroom and back into chambers. A few moments later, the defense attorneys came out and asked the prosecutors to join them. After a few more minutes, the bailiff said there would be an additional 30-minute break. The gallery was buzzing. Are we looking at a possible plea, or perhaps another mental health crisis?

The prosecution team came back in, appearing earnest and somewhat stressed, and the victim advocate whispered in the ear of each family member. Kay and Larry both looked upset. When Lori returned to the courtroom, her arms where crossed and she was looking down. Her face was flushed. Her attorney, John Thomas also looked flushed and tense.

As court resumed, the judge says a legal issue has arisen that the judge took it up with counsel and needs to argue outside the presence of the jury. The jury files out, and John Thomas announced that Lori has asked to have her presence waived for the rest of the day because she doesn't want to see the explicit photos. The judge considers the arguments and says, the State and the victims have the right to have her present. Ultimately the judge rules that she has to be present. Lori looks angry, and keeps her arms folded tight against her chest. Later in the afternoon, she appears to fall asleep.

When Hermosillo's testimony continues, it's punctuated by photographs. It's hard to get a sense of how much tape there was on JJ just from his description. JJ's body was wrapped in a black plastic bag. Inside, his arms, feet and head are completely obscured by layer up on layer of silver duct tape. On his small form, he wears the same red pajamas he was seen wearing in the last photo taken of him on the night of September 22, 2019. Hermosillo recounted the process of removing JJ's body from the grave, putting it in a locked body bag, and taking it to the morgue at the local hospital.

Hermosillo was also involved in the excavation of what was left of Tylee. He said they began by sifting the ash in the fire ring, where they recovered shards of bone and teeth. They later discovered masses of charred flesh with bones protruding. The deputies took turns digging with small trowels and paint brushes. They could each only stay on the dig for a few minutes at a time because of the overwhelming smell. Eventually, the recovered a melted green bucket that had been full of Tylee's remains. Underneath, they located her partial skull and jawbone.

Many of the jury were noticeably upset and several wiped their eyes. Some looked angry. One of them stared at her with an expression that can only be described as absolute contempt.

Hermosillo accompanied the bodies to Boise, where they were examined by the Ada County Medical Examiner. Hermosillo described the condition of JJ's body as it was unwrapped from layers of duct tape. As he discussed how he identified JJ, the state offered a close up of JJ's face taken during the autopsy. While the skin was discolored by decomposition, the face was still clearly recognizable. Kay Woodcock was not in the courtroom during this portion of the testimony, but Larry was. He sobbed quietly during this part of Hermosillo's testimony, and doubled over his knees when the image of JJ's face was shown. The medical examiner determined he could not perform the autopsy on Tylee's remains and she was later sent to the FBI crime lab.

Wednesday, April 12, 2023. The court began with an announcement that the prosecution had a problem that would result in an early adjournment today and no court on Monday, April 17, 2023. People in the gallery noted that Prosecutor Lindsey Blake was not present. We were later told that her father had died unexpectedly. Remarkably, Blake was back in court on Thursday and Friday. I can't imagine what it must be like have that happen in the early days of a trial you've been preparing for years for. 

Detective Hermosillo's time on the stand continued into the morning with cross examination. The cross-examination was brief and somewhat perfunctory. John Thomas didn't score any points.

The next witness was Lt. Jared Wilmore, of the Madison County Sheriff. He is in charge of the Madison County Jail, and was there to lay the foundation to introduce a jail calls. He talked about the Telemate phone system, and the state introduced several jail calls into evidence. They played the call between Lori and Chad on the morning the bodies were found. The remaining calls, one between Lori and her sister, Summer, and one between Lori and her son, Colby, were introduced into evidence to be played later.

Next, Lt. Joel Powell took the stand from the Fremont County Sheriff's office. He was there to introduce evidence of the exhumation of Tammy Daybell's body. He also did some surveillance of Chad and Lori as they held hands and canoodled days after Tammy's death. The state offered a series of photographs of Tammy's exhumation, ending with a photograph of Tammy's body. The photo shows Tammy from about the waist up, wearing the white temple clothes and the green apron faithful members of the LDS Church are buried in. Tammy's body was exhumed, autopsied and returned to its resting place in a matter of hours on December 11, 2019.

Thursday, April 13, 2023. Melanie Gibb is in the house! Here are some of the highlights:

• MG met Chad 1-2 years before she met Lori. She was acquainted with him because of her attendance at Preparing a People (PAP) events.

• Tylee seemed upset and frustrated with Lori most of the time.

• Sometimes Lori was loving and patient with JJ, but seemed to get more frustrated with him and more distracted as time went on.

• Lori and MG saw each other nearly every day in the early part of their friendship.

• Lori met Chad in October 2018 when Lori, MG, Zulema Pastenes and four other women drove from Chandler, AZ to St. George Utah for a PAP conference. Chad was very friendly and he and Lori engaged in discussions about their beliefs, including the idea of multiple mortal probations.

• Lori was clearly very attracted. She seemed flirty and flattered.

• During that meeting Chad told Lori that he believed they had been married in a previous life.

• MG says Lori already believed in multiple probations before she met Chad. Lori believed she had been married to the LDS Prophet/angel Moroni in a previous probation.

• After the St. George conference, Lori and Chad started talking to each other frequently.

• Two weeks later, Chad came to Arizona for another PAP conference. He and several other people stayed at Lori's house while Charles Vallow was out of town. While Chad was there, they went to the LDS temple in Mesa, AZ and sealed themselves to each other. MG explained that what they did wasn't a church sanctioned marriage, but that Lori told her she and Chad went into a temple room and sealed themselves together and that both Jesus and Moroni were present.

• By early November, Lori told MG that Lori had been married to Chad five times before. In one probation, Chad was James the Lesser, and Lori was his wife, Elena.

• It was clear Lori was in love with Chad, but she only shared it with a few people in their small circle.

• Lori first said she and Chad were part of the 144K, but later said she and Chad were the leaders.

• Lori never shared her ideas with Charles Vallow or Brandon Boudreaux.

• Within weeks of meeting Chad, Lori began talking about the light and dark scale. She said people in the premortal world could sign light contracts with Jesus or dark contracts with Satan.

• In January 2019, Chad told Lori Charles Vallow had been taken over by a dark spirit. Chad explained that the dark spirit forced the persons soul out and into limbo. He called the spirit Garrett. This was the first time Lori had heard about spirits possessing people.

• Lori told MG she had a dream that Charles would die in a car accident. She was convinced it would happen. When it didn't happen, Lori told MG it was because Satan interfered with the plan. Lori told her God revealed a plan to her and Chad that both Charles and Tammy would die so they could be together.

• Lori began doing “castings,” with her friends. These were rituals with prayer designed to cast out the demons. Each time they would do a casting, Lori would call Chad, and he would say, it worked, but a new, stronger spirit stepped in. Garrett was replaced by Ned Schneider and Ned was replaced by Hipplos.

• They also did castings for Brandon Boudreaux, who had become a high-level dark, who Chad and Lori claimed had been a part of Hitler's regime in an earlier probation.

• Lori said Charles, Brandon, her brother, Adam Cox, her father, Barry Cox, Tylee, Kay Woodcock, and finally, JJ, were all dark.

• Lori and Chad met up in hotels while Charles and Tammy were still alive. Lori said they were intimate, but it was okay because they had been married in previous lives and had a mission to perform together.

• MG said Lori and Chad seemed happy and relived once Charles and Tammy were dead.

• She told MG everyone in Lori's family would die in the tribulation and Lori would go on with her mission.

• Lori told MG she had learned that JJ was a zombie one day before MG and David Warwick arrived for a visit. Lori said JJ was acting different. She said his vocabulary was bigger and that he'd said, “I love Satan.” MG said she didn't think JJ was any different than ever.

• While they were there, there was an incident where JJ seemed upset and Chad took him upstairs. When they later came down, Chad said JJ had scratched his neck.

• MG asked Lori why she and Chad each didn't get divorced, and Lori said it wouldn't be God's will and they would both be penalized and lose their standing with God. Lori said Chad would lose his exaltation.

• JJ is believed to have died on September 22, 2019. Lori said the angel Moroni first appeared to her in the temple on September 22.

• Lori was frustrated that she moved to Idaho and Tammy hadn't died yet.

• Lori told MG Tammy was getting suspicious.

• Lori said Tammy Daybell was possessed and that she and Chad did what they had to do to get the dark spririt out.

• Alex Cox told MG he 100% believed what Chad and Lori were teaching.

• MG asked Alex what happened to JJ, and he told her she didn't want to know.

This is one of the places things got interesting from a legal perspective. We know there was a hearing and an evidentiary order in February 2023, but the order was sealed, so we don't know the content. The motion was to exclude 404(b) character evidence. That's evidence of prior bad acts, if the evidence is used solely to prove the person acted in conformance with their bad character. The issue had to do with introducing the evidence about Charles's murder. Prosecutor Lindsey Blake first brought the information in through Melanie Gibb. It was a very smart move. Melanie testified to what Lori told her about Charles's murder. The testimony is hearsay, but it comes in under an exception for the statement of a party. The defense addressed it on cross, and now, the door was open.

The prosecution played the recorded call between MG and Lori and Chad.

John Thomas cross-examined Melanie Gibb, but his questions were, once again, quite perfunctory.

Det. Nathan Duncan from Chandler, AZ Police Department was called next. With the door open, the information about Charles's murder came flooding in! The jury looked incredulous. The only fact that didn't come in was that Lori has been charged in Arizona for Charles's death. He testified about all of the text messages between Lori, Chad, Alex and others. He presented Chad's patriarchal blessing of Alex.

Friday, April 14, 2023. Det. Duncan continued on the stand as the letter Lori wrote to Chad posing as Charles is introduced, as well as the Charles's text messages threatening to contact Tammy Daybell. The text messages between Lori and Zulema as they try to use their power to cause Charles to have a car accident are introduced.

Zulema Pastenes was the final witness. Here are the highlights of her testimony:

• Zulema met Lori at Melanie Gibbs house, where Lori was giving her testimony. ZP says she was impressed that Lori said angels visited her frequently and that she was a personal witness of the Jesus Christ. ZP said that gives someone high spiritual standing. ZP says she believed Lori's testimony.

• ZP was on the trip to St. George. She confirmed Melanie Gibb's impressions of Lori and Chad's first meeting. Lori spent most of her time with Chad.

• During the ride back to AZ, Lori was driving, and asked the others to look up “James the Less” in scripture.

• ZP said Lori always said the number 7-11 was important to her. When Charles died on July 11, Lori said Charles's death must have been orchestrated by God.

• As time went on, Chad gave ZP blessings, and he and Lori encouraged her to marry Alex.

• Zulema confirmed a lot of what Melanie Gibb said about the castings and a lot of the other details.

• ZP lied for Chad and sent him invitations to come and hear her speak as a pretext to get                                     him out of the house with Lori.

• Lori told ZP Tylee had been possessed by an evil spirit named Hillary.

• Zulema visited Lori after she moved to Rexburg, and before Melanie Gibb and Warwick were there. ZP says she didn't see Tylee and when she asked about her, Lori said “she had to be free.” When ZP asked where Tylee was, Lori   put her palm in ZP's face and said “don' ask.”

• The night Tammy was shot at, Lori was visiting ZP in Arizona. They did a casting to get the evil spirit out of Tammy. Later, Lori called Chad to see if it had worked. ZP said she heard Lori on the phone “very very scary angry.” Lori said, “the idiot can't do anything right by himself.”

• Alex Cox told ZP “I think I'm being their fall guy.” When she pressed him about it, he said, “Zulema, either I'm a man of God or I am not.”

• Over and over, ZP said Alex believed Lori and Chad 100%.

Another interesting legal note here. Prosecutor asked if Lori confided to ZP that she and Charles were having money problems. Lori said things were better, she had come into some money because she was the beneficiary on the life insurance policy for Joe Ryan, Tylee's father. That drew a quick objection from the defense as impermissible 404(b) evidence, but not before the jury heard that another husband of Lori's is dead.

This is just and overview – there was so much testimony in five days it's impossible to write about all of it.

There was a rumor that Colby Ryan, Lori's eldest son, was in the courthouse on Friday. Although I heard it from several sources, I can't confirm it. If so, we may hear from him on Tuesday. 

First Week Trial Recap

Hello Good Friends!

As is common in trials, both a lot and very little happened in the first week of the Lori Vallow Daybell trial.

First, let's talk about what the atmosphere has been like. News cameras are not allowed in the courthouse, so they are stationed in an area set aside in front of the building. Inside, participants, spectators, and those citizens, and lawyers just trying to go about their regular business line up at the metal detectors for entry. Once inside, people watching the Vallow Daybell trial report to a registration table where their daily ticket is checked, and they are given a reentry ticket. This week, entry into the actual courtroom on the fourth floor has been restricted during jury selection. So instead, all spectators watch a video feed from the County Commissioner's chambers on the first floor. The room is quite comfortable, and the courthouse staff have been accommodating. The actual courtroom seats about 75 people—the overflow room with a video stream seats about 200. There have been a lot of familiar faces at the trial. Gigi McKelvey, from Pretty Lies and Alibis, has been my seatmate all week. She is covering the case for Law and Crime. Nate Eaton from East Idaho News is there, as is Justin Lum from Fox 10 Phoenix and Lauren Matthias of Hidden True Crime. Leah Sottile, author of the book, When the Moon Turns to Blood, has also been there this week. Chad Daybell's attorney, John Prior, has attended most days. Attendees obtain entry by entering their request for the next day, every day at 8 am. So far, it hasn't been difficult to get a seat.

Lots of people want to know what Lori looks like. It's a little hard to tell because of the video feed and the camera angles. The feed shows all three cameras, one trained on the judge and a camera on each counsel table. That makes all three images relatively small. To further complicate matters, the defense counsel table is in front of a large window. The light from the window washes out the image and makes it hard to see much other than silhouettes. A few images are available from the court sketch artist hired by some of the media. So far, the sketch artist seems to be having as much trouble as we are. The images are not all that accurate or flattering. I doubt Lori would be too happy about how she looks in them. Lori appears daily in some combination of slacks, a blouse, and a black cardigan. I'm told she does not have access to makeup in the Ada County jail like in Fremont County. She wears dark-framed reading glasses. Once spectators are permitted in the actual courtroom, we will have a better description for you.

Jury selection began on Monday morning. The court has been bringing in groups of 15 at a time for questioning. Some jurors are immediately dismissed because of answers on their jury questionnaires that indicate bias or hardship. The judge then reads them the introductory jury instruction and asks a few preliminary questions before turning the questioning over to the attorneys. The prosecution goes first. Jury questions also educate the jury as they go along about things like reasonable doubt and circumstantial evidence. The attorneys then may challenge jurors "for cause," meaning the questions have uncovered a bias or a hardship. The remaining jurors are "passed for cause." The court's goal is to seat a pool of 42 jurors who have been passed for cause.

Here's why 42 (and no, it's not because 42 is the answer to Life, the Universe and Everything). The jury panel will consist of 12 jurors and 6 alternates. These are the people who will hear and decide the case. Each side gets 12 peremptory challenges. These are challenges that the lawyer does not have to give a reason for. However, the attorney can't cut a juror solely because of religion, race, or gender. 42 - 12 -12 = 12 + 6 . On Wednesday afternoon, the tally stood at 39 qualified jurors.

We were notified late yesterday that jury selection wouldn't resume until 1:30 pm today, Thursday, April 6, 2023. As I write this, I am waiting for that court session to begin. The late start was to allow for an administrative hearing this morning. The issue of who is immediate family came up the week before trial, and the judge issued his decision today. He permitted Kay Woodcock to be present in the courtroom as a representative for JJ Vallow, even though she is scheduled to testify in the case. Judge Boyce ruled that Lori's son, Colby Ryan, and her sister, Summer Shiflett, are also immediate family and can be in the courtroom before they testify. Kay Woodcock's husband, Larry, must remain outside the courtroom until he testifies. It is unknown if any of them, other than Kay and Larry, will attend.

The court is expected to finish jury selection this afternoon and Friday and begin with opening statements on Monday morning.

You can follow my live tweets from the courtroom at https://twitter.com/lorihellis. Those tweets are also posted in my Facebook group, The Good Lori, at https://www.facebook.com/groups/277177093926535. In addition, I am posting YouTube shorts as I can from the courthouse.

On another note, I just made reservations in Moscow, ID, for Bryan Kohberger's preliminary hearing, scheduled for June 26 to June 30, 2023.

I'm excited to appear with Lee Wallace of Harvard Lawyer Lee on her show on Friday, April 7, 2023, at 7 pm EDT. Here is a link to her channel: https://www.youtube.com/@harvardlawyerlee. I will post a link to the actual episode on my Twitter, and Facebook feeds when it is available.

We will have a two-hour case recap on Saturday, April 8, 2023 at 6 pm PDT. Here is the link. https://youtube.com/live/BIpm-vzQ9aU

Thanks again for all the follows and the subscriptions. Please stick with me on YouTube and here in the newsletter for updates as the trial begins. 

Newsletter

Hello Friends!

We are so close to the Lori Vallow Daybell trial that I can smell the furniture polish on the wood panels in the hallowed halls of justice!

As we get closer, we have the inevitable last-minute motions and issues. The latest one concerns witnesses in the courtroom and who is considered "immediate family." On Wednesday, Judge Stephen Boyce held an unexpected hearing to discuss the exclusion of witnesses. Generally, witnesses are excluded from the courtroom until after they have testified. No attorney wants witnesses sitting in the courtroom hearing what everyone else has to say before they give their testimony. That usually means anyone called as a witness must sit in the hall until they are called. Typically, they can sit in the courtroom and watch the trial once they have testified. There are crime victim rules that make victims that will be called as witnesses exempt from the exclusion rules. Judge Boyce issued an order yesterday that "any witnesses in this matter shall be excluded from observing or listening to other witnesses' testimony during the trial, excepting those witnesses who are victims as defined by Idaho Law and Article 1, Section 22 of the Idaho Constitution."

Now, don't shoot the messenger, but here is my analysis.

When we analyze the law, we start with the general, move to the specific, and start with the best controlling authority and move to the least.

The Idaho Constitution, Article 1, Section 22 covers Crime Victims' Rights. 22 (4-6) says victims have the right:

(4) To be present at all criminal justice proceedings.

(5) To communicate with the prosecution.

(6) To be heard, upon request, at all criminal justice proceedings considering a plea of guilty, sentencing, incarceration, or release of the defendant, unless manifest injustice would result.

Idaho Criminal Code 19-5306 also covers crime victims' rights. The statute is a little confusing because it doesn't follow the usual format of starting general and then moving into specifics. Let's start with the definition of a crime victim. 19-5306(5)(a)

1. "Victim" is an individual who suffers direct or threatened physical, financial, or emotional harm as the result of the commission of a crime or juvenile offense;

The question is, who is a "victim?" I think it's clear from the statutory construction that a crime victim is an individual who suffers direct harm. Otherwise, why would the statute need to go on and extend the protections to families of homicide victims? As I read it, under the statute and the Idaho Constitution, Tylee, JJ, and Tammy are victims.

Because they are deceased, 19-5306(3) says

(3) The provisions of this section shall apply equally to the immediate families of homicide victims or immediate families of victims of such youthful age or incapacity as precludes them from exercising these rights personally. The court may designate a representative from the immediate family to exercise these rights on behalf of a deceased, incapacitated, or minor victim.

Now the question becomes, who is considered "immediate" family? The Idaho Supreme court decided that issue in State v. Payne 146 Idaho 548, (2008)

Further, the Court defined "immediate family members" as "parent, mother-in-law, father-in-law, husband, wife, sister, brother, brother-in-law, sister-in-law, son-in-law, daughter-in-law, or a son or daughter." 146 Idaho at 575, 199 P.3d at 150.

The relationships are defined relative to the victim. If we consider Tammy, for instance, her parents, Chad and Chad's parents, Tammy's siblings and their spouses, and Tammy's children and their spouses would be immediate family. Tammy's aunts, uncles, cousins, grandchildren, and grandparents would not.

I know many people took exception to Jim Archibald's comments about adoption law and Kay giving herself the designation of grandmother. There's no question his comment was inartful and insensitive. But he was right. While he quoted Idaho adoption law, it's the same in all states, including Louisiana, where JJ's adoption was finalized. Adoption terminates the natural parents' parental rights. It also has the legal effect of terminating any other familial ties. Kay became JJ's aunt when her brother, Charles, and his wife, Lori, adopted JJ. Now, we all know that Charles and Lori encouraged Kay and Larry to maintain their role in JJ's life as his grandparents. We also know that Kay and Larry had a close emotional bond with JJ, and JJ believed they were his grandparents. No one disputes any of those emotional attachments. But the judge has to apply the facts – the legal status of the parties – to the law. Kay and Larry have hired an attorney licensed in Idaho to file a memorandum in the case. His arguments echo those made by Prosecutor Rob Wood, and I don't believe they are any more persuasive when you read the constitution and the statute.

Whether Kay and Larry Woodcock are considered grandparents or aunt and uncle is a red herring. Under the law, neither would be considered "immediate family." I think Judge Boyce will likely rule that they can be excluded from the courtroom until after they testify. The defense could argue they should also be excluded after their testimony in case they are recalled as rebuttal witnesses. If I were the prosecution, I would argue that any rebuttal would only be about their direct testimony, so being in the courtroom won't matter.

Please note that this has nothing to do with whether Kay and Larry will have a reserved seat in the courtroom; it only has to do with when they can be in the courtroom, not whether the court will permit them reserved seating.

As an aside, several people have asked me about JJ's natural parents and whether Kay and Larry were granted wardship over JJ.

First, JJ's natural parents were Kay Woodcock's son, Todd Trahan, and his girlfriend, Mandy Leger. Both were suffering from addiction when JJ was born. The state of Louisiana child welfare removed JJ from them at birth because the baby tested positive for drugs. He was initially placed with Kay and Larry while the state worked with the parents to help them get clean and sober. Charles and Lori were allowed to adopt JJ when neither parent overcame their addiction. That adoption terminated both parent's legal rights and those of all other family. JJ's father, Todd, has recently completed a long-term treatment program and is working hard on his recovery. Sadly, JJ's biological mother, Mandy, died of a drug overdose last year. I'm sure JJ's murder affected them both deeply.

Regarding wardship, Kay and Larry filed a petition for guardianship while still searching for JJ, reasoning that guardianship would prevent him from being placed in foster care if he were found alive. No judge ever ruled on the guardianship because JJ was not found alive. Once the children's bodies were found, the guardianship case was dismissed. The judge could not grant guardianship or legal wardship over someone deceased. From the date of the adoption, there was never a time when anyone other than Lori and Charles had a claim to legal custody of Tylee or JJ.  

Ready? Set, Go!

Hello, Good Friends!

Thanks for all your good wishes as I traveled to visit my daughter and do the last wedding preparation for her big day in mid-May.

We are inching ever closer to Lori Vallow Daybell's trial. Do you feel, like I do, that we are at the top of the rollercoaster? I can almost hear the clank and the tick-tick-tick as the chain pulls the cars up that long steep hill, and feel the sense of being poised, motionless at the top, just before the wild, exciting ride begins.

I will attend the trial daily, so our YouTube schedule will change. I will post YouTube shorts from the courthouse a few times a day and do a complete two-hour recap on Saturdays. Follow me on YouTube at https://www.youtube.com/@childrenofdarknessandlight. I'll also be live Tweeting from the courtroom. Follow me on Twitter at https://twitter.com/lorihellis. I've been fortunate enough to find a member of our community who is exceptionally qualified and has offered to sit in the trial for me during the week of my daughter's wedding, so we'll keep up with events as best we can that week.

Both the defense and the state are filing last-minute documents. Let's talk about what has happened and what to expect.

In my last newsletter, I outlined some of the outstanding motions. The defense filed three motions with overlapping issues. At the heart of the defense argument in all three was that the prosecution had failed to provide discovery on time. Their complaints go back years. Since the first destruction of evidence charges were filed in June 2020, John Prior has complained that the state was withholding or slow-walking discovery. Mark Means made similar complaints; many times, Means demonstrated that he was out of his depth dealing with a criminal case, but he was right about some things too. In this latest hearing, held on March 21, 2023, Jim Archibald commented that he has never had as much trouble with discovery in Fremont County as in this case. The judge commented that he gave that comment a lot of consideration in his decision. The judge rejected the defense arguments that the death penalty should be dismissed because of media saturation, Lori's mental health, or the state's lack of ability to carry out the ultimate punishment. The judge did consider and give weight to the repeated discovery violations and the potential prejudice to the defense those violations created. The judge imposed consequences as a result.

Judge Boyce outlined his analysis in his Tuesday, March 21, 2023, ruling. First, he told the parties that he was focused on the discovery violations and not the other issues the defense raised in their motions. The court previously ordered that all discovery be completed before February 27, 2023. Boyce said there were three categories of discovery: that which was provided before February 27, discovery provided on February 27, and materials provided after February 27. The state argued that while the original written order was clear, the judge extended some deadlines. His remarks at some of those hearings may have led the prosecution to believe the deadline was on February 27 instead of before the 27th. The judge said he gave the state the benefit of the doubt on all but the discovery provided after the 27th. It seems the defense asked more than once for recordings of the defendant's jail calls. The prosecution responded that they would deliver the calls by July 2021. The calls were never produced. The state tried to say that because the defense knew there were jail calls, it was their fault they didn't ask for them. They also tried to justify not producing them because calls continued to be recorded daily. Both excuses are absurd. The prosecution has an ongoing responsibility to provide discovery as it occurs, even if it means downloading calls daily as they occur and sending them over to the defense, one by one. There is no question that the amount of discovery was overwhelming. More than 3000 jail calls were turned over to the defense days after the discovery deadline. The prosecution's excuse was, “oopsie, oh well, you should have reminded us, so no harm, no foul.” The judge didn't buy it. Once the judge was persuaded that the state had committed a major discovery violation and that it was possible the defense would be prejudiced by it, he had to decide what the consequence would be. Of course, Jim Archibald advocated for dismissing the case. The judge rejected that, finding that remedy too severe.

Trial court judges do not like making new law. They like clear statutes and settled precedent to guide them when deciding sticky issues. However, there is no Idaho case law to use as a guide on this issue. When analyzing an issue, the judge first looks first at the applicable statutes, then at state case law that interprets the statutes, and lastly at federal cases and cases from other states. Judge Boyce determined he had the authority under the statute to dismiss the death penalty. He then looked for Idaho case law. There are no previous cases on this issue, so he looked to the analysis in Federal case law and cases in other states. Because of the speedy trial deadline, the judge did not have the option to continue the case. After weighing all the choices, Judge Boyce ordered the dismissal of the state's Notice of Intent to Seek the Death Penalty.

The consequences of this decision are monumental. Let's look at a few.

Shorter Trial. With the death penalty off the table, jury selection should go much faster, and the trial probably be a bit shorter than expected. Additionally, there won't be a penalty phase. Lori will be sentenced to life with possible parole after ten years if convicted. This also means she will likely be transported to Arizona to deal with the charges there before returning to complete her sentence. The judge can impose a sentence as soon as two days after the verdict. Lori has served her last days in the Madison County jail. If convicted, she will wait in the Ada County jail for sentencing. If found not guilty, she will be released from the Ada County jail on the day of the verdict.

Potential Sentence. Before we panic that if convicted, Lori might be released before she dies, let's look at the possible sentences. Judge Boyce will decide the sentence. There are three different and distinct crimes at three different times, so the crimes do not merge for sentencing. That means Judge Boyce can run her sentences consecutively - one after the other. If Lori is convicted, she could get life with parole after a minimum of ten years for Tylee's death, followed by life with a minimum of ten years for J.J., followed by life with a minimum of ten years for Tammy. As a practical matter, she would serve thirty years. That's before we look at the Arizona charges. In Arizona, conspiracy to commit murder carries a maximum of life with twenty-five years before she would be eligible for parole. The death penalty is not an option in Arizona. Once Lori completes her sentences in Idaho, she will be transported to Arizona to serve any sentence there.

Impact on Chad's Trial. The judge did not dismiss the death penalty as it applies to Chad. His trial was postponed allowing his attorneys more time to investigate new evidence; a new date has not been set. The court may not reset his trial until after Lori's is finished. I'm sure there will be all sorts of motions between the time Lori's trial ends and Chad's trial starts. It's hard to understate the advantage Chad now has because Lori's trial is first. Chad and his attorney will have the luxury of previewing all the evidence and have a good idea of the prosecution's case theory. If Lori is easily convicted, that preview could lead to Chad accepting a plea.

Fewer Issues for Appeal. Throughout the pretrial process, we've heard “death is different” over and over. With the death penalty off the table, the supreme court will be less inclined to scrutinize every tiny aspect of the trial. Nonetheless, I think there is a good chance the speedy trial and discovery violations will be enough to trigger a new trial for Lori.

For those of you who keep a close eye on the court's database, you may have noticed many subpoenas, including something called a Petition for Issuance of a Certificate for Issuance of a Foreign Subpoena. This isn't about sending a Subpoena to France or any other foreign country. As we've said before, most criminal law is created and enforced by the states, and states have sovereignty under the Fourteen Amendment to the U.S. Constitution. That means that an Idaho court can't issue a subpoena and compel someone who, for example, lives in Arizona. Instead, Idaho has to file a request asking Arizona to honor their Idaho subpoena and serve it on an Arizona resident. Once that is done, if the person does not comply with the subpoena, the court can order the person arrested.

The State has filed a document titled “Response to Defendant Notice of Alibi. You may recall the defense filed a Notice of Alibi on January 5, 2023. Lori's alibi says, “1) Lori Vallow was in her own apartment in Rexburg, Idaho, when J.J. Vallow and Tylee Ryan died in the apartment of Alex Cox in Rexburg, Idaho. Defendant was with Melanie Gibb, David Warwick and/or Chad Daybell. 2) Lori Vallow was in Hawaii when Tammy Daybell died at the home of Chad Daybell in Salem, Idaho. Defendant was with Melani Boudreaux and/or Audrey Barattiero.” The state responded that the defense notice was not timely. The prosecution asked for the defense's notice of alibi on June 15, 2021, while Lori's case was stayed. The Idaho code requires that the defense responds to such a request within ten days. However, Lori's case was stayed at the time of the request. Once Lori was ruled competent and arraigned on April 19, 2022, the defense had ten days to respond. They did not file their notice until January 5, 2023. It was likely an oversight. You may recall Lori changed attorneys about the time the state filed its demand. The state further says that “all previously disclosed evidence establishes the Defendant's participation in the charged crimes of murder, conspiracy and grand theft. As alibi does not apply to a conspiracy charge the alibi disclosure is misplaced as to those charges. The state lists previously disclosed evidence and witnesses that will be called, including Melanie Gibb, Melani Pawlowski, David Warwick, Apple Business Records, Google Business Records, Shawn Derrick, Blue Sky Properties Business Records, Zulema Pastenes, Ron Ball, David Stubbs, and Ray Hermosillo.” The last three are from the Rexburg Police Department. I expect if the defense attempts to offer alibi evidence, the state will object, claiming that the notice was not filed on time.

Now, I want to address a couple of questions from followers. 

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Why does it seem that trials are more about strategy versus actual guilt or innocence? It frustrates me to listen to defense attorneys obviously twisting the truth or out right denying the truth. I am talking about cases where the evidence is very clear and damping. How do you defend a person that you yourself believe to be guilty and fight or strategize to get them off? I am a court junkie, and I watch all sorts of cases, and there are tons of lawyers that spin the truth to make their client look good. They may even admit the things their client has done, but they still try to avoid any punishment for them. This is very common in CPS cases, bond hearings, all the way to heinous murders like the Sterling Koehn case and the case of the foster mom who beat a 2 year old to death. I sometimes avoid anything the defense says, after I have watched them do this. I am not saying all defense attorneys do that; however, I find that type of thinking and rhetoric with the lawyers that are “talking heads” on certain channels. I have heard a podcast about the Lori Vallow case, argue her guilt, then argue how to get her off. Why would anyone do that? I understand the constitutional rights we have, and I agree that the prosecution should have the evidence that shows guilt. I just do not understand how one can, not only sit next to a defendant they know or believe are guilty, but then stand up and literally argue to the judge and jury that the defendant is not guilty. They are literally arguing to put them back on the street, putting others in danger. But they won the chess match, so it is ok with them. I hear “talking head attorneys” say all the time, “I only need one.” And then you get to the level of hiring people to try to stack the jury with people you can easily convince to say not guilty. Again, it seems and looks and sounds to me, like it doesn't matter if they are literally guilty, it only matters what you can say or do to get them off. It make sense to me why lawyers are seen the way some of them are. Don't get me wrong, I know for sure there are prosecutors that will do the same by trying to manipulate things, just to convict someone, regardless if they truly are innocent. Of course, there are no circumstances where “all” people of some group that are all bad. I just have such a hard time respecting the profession, as I did prior to getting involved in “trial watching.”

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I read your comment and I have to tell you this has been bothering me for ever. The fact that defendants and their lawyers who knows their client is guilty will get up and try to convince the jury that he's not guilty. How is that even legal?? I do not understand that. It's something that pisses me off so much because how is it that they will spin a story they will tell lies to get their client a lesser sentence or perhaps even deemed innocent when they know outright that this person is a murderer or a sex offender you-name-it they're going to defend this person and try to get the jury to see them as an innocent human being not a disgusting criminal. How can we even say we have a justice system? Our system is so filled with Injustice I would never call it a justice system. Thank you so much for such a well-thought-out and well expressed comment you left. I agree with you one hundred percent on the many issues and innuendos you brought up regarding this problem we are talking about. Have a great weekend.

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This is a hard question, but I'm glad you asked because we can do hard things here. I understand and sympathize with both of these questioners. I don't want to sound like someone parsing words or using semantics, but here are some important legal principles to this discussion.

Every defendant is innocent until proven guilty beyond a reasonable doubt. That's how our system safeguards our citizens from government overreach. When I represent a person charged with a crime, I am legally required to presume they are innocent. Yes, I may be privy to discovery that seems to prove their guilt, but in the eyes of the law, they are innocent until they are either found guilty by a finder of fact or plead guilty. It is the prosecutor's job to prove their case beyond a reasonable doubt. The defendant is not required to put on any evidence and is not required to prove their innocence.

The defendant may decide to put on evidence that tends to disprove the prosecution's claims, but the burden to prove the case is on the prosecution. Whether I, as the defense attorney, know facts that prove my client's guilt or not, I am legally and ethically bound to protect my client's confidences and zealously represent my client's interest. It is also my duty to ensure that my client's due process rights are protected. That means ensuring that the jury is made up of unbiased people, that the prosecutor does not introduce illegally obtained evidence, and that the judge follows the rules of evidence, allowing only the most reliable information to be presented to the jury. If the trier of fact determines that the prosecution has not proven its case, the defendant must be found not guilty. The prosecution has nearly unlimited resources to investigate a case. If the prosecution does not present sufficient evidence to convince the finder of fact of the defendant's guilt, the evidence must not exist, or the prosecutor must not have done their job. Yes, there is sometimes a difference between actual guilt and legal guilt. A person who committed a crime can be found not guilty because the prosecution didn't prove the case—notice I said not guilty, which is not the same as innocent. You are right; in our system, it does not matter whether the accused person is guilty if the government can't prove it. That's the rule of law, and that's what keeps us all safe from government abuse of power.

There is no such thing in our system as “stacking the jury.” Manipulating a jury is illegal. That said, both sides often hire jury consultants and do mock trials to try out arguments. In my opinion, jury consultants are hardly more effective than water witchers. Those who claim to be able to determine how a person might decide a case are simply pointing out individual biases. Anyone with a little common sense can find that out. Trying to determine whether a juror might find your client guilty by asking what their favorite vegetable or favorite color is, is just silly.

I have to be honest. In the 27 years that I practiced law, I found very few clients that had no redeeming qualities. In nearly all cases, I found something likable about them, even those accused of terrible crimes. As a law student, I met a serial killer while helping one of my professors with a post-conviction motion. He was pretty charming and likable. Over the years, I met many people who had inflicted terrible harm on others. There were only a handful I could not find some intrinsic human value in. While I was never naive enough to think anyone could save them all, every once in a while, if you crack the door, one gets out; I'm proud to have played a small part in a few of those escapes.

Our legal system isn't perfect. It sometimes leads to inequitable results. Sometimes innocent people are convicted, and sometimes guilty people escape accountability. Still, it's a system that assures that by protecting the rights of the guilty, we also protect our rights if we are accused of a crime.

I hope I have answered your question. 

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Lori Hellis is a criminal and family attorney who practiced law for nearly 30 years before retiring to write. Her book about the Vallow Daybell case, Children of Darkness and Light, is expected to be released in the fall of 2024. 

Run Up to the Lori Vallow Daybell Trial

March 16, 2023

Hello Friends!

There's plenty to talk about as we prepare for the murder trial of Lori Vallow Daybell. If you are new to the newsletter, take a look at the archive for back issues at http://thelorivallowstory.com/

Before we dive in, I want to thank all of you who subscribe to my YouTube channel. This week we hit 5000 subscribers! I also want to thank everyone who has generously sent super chats and PayPal donations to support my moderators and all of you who bought me a coffee. Your generous super chats have really helped my mods, and I can always use coffee. You can find my channel at https://www.youtube.com/@childrenofdarknessandlight. I will post YouTube shorts as often as possible during the trial. If you have not already subscribed, now would be a good time. Be sure to click the little bell to get notifications, so you know when I go live or post a new short.

I had a lot of fun appearing with my friend, Gigi McKelvey, from the YouTube channel Pretty Lies and Alibis on Joel Waldman's Surviving the Survivor. You can watch it here https://www.youtube.com/watch?v=5mpMofRFUGI

If you want background information on the Vallow/Daybell case, check out https://www.youtube.com/@PrettyLiesAndAlibis/playlists. She has a five-episode Lori Vallow crash course to help you get up to speed. For a really deep dive, with over 50 episodes, check out her playlist, Lori Vallow and Chad Daybell: Connecting the Dots. https://www.youtube.com/playlist?list=PL7766TxulH2bLtGrdT6si5qVx68U_yAlo

Lori Vallow Daybell's trial will begin on April 3, 2023, at the Ada County Courthouse in Boise, Idaho. It will NOT be televised. Judge Boyce continued his ban on all cameras in the courtroom. Many of your favorite online creators will be there, including Nate Eaton from East Idaho News, Gigi McKelvey from Pretty Lies and Alibis, Scott Reisch of Crime Talk, and of course, me. I'm looking forward to seeing them all.

Most troubling is the announcement that the only way for the public to access the trial will be in person or by listening to the audio recordings released at the close of each trial day. This will be familiar to those who have followed the pretrial hearings. The court also announced that there will be a fee of about $90 per day for those recordings.

A video feed will be transmitted to an overflow room in the Ada County Courthouse. That same feed will be sent to a courtroom in Madison County so that local residents can watch the trial. That feed will NOT be recorded or saved and will NOT be available to the general public at any time. The court has made NO special provision for the media. Anyone who wants to attend the trial must go on the court's website and reserve a spot, first come, first served. Only those with reservations will be admitted into the courtroom or the two remote locations. The reservation page is here: https://adacounty.id.gov/iudicial-court/vallow-davbell-trial/. The reservation system will activate at 8 am on the business day before the day you want to reserve. The court is still refining the reservation process, so look for more details soon. Trial exhibits will not be released until the trial is over. Cell phones and laptops will be permitted but must be in “silent” mode and cannot be used to transmit, record or photograph the proceedings. No one may wear buttons or any other item that displays a message, so if you are attending, you may want to put your Justice for JJ and Tylee wristbands in your pocket. Many creators will be live-tweeting updates. If you wish to receive those tweets, follow them on Twitter. You can see mine on Twitter @lorihellis. Gigi is @prettylies&alibis, and Nate Eaton is @NateNewsNow.

The court held an informational meeting for the media yesterday to answer questions. Nate Eaton of East Idaho News has announced that they will obtain the audio recordings daily and post them on their web page at https://www.eastidahonews.com/ and YouTube for free at https://www.youtube.com/@Eastidnews.

The recordings are essential because of the lack of other public access. The public has a right, and more importantly, a responsibility, to oversee their public officials, and public access to court proceedings is fundamental to our system of checks and balances. To put this in perspective, according to East Idaho News, the Vallow and Daybell cases have already cost the state and local governments an astonishing $3.6 million before either has even come to trial. The citizens of Idaho have no idea how that money has been spent and no way to ensure justice has been served. Her trial will easily cost another million dollars, and taxpayers can expect that if she is convicted, Lori's appeals to cost an additional $30,000 to $50,000 per year for as long as thirty years; that's an additional $1.5 million. It costs an average of $22,182 per year to house a prisoner in Idaho.

During yesterday's court meeting, we were told that prospective jurors will arrive at the courthouse on March 27 and 28 to turn in their jury questionnaires. Those sessions will be closed to the public. Jury selection will begin on April 3, 2023. The questioning will be done in small groups and may include some questioning of individual potential jurors. At least some of that questioning will be done privately. Spectators will only be seated in the overflow room during jury selection to allow the court to control what the public sees. When the substance of the trial begins will depend on how long it takes to seat a jury. I would anticipate at least a week for jury selection. Judge Boyce is scheduled to meet with the attorneys to discuss timing, but the court still expects an eight-to-ten-week trial. It's unclear whether that includes the penalty phase if she is found guilty.

As we swing into the final weeks before the trial, it's important to remember that for the appeals court to consider an argument, the issue has to have been raised at or before trial. Anything not raised at or before trial is not subject to appellate review.

What is likely the final pretrial motion hearing was held today (March 15, 2023). The hearing was to decide on two defense motions, Motion in Limine and Motion to Dismiss Death Penalty. The judge expressed frustration that we are so close to trial and still wrangling over these issues. However, Judge Boyce said he would take them under advisement and issue a decision before March 22, 2023.

Let's take a look at both motions.

Motion in Limine. A motion in limine is a request for a pretrial evidentiary ruling. Here, the defense is asking the court to rule in advance that all of the evidence included in the state's Thirteenth Discovery Disclosure be excluded at trial. As you might remember, the late disclosures were the basis of Judge Boyce's decision to sever the trials. One item, the newly discovered hair on the duct tape that wrapped JJ Vallow, was delayed because of its late discovery and the need to be analyzed in a specialty lab. The delay in producing the remaining items was, plain and simple, sloppy work on the part of the prosecution. The prosecution has emphasized the large volume of discovery at nearly every court appearance. Despite that, while they hired a costly death penalty qualified attorney to advise them, they failed to employ a discovery clerk to manage the thousands of pages and hundreds of hours of recorded discovery. As a result, they failed to turn over 4,933 pages of discovery and 48 audio files containing 30 hours of interviews. It would be hard to argue this oversight was immaterial to the case. The judge would very likely have granted a lengthy continuance to both parties, but for one small but very significant detail: Lori Vallow has consistently refused to waive her right to a speedy trial. The April 3, 2023, trial date is 42 days past that deadline. However, Judge Stephen Boyce found there was good cause under the Idaho law to exceed the time limit. Any further delay could result in her case being dismissed. In the end, Judge Boyce ordered the defendant's cases severed so that Chad's attorneys could have more time to investigate and analyze the newly disclosed discovery, while Lori's case will proceed as scheduled. I believe the judge will grant this motion and order the prosecution not to attempt to introduce any of the overdue discovery in Lori's case. Since Chad will have plenty of time to review and investigate the evidence, it will likely be admitted in his case.

Motion to Dismiss the Death Penalty. Lori's attorneys also filed this motion. The issues raised on both sides are worth a deep dive. The defense argued several grounds to justify the dismissal. First, they claimed that the ongoing media saturation exposes potential jurors to bias. Second, they cite the discovery violations and the likelihood that any conviction will be overturned because of the lack of transparency in the discovery process. Third, they say, “The government wanting to kill a mentally ill person is a troubling thought.” They go on to say that the government “submitted an opinion that maybe the defendant wasn't mentally ill, but just evil. Even if the government's new opinion of the defendant has some believers that the defendant is just evil, we don't kill witches anymore in America.” Fourth, the state doesn't have the chemicals to kill people on death row.

I don't believe the first argument gets any traction, with all the precautions being taken to protect the jurors and the process. I agree that the appeals court will likely have plenty to say about the state's handling of discovery. Whether that will result in them overturning the verdict and ordering a new trial remains to be seen. Third, the defense walks a fine line when addressing their client's mental illness. On the one hand, they have filed a notice that they do not intend to raise the issue of mental illness in the guilt or innocence phase of the trial. On the other, they claim there is ample evidence that their client is mentally ill. This is the dilemma of the defense attorney: they are legally and ethically bound to follow the direction of their client, even when they disagree with it. While it's clear Lori Vallow Daybell suffers from a mental disease or defect, she has decided not to present that evidence to the jury during the guilt or innocence phase. She alone can decide, and her lawyers must follow her lead. The state of Idaho does not recognize the insanity defense and does not allow pleas of guilty but insane. Idaho is one of only four states that does not allow insanity to be used as a defense. Still, Idaho law permits the defense to present evidence that the defendant was so mentally ill that she could not form the mental state (such as knowingly or intentionally) required to prove the crime. The prosecution has also filed a motion in limine, asking the court to limit any rebuttal evidence the defense could offer if the state “opens the door” to that line of questioning by raising the defendant's religious beliefs. We have discussed, at length in past newsletters, the question of when a religious belief becomes the diagnosable mental defect known as religious delusion. Finally, the motion asks the judge to dismiss the death penalty because Idaho does not have the chemicals to kill people on death row.

The defense cites the case of Gerald Pizzuto, who has been on death row for more than 35 years. After exhausting all his state and federal appeals, Pizzuto was issued a death warrant and given an execution date. The date had to be vacated because the state of Idaho could not obtain the drugs necessary to complete the execution. The problem persists in every state that still has the death penalty. For several years, states have had difficulty obtaining the chemicals because the manufacturers refuse to sell their drugs if they are to be used to execute people. This has led to some troubling outcomes. Some states resorted to having alternate drugs created by compounding pharmacies. In several cases, defendants died agonizing deaths, leading to cruel or inhuman punishment claims. States have reacted differently to the problem. In Oregon, for example, after a ten-year governor's moratorium on executions, the outgoing governor commuted the death sentences of all death row prisoners to life in prison without the possibility of parole. Conversely, in Idaho, the state legislature just introduced a bill to bring back the firing squad as a form of execution. Lori's defense argument fails to consider that it could be thirty years before her appeals are exhausted, and any death sentence might be carried out, and much could change by then. I don't believe Judge Boyce will dismiss the death penalty in this case, but it was important for the defense to bring up the issue so that it can be reviewed on appeal.

The state has filed its objection to Lori's Motion to Dismiss the Death Penalty. First, the prosecution argues that the issue is not ripe. Ripeness is a term used in the law to indicate whether an issue is ready for decision. The state contends that a motion to dismiss the death penalty is not ripe unless and until the death penalty is imposed. Second, they argue that even if the court finds the issues ripe for decision, media saturation is not a valid ground on which to dismiss the death penalty. The prosecution argues that the court has taken measures to limit prejudicial trial publicity and that the defense will have ample opportunity to question potential jurors to determine their potential bias. Third, they claim the alleged discovery violations are not grounds to dismiss the death penalty. The prosecution says there is no legal authority to dismiss the death penalty because of discovery violations and that they have complied with the discovery rules. They also try to shift the responsibility to the defense by saying they revealed in the state's first discovery response that recorded jail calls and visits existed and would be turned over by July 15, 2021. They report that “due to an oversight,” the recordings were not provided, but since they told the defense they existed, it's the defense's fault for not following up. They say they reviewed the jail calls and visits and provided the details of any jail calls or visits the state believed might contain inculpatory or exculpatory information. Finally, the state argues that the death penalty is a constitutionally available sentence, that Lori Vallow Daybell's mental illness does not preclude its imposition, and that, further, the method or manner of imposing the death penalty is not ripe for consideration. The defense filed a further response by including an affidavit from Mary Goody, their mitigation specialist.

Let's take each of these arguments in turn.

Ripeness. The prosecution may be right on this. Determining the death penalty's constitutionality can only occur once the ultimate punishment is imposed. As an appellate issue, I think the argument that the death penalty should be dismissed before it is imposed is dead on arrival. Nonetheless, the other arguments in the motion bear discussion.

Media Saturation. Again, I think this argument fails. If the court had not taken what seems Draconian steps to obstruct public access to the trial, perhaps the defense would have had an argument. Admittedly, the worldwide media attention and the amount of primetime programming about the case are not ideal. Still, since my move to Boise, I routinely run into people who know little or nothing about the case.

Discovery Violations. Perhaps it is because I am a former defense attorney, but I find the ongoing discovery issues beyond outrageous. Every time I read about new discovery, it makes my blood boil, and I honestly don't know how Jim Archibald, John Thomas, and John Prior are keeping their blood pressure within manageable limits. I will say it again. The prosecution has spent a whopping $3.6 million on this case before it has even come to trial. They hired Rachel Smith to consult and assist at the cost of somewhere between $8,000 and $10,000 per month (including her travel, per diem, and lodging); they should have hired an experienced discovery clerk whose only job was to manage the “voluminous discovery” they are always talking about. Here is the point that the prosecution simply does not seem to understand, no matter how many times they are reminded: the state is not the arbiter of whether the information is important. They are legally obligated to turn over ALL discovery, and it's up to the defense to determine whether the information is legally relevant or bears further investigation. Instead, the prosecution insists on telling the court that whatever they might have overlooked wasn't important anyway. John Prior is right to be outraged. As he has said over and over, “they don't get to decide.” The defense has filed an affidavit from their mitigation specialist, Mary Goody, further outlining the handicap they are operating under because of the lack of discovery. How are we eighteen days (that's 432 hours) from trial, and the state has provided a witness list to the defense with no contact information for the witnesses? It's highly unlikely that the judge will dismiss the death penalty because of discovery violations, and the appeals court probably won't either.

That said, this is just more ammunition for the appeals court to grant a new trial because of the state's sloppy, fast, and loose treatment of the discovery rules. Mark my words: we will be back here in a year or two for a new trial for Lori Vallow Daybell. If the citizens of Idaho are outraged at the cost now, they haven't seen anything yet, and the blame falls squarely on the shoulders of their elected law enforcement officers. As you might recall, the former Fremont County Prosecutor, Marcia Murdock, turned the Tammy Daybell case over to the Idaho Attorney General's office because she felt her county wasn't equipped to handle the case. She believed the experience and resources of the Idaho AG were necessary to prosecute the case effectively. When Murdock didn't run for reelection, Lindsey Blake was elected. In the meantime, the children's bodies were found in Chad's backyard in Fremont County. One of Blake's first official acts was to take Tammy's case back from the state AG. Madison County Prosecutor Rob Wood was appointed a special prosecutor on the case. Together, they have the responsibility to prosecute the case effectively. I hope the voters of Madison and Fremont counties consider that in their next election cycle.

Mental Illness. This has become the thorniest issue for trial. The state has offered an affidavit from Dr. Michael Welner. It is full of fascinating information. If Lori is convicted, this will be one of the central issues on appeal. Is it constitutional to execute a person who is mentally ill? I will be discussing this tonight on our True Crime Wednesday YouTube Live.  Tune in at 6 pm PDT or catch the replay at https://youtube.com/live/mQsM2wrOuXk.

Thanks again for all the follows and the subscriptions. Please stick with me on YouTube and here in the newsletter for updates as the trial begins. 

Murdaugh Murders Special

February 26, 2023
 
Hello Good Friends!
 
Let's talk Murdaugh. Those who watch the YouTube channel know I've been watching the trial. I've had many questions about the case, so I thought I'd take a stab at what I would focus on if I were doing the closing argument.
 
The biggest problem for the defense is the kennel video and Alex's lies about it. Alex claimed he lied about being at the kennel that night because he was using opioids and was paranoid. He distrusted SLED (the South Carolina Law Enforcement Department) and thought one of the officers was someone he had seen years ago at a trial and didn't like. He claimed his lawyers and the local sheriff advised him not to talk to law enforcement without a lawyer, which was another reason to lie. Lead Prosecutor Creighton Waters has created a tight timeline. In closing, he will take the jury through that timeline of events moment by moment.
 
Brandi Churchwell creates an excellent timeline at https://brandichurchwell.com/. Follow her on Twitter at https://twitter.com/BrandiNChurch for updates. She lays out the timeline in such detail that it's easy to see how the events unfolded.
 
Creighton Waters asked Murdaugh if he was a "family annihilator," which, of course, Murdaugh denied. It will be interesting to see whether one of Creighton's rebuttal witnesses is an expert on family annihilation. The ideas are well explained in the Spring 2020 scholarly article, Family Annihilators: the Psychological Profiles of Murderous Fathers, University of Albany, State University of New York, by Taylor Oathout. The author categorizes several types of offenders.
 
Anomie – this is the situation where the offender believes his family no longer represents what he thinks it should, so he murders the family as a means of resolving the dissonance. Indeed this was the situation for Murdaugh. His family was prominent and powerful, relying on generational wealth and influence. His son, Paul, who had always skirted on the edge of trouble, brought negative attention to the family when he drunkenly crashed the family boat into a bridge piling, killing Mallory Beach. As a result, the Beach family sued Murdaugh individually in a wrongful death lawsuit, and Paul was criminally charged in the boating accident. Both legal actions were widely reported in the press.
 
Strain. In an expansion of the anomie theory, experts talk about strain. No question that this was the most important contributing factor. The strain came from a variety of sources.

• Disappointment with the family. Murdaugh was troubled by the poor light the family was placed in by Paul's actions. But, unlike the other times Paul had gotten in trouble, the family money and influence could not sweep the boat crash under the rug.

• Social status and paternal expectations. The importance of this factor can't be overstated. It was Murdaugh's great-grandfather who established the law firm where Murdaugh worked. His great-grandfather, grandfather, and father had all been Solicitors of the 14th Circuit. His family had been the law in that county for a hundred years. The family was known for its influence, power, and prestige. Murdaugh sullied the family's reputation with drug use and lack of ambition, which also translated into the permissive parenting that led to the drunken boat crash.

• Economic distress. Obviously, Murdaugh was never good with money. He came from wealth and privilege and never had to worry about it. As a result, he was a poor money manager. He became involved in a series of land deals just before the recession of 2008 and was left holding the bag when his partners could not make the payments on the property. It may have been the beginning of his thefts and money manipulation. Over the years, Murdaugh stole in excess of 8 million dollars from clients and his law partners in an ever more complicated shell game of shifting money from here to there.

• Occupational Challenges. There was a point that Murdaugh hoped to follow in his father and grandfather's footsteps and become the Solicitor of the 14th Circuit. The Solicitor is the chief prosecutor for the district. Murdaugh testified that he didn't pursue election to that job because he feared his drug addiction would be revealed. Murdaugh operated as a volunteer assistant solicitor under his father and later under Randolph's hand-picked successor, Duffy Stone. In that capacity, Murdaugh was issued a law enforcement badge and had blue lights installed on at least one of his vehicles.

• Drug addiction. His expensive opioid addiction undoubtedly exacerbated the money problems, but the assertion that he spent $50,000 weekly on drugs is ludicrous. Murdaugh has admitted to a nearly lifelong addiction to opiates that began after a sports-related knee injury in college. While his wife and children knew the problem, his parents, siblings, close friends, and law partners were not.

• Family Breakdown. There are suggestions that Murdaugh's drug addiction and the financial pressure may have caused fractures in his relationships with his wife, Maggie, and son, Paul. Additionally, Murdaugh's father, Randolph, was gravely ill, and his mother, Libby, was in the late stages of dementia. Father Randolph was the patriarch of the family, the one everyone called when there was trouble.

• Mental Illness. Although this issue has not been addressed directly in the trial, it's hard to imagine Murdaugh wasn't depressed with all the factors we've outlined. Additionally, he testified to bouts of extreme paranoia that bordered on panic.

 
Remorse. Interestingly, the fathers in these cases insist they loved their family members deeply both before and after their murders. They separate themselves from their actions by viewing their emotions or anger as the culprit. In most cases, the father's anger was primarily directed at the spouse, and the children were seen as supporters of their mother. These fathers can separate their actions from their love for the victim and tend to immortalize the loved ones. Does this sound familiar? This is why I hope Creighton calls a rebuttal expert to explain this; I think it could resolve a question the jury may have. There is no question that Murdaugh was horrified by his actions and the condition of his family afterward. It made it easy for him to make the tearful call to 911 and fall into near hysterics seen on the police body cameras and in his initial law enforcement interview. However, he was able to turn his reactions on and off in a way many found odd.
 
Murder-Suicide. According to the article, the perpetrator commits suicide following the murder of their spouse and children in sixty-eight percent of the cases. I think it is possible that Murdaugh intended to commit suicide following the murders but could not bring himself to do it. I also believe this is the reason he arranged the roadside shooting later.
 
The focus on lying and financial crimes. Many talking heads on the news networks commented that the prosecution's focus on the financial crimes was excessive. I disagree. This is a circumstantial case. Murdaugh's lifelong habit of deception, lying, and changing his story to fit the facts is essential to understanding the chain of events that makes up the circumstantial case. The state's theory that the fear of discovery of his financial deception was part of the motive for the murders is important because it supports the theory that Murdaugh was a family annihilator. Additionally, delving into the financial crimes has the added benefit of cementing Murdaugh's confessions under oath. I expect he will plead guilty to the financial crimes if convicted in the murder case.
 
My theory. The experts have opined that Paul was killed first. Studying the evidence, though, I think the opposite makes sense. Alex said he drove a golf cart down to the kennels. I think he had the guns with him. He used two guns because he wanted it to look like two shooters. He used the 300 blackout because he thought he could convince law enforcement that the weapon used was the one that had been stolen years before. Maggie was standing outside next to a doghouse. The reason the defense was able to make so much of the angle of the shots is that Alex fired at Maggie while he was still seated in the golf cart. He stepped off the golf cart to administer the coup de grace shot to the back of Maggie's head, then went to find Paul. When Paul heard the noise of his mother being murdered, he retreated into the feed room, where Alex found him and shot him in the chest. Paul then moved toward his father, probably reaching for him, and that is when Alex fired the second shot. Even Alex was horrified when the blast caused Paul's brain to explode from his head and land on the ground beside him.  
 
Jury reaction. Another thing the network talking heads have reported is that at least two jurors could be seen crying during Murdaugh's testimony. Gigi McKelvey of Pretty Lies and Alibis https://www.youtube.com/@PrettyLiesAndAlibis has been in the courtroom covering the case for Law and Crime Networkhttps://www.youtube.com/@LawAndCrime and reports that she has never seen any member of the jury crying. This is just another case of news sources repeating what they've heard without confirming the truth of the report. It just points out once again the need for each of us to think critically and be careful consumers of internet and news content.
 
Closing argument. Much depends on the prosecution's closing argument. Closing is the time when each side gets to argue their theory of what the evidence shows. While closing arguments are not evidence, for the prosecution, it is a way to synthesize all the evidence they have presented into a cogent and compelling story. For the defense, it's a time to point out the weakness in the prosecution's case.
 
The defense may rest on Monday. The prosecution reports they have two or three rebuttal witnesses, and we could get closing arguments by Wednesday. Join me for True Crime Wednesday at 6 pm Pacific to review the trial progress at https://www.youtube.com/@childrenofdarknessandlight/
 

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What will be decided on February 9, 2023?

What Will the Court Rule
This Week?

February 6, 2023
 
Hello Good Friends!
 
First, thanks to all of you who watch my True Crime Wednesday and Friday night TGIF YouTube offerings. I love spending time with all of you. If you haven’t checked out the show yet, you can find it here: https://www.youtube.com/channel/UC6DDIwubCEwP2U0hIS6NLKg.
 
There are lots of things to talk about in this newsletter, so buckle up because it’s going to be long. First, I’ll outline the recent legal developments in the Vallow/Daybell case, then answer some questions that have come up in the Murdaugh case. The newsletter is where I go in-depth, but I’ve tried to categorize things so you can skip the things you aren’t interested in.
 
Lori Vallow/Chad Daybell. A hearing is scheduled for January 9, 2023, at 9 am in Rexburg. I won’t be attending, because I will be visiting my daughter to help with plans for her wedding.
 
Here are the issues the judge will be decided at that hearing.
 
            Motion to Dismiss for Lack of Speedy Trial. This is Lori’s motion to dismiss her case because her speedy trial rights have been violated. Interestingly, Lori’s team outlines the entire period of her incarceration since her arrest in Hawaii on February 20, 2020. They point out that she has been incarcerated for 1169 days but concede that the time, in this case, runs from when she was arraigned on April 19, 2022. The first trial setting on October 11, 2022, was within her six-month speedy trial window. However, the state asked for a three-month continuance. They argued that they needed to resolve issues surrounding the consumptive DNA testing, and Lori’s new attorneys needed time to get up to speed.
 
The state cited several cases on the subject, “Idaho courts have determined that judicial review was warranted in several instances: in a delay of nine months between complaint and arrest (State v. Holtslander, 102 Idaho 306 (1981)); forty-two days after the expiration of the six-month statutory time period (State v. Beck, 128 Idaho 416 (Ct. App 1996)); and a one-month delay for trial (State v. Wengren, 126 Idaho 662 (Ct. App. 1995)). See also State v. McNew, 131 Idaho 268, 271-272 (Ct. App. 1998) for summary. However, the U.S. Supreme Court has held that for constitutional purposes, a “delay is not presumptively prejudicial until it approaches one year.” Doggett v. United States, 505 U.S 647, 652 n.1 (1992).”
 
Judge Boyce agreed that there was good cause for that first delay and continued the case until January 9, 2023. In late September, Lori’s team once again raised the issue of whether she was competent to aid and assist her in her defense, and on October 6, 2022, Judge Boyce once again continued the case. At the time the judge vacated the January 9, 2023, trial date, Lori’s status was unknown, and the judge, out of an abundance of caution, took the January trial date off, in part because of the tremendous amount of planning that will be required to hold the trial in Ada County. On November 15, 2022, the judge ruled that Lori was competent to stand trial.
 
The question of whether the delay is legal turns on the definition of “good cause.” The controlling Idaho case on the subject is State v. Clark, 135 Idaho 255 (2000). In that case, the court said, “We therefore conclude that good cause means that there is a substantial reason that rises to the level of a legal excuse for the delay. Because there is not a fixed rule for determining good cause for the delay of a trial, the matter is initially left to the discretion of the trial court.” Lori’s defense team contends that there was not good cause for the delay in bringing Lori to trial.
 
The state argues that at least some of the delay must be attributed to Lori and that any delay was for good cause. Let’s remember that in Idaho if the defendant asks for a delay in trial for any reason, even if the later trial setting is within the six-month window, it is considered a waiver of speedy trial. In this case, Lori never asked for a continuance and never waived her right to a speedy trial. However, except for the October 11, 2022, to January 9, 2023 delay, all of the delay was because of issues with her competency. According to the computations of Lori’s attorneys, the resulting delay is about 40 days.
 
I believe the judge will deny this motion. It’s an issue rarely, if ever, decided at the trial level but will undoubtedly be pivotal on appeal.
 
That brings me to the rumors of plea agreements. We have heard in court that plea agreements were offered. Lori’s counsel asked that she be able to meet with Chad to discuss the plea offer, and that motion was denied. Rumors were swirling among people I talked to that plea negotiations were going on. I suspect those discussions were unsuccessful because we have seen a redoubling of trial preparation.
 
Motion for Individual Voir Dire. Typically, jurors are questioned in canvass-style question sessions, where the attorney will ask the entire panel questions and ask people to raise their hand if the question applies to them. For example, an attorney might ask, “how many of you have children?” If a juror raises their hand, the attorney will follow up with questions about how many children and their ages. That kind of questioning is more efficient than individual juror interviews. Lori’s attorneys are asking to interview each juror separately about the most sensitive subjects to protect their case and any personal information a juror might share. What is interesting about that motion is that the defense specifically cites the topics of punishment (whether they could impose the death penalty), mental health issues, domestic violence, or drug use. They contend that the collective style of questioning “as to their familiarity with the crime, the victims, or the prior legal proceedings in this case, will educate all jurors to prejudicial and incompetent material…” The state agrees that the case “necessitates a voir dire process which allows the Court and all parties to ascertain individual jurors’ opinions on certain sensitive topics.” They then ask that the questioning be done in small panels rather than individually. For those watching the Murdaugh case, the jury questioning in the Murdaugh case was done in small panels. That format allows for more individualized questioning while still being efficient. I believe the judge will approve some sort of hybrid, where the initial questions are posed in small panels, and then jurors are pulled in for individual in-depth questions, depending on their answers.
 
Motion to Disclose Penalty Phase Information. Lori’s defense team filed this motion. They ask that the Court order “that the State disclose any information in its possession and/or the possession of any law enforcement agencies which might be potentially relevant or admissible at the penalty phase of this case, should that phase of this case ever be reached.” This is a typical procedural motion. The defense demands that the state turn over any information they intend to offer during the sentencing phase of the trial. The state is required to do so, and Lori’s team is making sure that their request is documented ahead of the penalty phase. The information they are asking for includes information that supports or refutes any statutory aggravating factors, any expressions of remorse by the defendant, cooperation with law enforcement, any information about the defendant’s satisfactory adjustment to incarceration, and any victim impact statements.
 
Motion for Preselection Instructions to Potential Jurors. Throughout the trial process, jurors are given instructions. To ensure those instructions are consistent, they are generally decided before the trial begins. Like most states, Idaho has a set of written uniform jury instructions. However, the court can deviate from those uniform instructions, and lawyers often ask the court to change the wording or tweak the instructions. Jury instructions are given at different times and in different phases of the trial. The defense is asking for the following jury instruction:
 
“Members of the jury, the process we are about to begin is known as voir dire. The attorneys for the State and the Defendant will have the opportunity to ask you questions regarding your qualifications to serve on this jury. It is important that you be as honest as you can be in your responses to questions put to you by counsel.
 
LORI VALLOW DAYBELL is charged with First Degree Murder and Conspiracy to Commit First Degree Murder and Grand Theft. The penalty for both First-Degree Murder, and Conspiracy to Commit First Degree Murder and Grand Theft is either death or life in prison without the possibility of parole. Since one of the possible penalties for the offense of First Degree Murder and/ or Conspiracy to Commit First Degree Murder and Grand Theft is the Death Penalty, it is necessary that counsel ask you certain questions about your views regarding the death penalty.
 
In this regard, I give you the following instructions: The law provides that the jury first hears the case and determines whether the defendant is guilty or not guilty. If the jury finds the defendant not guilty or guilty of an offense other than First-Degree Murder or Conspiracy to Commit First Degree Murder and Grand Theft, your jury service is complete. If the defendant is found guilty of First-Degree Murder and / or Conspiracy to Commit First Degree Murder and Grand Theft then the jury must consider the issue of punishment. If the Defendant is found guilty of First-Degree Murder and /or Conspiracy to Commit First Degree Murder and Grand Theft, then the State and the Defendant have the opportunity to present evidence with regard to punishment. The jury then will hear argument from the State and the Defendant for or against a sentence of death. The Court then will give the jury instructions as to the law that applies regarding punishment.
 
Each juror will be required to decide:
 
(1) Whether the State has proved beyond a reasonable doubt the existence of any aggravating circumstances - the Court will define what constitutes an aggravating circumstance;
(2) Whether the State has proved beyond a reasonable doubt that the aggravating circumstance or circumstances found is, or are, sufficient to outweigh any mitigating circumstance or circumstances that you might find; and (4) Whether the State has proved beyond a reasonable doubt that any aggravating circumstance or circumstances that you find is, or are, when considered together with the mitigating circumstances found, sufficiently substantial to call for the imposition of the death penalty.
 
To repeat, the jury only considers punishment if it first finds the Defendant guilty of First Degree Murder and /or Consporacy [sic] to Commit First Degree Murder and Grand Theft.
 
If you are selected as a juror you will take an oath that you will try all matters that come before you and render true verdicts according to the evidence. If the Defendant is found guilty of First Degree Murder and or Conspiracy to commit First Degree Murder and Grand Theft, then the jurors’ duty would be to follow conscientiously the instructions of the Court regarding the sentence and to consider fairly both of the penalties provided by law -- the death penalty and life imprisonment without parole regardless of your personal views concerning capital punishment. It is acceptable for jurors to have different opinions about the death penalty and to have different views about what circumstances call for the death penalty. You are never required to return a sentence of death in any case. The law does require however, that you give consideration to both penalties notwithstanding your personal views regarding capital punishment, just as it is a juror’s duty to apply the law as the Court explains it to you, not as you think it is or think it should be.
 
The questions counsel will be asking you or similar questions are asked in every case of First Degree Murder and/ or Conspiracy to commit First Degree Murder and Grand Theft in which one of the possible penalties is death. The law requires that such questions be asked. In responding to the questions concerning the death penalty, you must keep in mind your duty as a juror as I have just explained it to you.”
 
The instruction is informative and reasonably neutral. While I don’t know what the judge will rule, I’m interested in what he says about this. Of course, it’s a high-stakes case, and he may stick to the tried-and-true instructions.
 
Discovery Motions. Several discovery motions and motions to compel will be heard on February 9, 2023. At the last hearing, Judge Boyce denied Chad Daybell’s motion to continue the trial. Prior originally asked for a continuance because he needed more time to prepare for a possible mitigation phase by hiring a mitigation specialist. At the hearing, however, Prior focused on the fact that he had still not received the results of the consumptive DNA testing and that some new evidence had recently been discovered and needed to be tested for DNA. He argued that either of the samples could be exculpatory. The judge denied the motion to continue, citing Lori’s lack of speedy trial waiver, but indicated that if the state did not immediately produce the DNA results, the judge would consider severing the cases to allow Daybell more time to investigate the DNA results. The state obtained the DNA data three days later and provided it to the defense. John Prior filed his motion to compel the production of the DNA evidence on the same day the state filed its Discovery Disclosure of the outstanding DNA evidence. Prior still contends that he needs more time for his DNA expert to analyze the results. He also reminded the court that there was an outstanding motion to sever and noticed the parties that the hearing on that motion would also be on February 9, 2023. Expect that day to be a full day of motions.
 
Motion to Sever. Once again, Prior seeks to sever Chad’s trial from Lori’s. While the judge suggested that he might sever if the DNA evidence wasn’t immediately produced, the evidence was provided right away, and I don’t believe he will sever the trials.
 
Motion in Limine. On January 3, 2023, Lori’s team filed a Notice of Intent Not to Raise Mental Health Defense. The state then asked the judge for a pretrial order limiting any evidence on Lori’s mental health. A motion in limine asks the judge to make pretrial evidentiary determinations to ensure that the jury doesn’t hear improper information. The defense objected to the motion. The state wants the court to prohibit the defense from presenting expert witnesses to discuss Lori’s mental health. Idaho Code §18-207(1) provides: “Mental condition shall not be a defense to any charge of criminal conduct.” I.C. §18-207(3) states: “Nothing herein is intended to prevent the admission of expert evidence on the issue of any state of mind which is an element of the offense, subject to the rules of evidence.” The state contends correctly that the defense was required to give notice of their intent to offer any evidence to negate any state of mind element of the charge. Not only did they not give notice, but they specifically said they would not raise the issue. The state wants a pretrial ruling that if it offers evidence of Lori’s beliefs, it won’t “open the door” for the defense to bring up her mental illness. We are going to talk about evidence rule 403 and opening the door in the discussion of the Murdaugh case below, but in short, the state doesn’t want the defense to be able to argue that Lori’s beliefs are a delusional condition. We’ve discussed when a religious belief becomes a diagnosable religious delusion.
 
The defense objection states that they do not intend to call any expert witnesses about Lori’s mental health. They say that Lori’s position is that she did not commit any crime, so there is no mental state to negate. But, they say, Lori’s mental illness is well documented, so they cannot agree that she is free from it. None of their response directly addresses the state’s contention that they should not be able to open the door.
 
Based on the defense’s earlier notice, I believe the judge will rule that they can’t present any information about Lori’s mental health and that the state introducing her religious beliefs will not open the door for the defense to offer any mental health evidence.
 
Other Notices. On January 25, 2023, John Prior filed a Notice of Service. That notice reports that Prior served Daybell’s Notice of Alibi, a disclosure of his intent to call a Forensic Pathologist, and a list of witnesses on the state. This is interesting because, unlike Lori’s attorney, Prior has not filed the Notice of Alibi with the court.
 
Objection to IRE 404(b). Daybell’s attorney has filed something titled Objection to IRE 404(b). The objection is to “the introduction of all requested evidence by the State pursuant to IRE 404(b). The request is not timely. The court must first conduct an evidentiary hearing as it relates to such evidence.” It’s unclear from the caption and the court database which motion this may apply to. There have been several filings and a hearing that were sealed that may relate to this objection. 404(b) specifically relates to prior bad acts. We don’t know what it is that the prosecution wants to introduce. Read on for a discussion of 403 and 404 evidence.
 
Alex Murdaugh and South Carolina Rules of Evidence (SCRE) 403 and 404. In most states, the rules of evidence mirror the Federal Rules of Evidence, with some minor changes. While this discussion is specifically about the rules in South Carolina, the rules in Idaho are similar.
 
There has been much discussion about these rules during the past two weeks of the Alex Murdaugh trial, and many questions. Let’s start with the text of the rules
 
RULE 403
EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR WASTE OF TIME
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Note:
This rule is identical to the federal rule and is consistent with the law in South Carolina. State v. Alexander, 303 S.C. 377, 401 S.E.2d 146 (1991) (relevant evidence may be excluded where its probative value is substantially outweighed by the danger of unfair prejudice); State v. Hess, 279 S.C. 14, 301 S.E.2d 547 (limitation of defense testimony upheld where it was merely cumulative to other testimony), cert. denied, 464 U.S. 827, 104 S.Ct. 100, 78 L.Ed.2d 105 (1983); State v. Gregory, 198 S.C. 98, 16 S.E.2d 532 (1941) (trial judge properly limited the defendant’s presentation of certain evidence to guard against confusion of the jury by the injection of collateral issues).
 
RULE 404
CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTION; OTHER CRIMES
(a) Character Evidence Generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of Accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;
(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(3) Character of Witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.

Note:
Rule 404(a) is identical to the federal rule and is consistent with the law in South Carolina. State v. Peake, 302 S.C. 378, 396 S.E.2d 362 (1990).
Rule 404(a)(1) is identical to the federal rule and is consistent with the law in South Carolina. State v. Lyles, 210 S.C. 87, 41 S.E.2d 625 (1947) (a defendant may put in evidence of his good character); State v. Major, 301 S.C. 181, 391 S.E.2d 235 (1990) (when the accused offers evidence of his good character regarding specific character traits relevant to the crime charged, the state may cross-examine as to acts relating to the traits focused on by the accused).
Rule 404(a)(2) identical to the federal rule and is consistent with the law in South Carolina. State v. Boyd, 126 S.C. 300, 119 S.E. 839 (1923).
Rule 404(b) differs in two respects from the federal rule. First, unlike the federal rule which does not limit the purposes for which evidence of other crimes may be admitted, the South Carolina rule limits the use of evidence of other crimes, wrongs, or acts to those enumerated in State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). See also Citizens Bank of Darlington v. McDonald, 202 S.C. 244, 24 S.E.2d 369 (1943) (Lyle applicable in civil cases). Second, the South Carolina rule does not contain the requirement which is in the federal rule that, upon request by an accused, the prosecution must provide reasonable notice of the general nature of any evidence it intends to introduce under the rule. With the exception of notice of evidence to be used in aggravation in the sentencing phase of capital cases, S.C. Code Ann. § 16-3-20(B) (Supp. 1993), there is no similar requirement under South Carolina law. The rule does not set forth the burden of proof required for the admission of evidence of bad acts, not the subject of a conviction and, therefore, case law would control. State v. Smith, 300 S.C. 216, 387 S.E.2d 245 (1989) (in a criminal case, evidence of other crimes or bad acts must be clear and convincing if the acts are not the subject of a conviction). Further, when the prejudicial effect of evidence substantially outweighs its probative value, the evidence may be excluded under Rule 403, which is consistent with prior case law. State v. Garner, 304 S.C. 220, 403 S.E.2d 631 (1991).
 
 
Under Rule 403, all evidence must be more probative than prejudicial. A good example is State v. Spears 403 S.C. 247, 250 (S.C. Ct. App. 2013). In that case, the defendant was accused of killing a victim who had been convicted in a gang shooting four years prior. The murder occurred just a month after the victim had been released from a prison term for that earlier shooting. The defense argued that introducing the information that the murder was likely a gang-related revenge killing was more prejudicial than probative. Upon completion of the arguments, the trial court found the gang affiliation evidence was relevant, and any danger of unfair prejudice did not substantially outweigh the probative value of the evidence it might have caused. Rules 404(b) and 403 are intertwined and complex to parse out. The defense also argued that the admission of information about the defendant’s gang affiliation was not permitted under Rule 404(b) because it was improper character evidence. The prosecutor argued that the evidence of the defendant’s gang affiliation was necessary to prove motive, intent, common scheme or plan, or identity.
 
The South Carolina Supreme Court ruled in State v. Spears 403 S.C. 247, 250 (S.C. Ct. App. 2013, “South Carolina law precludes evidence of a defendant’s prior crimes or other bad acts to prove the defendant’s guilt for the crime charged, except to establish: (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; or (5) the identity of the perpetrator. Rule 404(b), SCRE. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Rule 403, SCRE. “Unfair prejudice means an undue tendency to suggest [a] decision on an improper basis.” State v. Gilchrist, 329 S.C. 621, 627, 496 S.E.2d 424, 427 (Ct.App.1998). “Once bad act evidence is found admissible under Rule 404(b), the trial court must then conduct the prejudice analysis required by Rule 403, SCRE.” State v. Wallace, 384 S.C. 428, 435, 683 S.E.2d 275, 278 (2009) (emphasis added). The court may exclude the 404(b) evidence if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to the defendant. Id.
 
The judge in Spears allowed the gang- affiliation information to come in but failed to put his analysis of the issue on the record to prove he had conducted the necessary “balancing test.” As a result, the Supreme Court ordered the case remanded to the trial court for a new trial.
 
This is why Judge Newman has carefully heard all the 404 evidence in the Murdaugh case outside the jury’s presence.
 
Now, about “opening the door.” The idea is that if one side raises an issue or area of inquiry that the rules of evidence would otherwise prohibit, they open the door for the other side to pursue that line of investigation. The idea has some limitations because it’s based on assuring the other side isn’t prejudiced by one side’s introduction of prohibited evidence. The easiest example is the one that comes directly from the Murdaugh case. In general, Rule 404(a) prohibits the introduction of a person’s character. However, Murdaugh’s attorneys opened the door on that evidence by asking witnesses whether Murdaugh was a good father and husband and other questions about his overall demeanor. The most explosive question, the one that blew the door open, was the question as to whether the witness could think of any reason Murdaugh might kill his wife and son. It seems like a big blunder for a couple of seasoned lawyers, so it’s unclear what their reasoning was in asking that question. It allowed the state to ask whether the witnesses were aware of Murdaugh’s theft or that he was under pressure from his firm to account for a huge sum of missing money.
 
I expect Judge Newman to rule that Murdaugh’s lawyers opened the door with their questions about his character and to allow the evidence of Murdaugh’s prior bad acts in to prove his motive for the crime.
 
Motive. As anyone who follows true crime already knows, the prosecution need not ever prove motive. Why a crime was committed is never an element of the crime. But juries are human, and it’s human nature to wonder why a crime was committed. It’s certainly difficult to fathom why someone would brutally murder their wife and son, and it will be easier for the jury to convict if they understand some reason for the crime, no matter how irrational. So let’s look at the state’s theory about Murdaugh’s motive.
 
Alex Murdaugh had been stealing money from clients since 2010. The pace of his theft picked up over time. He stole money in several ways; he misdirected client money into his own accounts, he took attorney fees that should have been paid to his firm, and he borrowed money from client accounts with the help of his friendly banker. The entire scheme came to light when Murdaugh tried to keep a $792,000 fee that should have been turned over to his firm. The case was handled jointly with his best friend, lawyer Chris Wilson. When Wilson distributed the settlement proceeds, Murdaugh told his friend that he was attempting to structure the fees into an annuity for his wife (and thereby shelter it from being seized in a pending lawsuit against him). He told Wilson his firm knew about the deal and was aware the payout was being made directly to him. Murdaugh received the payment for his fees, but when his firm began to question where the money was, he returned most of the proceeds ($600,000) to Chris Wilson’s lawyer trust account and asked Wilson to confirm to the firm that the money was still in Wilson’s account. Lawyer trust accounts contain money that belongs to someone other than the lawyer. They are monitored by the state bar, and irregularities can result in disbarment. When Wilson realized the money he had paid Murdaugh belonged to Murdaugh’s firm, he panicked, made up the remaining $192,000 from his own funds, and then notified Murdaugh’s firm the money was in his trust account.
 
The morning of the murders, his firm’s Chief Financial Officer confronted Murdaugh about all the irregularities, including accusing him of misdirecting client money for his own use. In the middle of that meeting, Murdaugh took a call. The call was from a family member telling him that his father, Randolph Murdaugh (who had also been a member of the firm), was dying. The CFO, who had been with the company a long time, immediately dropped the subject of the misappropriation and became a concerned friend. That was when Murdaugh understood that if he could shift the narrative and appear as a victim, he could buy himself some time. He was trying to refinance his real property to make up for some of the shortfalls. He thought he could move things around and cover his tracks with enough time. His aging father’s impending death had gained him some time, but he couldn’t be sure when and if his father would die. In his panicky and irrational state of mind, he saw putting himself in the position of grieving spouse and father as the only alternative to buy him the extra time he needed. While most people would see this as an absurd reaction, it made sense to Alex Murdaugh in the moment. Maggie’s estate was worth about $5 million. He had moved the real property into her name to protect it from seizure, but she was being difficult about refinancing the properties. It’s possible his son, Paul, was simply collateral damage. Still, Paul was also the primary defendant in a multimillion-dollar wrongful death case, and his death would make that case more difficult for the plaintiffs to pursue.
 
Alex Murdaugh’s decision to murder his wife and son was the action of a panicky narcissist in search of a quick solution to an impending disaster of his own making.
 
It will be up to the jury to decide how much, if any, weight to give the state’s theory.  
 

A few other items of note, Kay and Larry Woodcock have encouraged the community to write to Judge Boyce to encourage him to reconsider this ban on cameras in the courtroom at trial. If you are interested in writing a letter at Kay and Larry’s request, you can address it to:
 

The Honorable Steven W. Boyce
c/o Clerk of the Court
Regarding Case Numbers CR22-21-1623 and CR22-21-1624
Fremont County Court
151 W. 1st N.
Saint Anthony, ID 83445

Will Lori's case be dismissed?

Hello, my Good Friends!
 
There have been some developments in the Vallow/Daybell case that need discussion. Both sides have filed new documents with the court in the past week. Here is the lineup of new documents and who filed them.
 
All outstanding motions will be heard on February 9, 2023, at 9 am.
 

• Discovery Disclosure – filed by the prosecution. This document indicates that they provided DNA reports to the defense. These are the reports John Prior complained he did not have when he asked for a continuance. If you recall, the judge denied Prior’s motion to postpone the trial but commented that unless the reports were received promptly, he would consider severing the trials to permit Daybell time to receive and analyze the information. I seem to recall predicting that the prosecutors would move heaven and Earth to get those results. The hearing on the motion was on Thursday, January 19, 2023. By Wednesday, January 25, 2023, just three working days later, those reports were provided to the defense.

• Motion to Extend Time For Disclosure of Witnesses and Expert Witness Opinion and Reports – filed by John Prior. Prior is asking to extend the date to disclose his pretrial witnesses and their reports. This is because of the delay in receiving the DNA reports. This motion was filed the same day as the discovery disclosure, and they may have crossed in the mail.

• Motion to Sever – filed by John Prior. Prior said, during the January 19, 2023, hearing, there was still a pending motion to sever the cases. He’s asking the court to rule on it. Again, this hearing notice likely crossed in the mail with the delivery of the DNA reports. Expect the judge to deny this motion.

• Motion to Compel – filed by the prosecution in Lori’s case. The state says that the defense has failed to specify times in their alibi notice. They are right; the notice is breathtakingly vague. They also want the list of experts or evidence the defense plans to use in the penalty phase. I expect that the judge will order them to provide the information.

 
Now the big one:

• Motion to Dismiss for Speedy Trial Violation. As is my practice, I’m outlining the law and giving you my analysis. Idaho law requires that a defendant in a felony case be tried within six months of the date they are arraigned on the indictment unless they waive their speedy trial right or there is good cause. In Idaho, if a defendant asks for a postponement of their trial date, even if the trial is reset within the six-month period, it’s considered a waiver of the speedy trial right. Lori’s commitment is not considered a voluntary delay on the defendant's part. So the question is whether there is good cause for the delay. Remember, Jim Archibald said that taking into account all the delay for Lori’s commitment and the most recent period when the January trial was vacated because she needed a new competency evaluation, they believe the trial should have been scheduled to start no later than February 21, 2023. Instead, the trial is scheduled for April 3, 2023. That means that the trial will begin 41 days later than Archibald calculated. The primary case on the issue is State v. Clark, 135 Idaho 255 (2000). Before that case, the problem in Idaho was controlled by a U.S. Supreme court case called Barker v. Wingo, 407 U.S. 514 (1972). Barker enumerated a list of factors to be considered. Clark takes a more holistic approach.

 
Quoting Clark, “But as the Iowa Supreme Court noted in State v. Peterson, the reason for the delay "cannot be evaluated entirely in a vacuum." 288 N.W.2d 332, 335 (Iowa 1980). The good cause determination may take into account the factors listed in Barker. The Barker factors, however, considered only as surrounding circumstances . . . are important, if at all, only insofar as they bear on the sufficiency of the reason itself. The shortness of the period, the failure of the defendant to demand a speedy trial, and the absence of prejudice are legitimate considerations only insofar as they affect the strength of the reason for delay. This means that, to whatever extent the delay has been a short one, or the defendant has not demanded a speedy trial, or is not prejudiced, a weaker reason will constitute good cause. On the other hand, if the delay has been a long one, or if the defendant has demanded a speedy trial, or is prejudiced, a stronger reason is necessary to constitute good cause.
 
Thus, the ultimate question of whether legal excuse has been shown is a matter for judicial determination upon the facts and circumstances of each case.”
           
The case also leaves the decision to the trial court's discretion, meaning that the appeals court will only review the decision if there is evidence that the judge abused their discretion.
 
            What does this mean for the upcoming trial and any subsequent appeal? Archibald’s motion allows Judge Boyce to clearly enumerate the facts he considered and his reasons for allowing the delay. The factors that support a finding of good cause are that the delay was brief, the delay was necessary because the change of venue required coordination with the Ada County court docket, the delay did not prejudice either defendant and may actually have benefitted the defendant by allowing her to obtain the DNA samples that were recently provided on January 25, 2023. The factor that could weigh against would be any showing of prejudice. Ultimately, I expect Judge Boyce will deny the motion and let the trial go forward on April 3, 2023. If Lori is convicted, any real consideration of the issue will be done by the Idaho Supreme Court in post-conviction motions. If she is acquitted, all of the future appellate challenges become moot.
 
Judge Boyce also issued orders from the January 19, 2023, hearing denying the meeting between Lori and Chad requested by Lori’s attorney and denying the motion to sequester the jury.
 
            There were hearings on January 19, 2023, and January 27, 2023. The court ordered both sealed. The first seems to be the result of an ex parte motion. Ex parte is Latin for one party, meaning one side appeared without the other. In the past, an ex parte motion meant a request to review competency, so I think many people jumped to the conclusion that there could be another motion about competency, but that’s not the case. The order that closed the hearing says that the purpose of the hearing was to review documents en camera. That means that one side asked the judge to review documents in chambers to determine whether they could be introduced at trial. That usually involves medical or mental health records. The second hearing, on January 27, 2023, also cites ICAR 32(g)(15), which applies to “documents filed or lodged with the court in camera. It appears this hearing may have been to give the parties the court’s decision from the January 19, 2023, hearing.
 
            There is a hearing scheduled today, January 31, 2023. The court issued an order sealing that proceeding too. The order indicates the purpose of the hearing is to review the juror questionnaires.
 

 

 
Join me at https://www.youtube.com/@childrenofdarknessandlight on Wednesdays at 6 pm Pacific for True Crime Wednesday, discussions of cases in the headlines, and on Fridays at 6 pm Pacific for TGIF - a discussion of all things Vallow/Daybell. Subscribe and like soon!
 
Free wristbands are still available. Send a self-addressed stamped envelope to
 
Lori Hellis
104 E. Fairview, Box 381
Meridian, Idaho 83642

Don’t forget our True Crime Quilt Guild. You can Don't forget our True Crime Quilt Guild! Check out the first instruction video here: https://youtu.be/UbPGQ20qAvo
 
To get started, download the pattern from Etsy here:
https://www.etsy.com/listing/229677900/stepping-stones-sampler-quilt-pattern.
 
The cost is $12. Use coupon code THANKYOU22 for 25% off. Additional instruction: https://www.pamelaquilts.com/p/stepping-stones-sampler.html

A few other items of note, Kay and Larry Woodcock have encouraged the community to write to Judge Boyce to encourage him to reconsider this ban on cameras in the courtroom at trial. If you are interested in writing a letter at Kay and Larry’s request, you can address it to:
 

The Honorable Steven W. Boyce
c/o Clerk of the Court
Regarding Case Numbers CR22-21-1623 and CR22-21-1624
Fremont County Court
151 W. 1st N.
Saint Anthony, ID 83445

Free wristbands are still available. Send a self-addressed stamped envelope to
 

Lori Hellis
104 E. Fairview, Box 381
Meridian, Idaho 83642

Part Two - What is Pattern Evidence?

There have been quite a few questions about why the pretrial motions in the Murdaugh case included challenging ballistics evidence, so this special edition will discuss pattern-matching evidence, so-called junk science, and the place where science and the law collide.
 
The law and science are rarely comfortable bedfellows because the law develops slowly, with time and precedent, while science often changes rapidly as new technology develops. One needs to look no further than the use of DNA to see the proof. DNA evidence continues to cement convictions and exonerate the innocent.
 
In contrast, many time-tested and widely accepted so-called scientific methods have been called into question since the publication of a 2009 study by the National Academy of Science. Among the disciplines called into question are ballistics, bite marks, tool marks, tire and footwear patterns, blood spatter, handwriting, fingerprint identification, and hair analysis. Each of those disciplines requires that a person match the patterns present to make a subjective determination of the differences and similarities. While some of the analysis is now done by computers, the underlying programming of the comparison software is still done by humans who tell the computer which patterns match.
 
This concern about the subjectivity of pattern-matching evidence has opened the door for defense attorneys to challenge the scientific basis of evidence that was once automatically admitted under the Daubert standard. In the case, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993), the U.S. Supreme Court held that the subject of an expert’s testimony must be based on “scientific knowledge” that “establishes a “standard of evidentiary reliability.” The Court further explained that “scientific knowledge” means the expert’s opinion must be more than a subjective belief or mere speculation. 
 
Consider the case of Brandon Mayfield. Mayfield was a Portland, Oregon, lawyer who converted to Islam after marrying his Egyptian wife. Like all attorneys, Mayfield submitted his fingerprints along with his application for admission to the Oregon State Bar. As a family law attorney, he represented Jeffery Battle in a child custody case. Battle was later convicted of trying to travel to Afghanistan to help the Taliban. It became a case of guilt by association. When a train was bombed in Madrid, Spain, in 2004, Spanish authorities identified a partial fingerprint from a bag containing bomb detonators. The partial fingerprint was shared with the FBI, who produced a list of 20 possible matches, including Mayfield. Even though there was no evidence Mayfield had ever traveled to Spain, and the Spanish government disputed the match, the FBI concluded Mayfield was a “100 percent match.” As a result, Mayfield’s home and law office were searched, including searches through his confidential legal files. The FBI secured orders to place listening devices in his home and wiretap his home and his office phones. Mayfield was arrested and held for nearly a month on a material witness warrant, even though the FBI had been notified a month before his arrest that Spanish authorities had excluded Mayfield as a suspect in the bombing. As a material witness, Mayfield was denied access to an attorney or permitted to see his family. Mayfield later settled a civil suit false imprisonment suit for $2 million. Mayfield’s case serves as a cautionary tale and may have contributed to the 2005 legislation that directed the National Academy of Sciences to conduct the study of forensic science.
 
Along with pattern evidence, the assigned committee was tasked with examining the protocols for DNA, paint analysis, chemical analysis including drugs, fibers, serology fire and explosives, and digital analysis. They were also asked to compare coroner systems with those using medical examiners.
 
The PDF of the report can be found here: http://www.nap.edu/catalog/12589.html.
 
This week, there have been pretrial motions in the Alex Murdaugh case challenging the science of ballistics evidence. As we also saw in the Delphi case, bullets or shell casings have been collected and subjected to tool mark analysis. This involves comparing minute scratches to bullets and casings with bullets and casings known to have been fired or worked through a specific gun. Once again, the comparison requires the subjective analysis of a human technician.
 
In both Delphi and Murdaugh, the comparison was to other shells that had been worked through the action of a particular gun. In Delphi, the state claims that a bullet found near the bodies of Abby Williams and Libby German had been cycled through a gun belonging to suspect Richard Allen. In the Murdaugh case, the prosecution claims that the Murdaugh family owned two guns of the type used to murder Maggie Murdaugh. One of those guns, presumed to be the murder weapon, is missing. Shell casings found at the scene had been worked through the action of the remaining gun. This evidence that the ammunition used to kill Maggie Murdaugh was once in possession of the Murdaugh family is a link in the circumstantial evidence chain leading to the conclusion that Alex Murdaugh killed his wife and son.
 
Murdaugh’s attorney, Dick Harpootlian, argued that tool-mark evidence lacks scientific reliability and so should be excluded. The judge denied the motion. The precedent beginning with Daubert is well established, so a trial-level judge would be unlikely to go out on a limb and declare the ballistic evidence scientifically unreliable. Still, it sets up an appeal for the defense, which is why Harpootlian raised it.
 
We will see many more challenges to this so-called scientific pattern evidence. For example, look for challenges to blood spatter and tire and shoe imprint evidence in the Kohberger case.
 

Special Edition - Bryan Kohberger Lawyer Conflict of Interest?

January 24, 2023
 
This special edition of the newsletter focuses on the University of Idaho murders.
 
While I try to keep this newsletter focused on the legal issues in the Vallow/ Daybell case, there have been many questions about a recent development in the Bryan Kohberger case. It seems that Kohberger’s attorney, Ann Taylor, was also representing Cara Kernodle, the mother of Kohberger’s alleged victim Xana Kernodle. Taylor recently withdrew from Kernodle’s case. Many have questioned how this could happen and whether this constitutes a conflict of interest. It doesn’t, and
 
To sort this out, we must carefully examine the Idaho Rules of Professional Conduct.
 
RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by the personal interests of the lawyer, relationships.
 
There is commentary provided in addition to the rules to provide further guidance. The commentary to this section reads:
 
[2] Resolution of a conflict of interest problem under this Rule requires the lawyer to 1) clearly identify the client or clients; 2) determine whether a conflict of interest exists; 3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable; and 4) if so, consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing. The clients affected under paragraph (a) include both of the clients referred to in 15 IRPC Effective 7-1-14 paragraph (a)(1) and the one or more clients whose representation might be materially limited under paragraph (a)(2).
 
Generally, a conflict arises when one client is directly adverse to another. This idea of being directly adverse has a specific definition in legal ethics. This is why, in the Vallow/Daybell case, attorney Mark Means was ultimately disqualified because of a conflict. According to his own representation to the judge, Means had previously represented Chad Daybell for a brief period in the same matter, the disappearance of Lori Vallow’s children. That means that two of his clients were directly adverse to each other.
 
In this case, Ms. Taylor never represented Cara Kernodle in any case that would make her directly adverse to Bryan Kohberger. In the Kohberger case, Kernodle is the mother of an alleged victim of the defendant. In Cara Kernodle’s case, she is accused of possession of a controlled substance – a case that in no way involves Bryan Kohberger. According to the court database, Cara Kernodle retained Ann Taylor to represent her. Neither knew at the time that the state office of public defense would appoint Taylor to represent the alleged murderer of Kernodle’s daughter, Xana. Cara Kernodle has a lengthy criminal history, most of it relating to drugs and alcohol. There is also evidence in the court record of family disruption and parental discord for Xana and her sister. None of that overlaps in any way that we know of with Bryan Kohberger.
 
If Ms. Taylor had previously represented the victim, Xana, the analysis would be different because, in that case, there would be a chance Ms. Taylor could have learned information about Xana that could later be used at trial to discredit her as a victim or call the circumstances of the crime into question.
 
It is not unusual in smaller jurisdictions for these kinds of situations to arise. To further complicate the situation, Ms. Taylor is one of only 29 lawyers on the state’s Capital Counsel Roster. Of those 29, only 14, including Ann Taylor, are qualified as lead counsel on capital cases, and Taylor is the only qualified lead attorney in her district.
 
If Ms. Taylor had a question about whether she had a conflict of interest, she would most certainly have consulted with the experts at the Idaho State Bar.
 
Here is the breakdown of my analysis.
 

• Taylor was retained to represent Cara Kernodle in a drug possession case. There was no way either could know that the state would later appoint Taylor to represent the alleged murderer of Kernodle’s daughter.

• Many other attorneys are qualified to represent a client in a simple drug possession case.

• Taylor is the only lead-counsel-qualified capital attorney in the district where the Kohberger case arose.

• Taylor’s acceptance of the Kohberger case is not a conflict because she has never represented anyone directly adverse to Kohberger, and her representation of Kernodle in an unrelated case would not materially limit her responsibilities to Kohberger.

• Taylor’s withdrawal from Kernodle’s case was advisable out of respect for her and to assure that there was no appearance of impropriety or conflict.

 
I know this FEELS like it might be a conflict of interest, but it’s not.

Will there be MORE delay? And was Bryan Kohberger trolling the online disscussions?

January 5, 2023
 
Hello, Good Friends of the Good Lori!
 
I hope you all had wonderful Christmas and New Year celebrations with family and friends. Our holiday with our daughter, future son-in-law, and his family was everything we could have hoped for and more. We are grateful that our families have become so close.
 
There have been some BIG developments in two cases that we need to talk about. There is so much to talk about that this will be a long newsletter. I’ve tried to divide it with headings so you can skip things that don’t interest you.
 
University of Idaho Murders.
 
As I am sure you are all aware, there was an arrest in the Idaho college murders. Twenty-eight-year-old Bryan Kohberger was arrested on Friday, December 30, 2022. He was arrested at his family’s home in Pennsylvania and extradited to Idaho. He arrived in Idaho yesterday and appeared in court today for his initial appearance. Following today’s court appearance, the probable cause affidavit was unsealed. The affidavit contained a lot of significant information.
 
Kohberger attended Northampton Community College and DeSales University. He has associate’s and bachelor’s degrees in psychology and a master’s degree in criminal justice. He was in the first semester of his Ph.D. study at Washington State University in Pullman, Washington. The Washington State University and the University of Idaho campuses are only a few miles away, across the Washington-Idaho border.
 
The probable cause affidavit is detailed and very revealing. The Moscow police did an excellent job of investigating and documenting the case. They were methodical and thorough. There is some eerie online information that I’ll talk about below.
 
The affidavit reveals that the sheath from a Ka-Bar knife was left at the scene. Touch DNA was lifted from the snap closure. According to the affidavit, law enforcement knew much more about the Hyundai Elantra than they let on. They quickly identified the vehicle and its owner. They knew the vehicle was registered to a student at WSU and that he had been pulled over by campus police earlier. As a result of that stop, they also had his phone number. They began pulling phone records and GPS location data for the phone immediately.  
 
Since Kohberger had no previous criminal history and had not been a military or law enforcement member, his DNA would not have been in the national database. That led law enforcement to seek familial matches.
 
On December 27, 2022, law enforcement in Pennsylvania recovered items from the trash at the home of Kohberger’s parents. They were able to lift DNA from the garbage that was consistent with the biological father of the depositor of the DNA on the knife sheath found at the scene. The results excluded 99.99% of the population from being the biological father of Kohberger. The familial link, combined with other information developed in Idaho, was enough to get the arrest warrant for Kohberger.
 
After the murders, Kohberger re-registered the Hyundai Elantra in Idaho. I’m not sure how much to make of this. While I think he thought it might help throw law enforcement off if they were looking for a car with Pennsylvania plates, I also noticed that the Pennsylvania registration expired in November 2022, meaning he had to re-register the vehicle or risk being pulled over for expired tags.
 
Here is the eerie part. It appears that after the murders, Kohberger was trolling the Reddit and Facebook sites that were following the case. The information has been reviewed on the Reporter Room YouTube channel. I don’t know this creator, but her video about the possible link between Kohberger and the online groups following the case is chilling. You can see it here: https://www.youtube.com/watch?v=kHmumYFxX64ç
 
Kohberger actually appears to have recorded himself outlining his theories of the case, including the order in which the murders happened. In the recording, he claims to be a family member of someone close to the investigation. A person who knows him has said the recording sounds like Kohberger. In the recording, the poster “theorizes” that the killer started on the third floor with Xana and Ethan, then moved to the second floor for Kaylee and Maddie. He says the killer “cleanly and quietly unalived the first victim.” Does that sound slightly congratulatory? He then says the second victim attempted to run and screamed loudly as he grabbed her. He “theorizes” that the wounds were of such force because he was “delivering it quickly and forcibly to quiet her.” This may answer why he didn’t kill the roommates on the ground floor. The scream apparently spooked him and caused him to leave before he intended.
 
The probable cause affidavit indicates that one of the roommates on the ground floor heard the scream. She opened her door because of odd noises on several occasions. On the last occasion, she saw a man dressed in dark clothing and a mask quickly exit the apartment.  
 
Kohberger also appears to have suggested a “theory” that the killer left the knife sheath behind (a fact that, until yesterday, only the killer could have known) and argued with a fellow Reddit poster who thought the sheath theory was silly.  
 
As you all know, I like and respect Scott Reisch – but reasonable minds can differ. Scott felt the Idaho case had gone cold. I disagreed and pointed out that there was a mountain of information to sift through. Little did we know how much information law enforcement already knew about the suspect.
 
It seems that the small community of Moscow did a professional job of the investigation. While we don’t have all the information in the Vallow/Daybell case, it appears Fremont and Madison Counties could take a lesson from Moscow.
 
And speaking of Vallow/Daybell, there is some juicy news to report there too.
 
Scheduling Order and Prior’s objection. On December 16, 2022, Judge Stephen Boyce issued a scheduling order in the Vallow and Daybell cases. These orders are standard in complex cases and set deadlines for preliminary actions and issues. In this case, the judge set a deadline of January 9, 2023, for each side to develop and identify appropriate juror questions that will be included in a juror questionnaire. Juror questionnaires are essential in complex, high-profile cases where many potential jurors are summoned. The juror questionnaire helps quickly identify jurors who could not be available or are disqualified by age, health, or disability. It also helps identify qualified jurors.
 
On December 23, 2022, Chad Daybell’s lawyer, John Prior, objected to the January 9, 2023, deadline for the jury questionnaire questions claiming that he needs more time to work through his mitigation theory before identifying appropriate questions for the jury. While Prior is probably right, it points out the corner Judge Boyce has painted himself into.
 
The selected jurors will decide both the guilt/innocence phase of the trial and the penalty phase. During the penalty phase, the jury will determine whether the death penalty should be imposed. Because of that, assuring you have a qualified jury is critical.
 
Prior’s motion contains an interesting tidbit. Prior tells the court that he anticipates filing a new motion to continue. He says it is because he has or will be asking the court to appoint a capital-qualified attorney. The information is buried in a footnote, “The Court also noted, ‘the purely speculative argument that some other attorney may at some point join the defense team and the new attorney would need time to prepare….’ At the time of the filing of the previous Motion to Continue, Mr. Daybell had not yet requested the appointment of an additional, capital-qualified attorney to the defense team. He has now done so, and the reason is no longer speculative.”
 
This development puts Judge Boyce between a rock and a hard place of his own making. Lori Vallow has not waived her right to a speedy trial, and the judge has declined to sever the trials on more than one occasion. According to Vallow’s attorneys, the trial must be set before February 21, 2023. Jim Archibald announced in court that unless the trial date was set before then, he would be filing a motion to dismiss her charges. After consulting with Ada County, Judge Boyce set the trial for April 3, 2023. He also indicated he hoped jury selection could begin in late March so the trial could start promptly on April 3.
 
Now, Daybell is asking for a continuance and hinting that he hopes for a date in October 2023. That puts Judge Boyce in a difficult spot. Whose rights does he compromise?
 
On January 4, 2023, Boyce DENIED Prior’s motion to change the date the jury questions were due. That’s big. Or, to quote Mandy Matney of the Murdaugh Murders Podcast, “That’s a big deal.” It’s a big deal because it confirms what I’ve said since Prior filed his motion: Judge Boyce will deny any further continuances and order the case be tried beginning on April 3, 2023.
 
Here is my thought process. Some constitutional challenges are weightier than others. If an appeals court were to find that Lori Vallow’s speedy trial rights were violated, they could order the case against her dismissed. Whether the state could refile would depend on the findings of the Idaho supreme court. If the court found that the delay was extensive and egregious, they could dismiss Vallow’s case “with prejudice,” meaning it could not be refiled.
 
If the case goes to trial as scheduled, the chances of that are slim. The statute allows the court to delay past a speedy trial deadline for “good cause.” I think Judge Boyce can argue for good cause for the brief delay from February 21 to April 3 by explaining the need to accommodate the schedule of the Ada County Courthouse in a high-profile case. That leaves Daybell with the argument that he had ineffective assistance of counsel because he was forced to go to trial too soon. As I’ve explained before, the rule on ineffective assistance of counsel is hard to meet.
 
The case of Strickland v. Washington, 466 U.S. 668 (1984) is the case that sets out the rules. Strickland says there is a two-prong test. First, the defendant must show that their trial lawyer’s performance fell below an objective standard of reasonableness, and second, that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.
 
Let’s look at each question. First, the lawyer’s performance must have been unreasonable in the specific situation and under the specific facts as given. That means that Prior’s performance must be judged to have fallen below the standard of a reasonably competent lawyer in the same situation. Second, the defendant must be able to show that the outcome of the case (the verdict) would have been different if not for the lawyer’s ineffective assistance.
 
The appeal for ineffective assistance of counsel probably fails for both reasons. First, as long as Prior does what a reasonable attorney would do in his circumstances, he is providing effective assistance. He continues asking for a continuance and for the cases to be severed.
 
To sum up, the consequence of setting the trial date beyond April 3, 2023, is far more severe than the consequence of holding the trial in April and risking an appeal on ineffective assistance of counsel. There are only two alternatives, sever the cases and permit Chad to go to trial in the fall while keeping the trial date for Lori, or force both to trial in April. Given Judge Boyce’s prior decisions on severance and his apparent dislike for being called out or backing down, I’d say the likelihood of him reversing himself and severing the cases is nearly nonexistent. I expect we will see the trial begin on April 3, 2023.
 
Lori Vallow’s Mental Health. For months we have heard from Jim Archibald that the defense intended to raise the issue of Lori’s mental health. Archibald said as recently as early December that we would hear about Lori’s mental health diagnosis at trial. Then, in a sharp about-face, on January 3, 2023, her lawyers filed a document titled “Notice of Intent Not to Raise the Mental Health Defense. What the actual hell?
 
As you know, Idaho does not have the insanity defense; the state has also not instituted the Guilty But Insane (GBI) plea that many states have put in place of the defense of insanity. In states where the insanity defense is allowed, it is a defense that excuses the crime and relieves the defendant of any culpability if it can be proven that the defendant was insane at the time of the act. In Idaho, the only way to use the defendant’s mental health is to allege that the defendant had a severe mental disease or defect that precluded the defendant from forming the required mental state (usually intentionally or knowingly). It appeared that Lori’s attorneys intended to present evidence of her mental disease or defect to try and prove she was so ill she could not form the intent to kill. From the beginning, the argument seemed weak, given that Lori appeared to do so many clear, cold, and calculated things.
 
Lori’s attorneys explained in the notice that the law requires that if they intend to call an expert witness to negate an element of the crime (such as the mental state), they must provide the prosecution with that expert’s name not less than 90 days before the trial begins. The rule applies to the guilt/innocence phase; they do not have to provide the same notice in the penalty phase. The attorneys also revealed that the defense hired three experts to examine Vallow. Dr. Michael Welner was mentioned in the caption of one of the sealed documents. While it’s unclear if Welner actually examined Vallow, he is the forensic psychiatrist who determined that Brian David Mitchell was malingering in the Elizabeth Smart case. Could it be that her own attorneys suspected Vallow of malingering? These questions will only be answered once the trial is over and there is access to the documents.
 
Vallow’s attorneys also report that she does not want to go forward with a mental health defense. Her attorneys are legally and ethically required to follow the direction of their client as long as she is competent, even if her direction goes against their advice. 
 
Join me tonight for TGIF on my YouTube Channel, Children of Darkness and Light, at 6 pm Pacific at https://youtu.be/7mow0iqcypk for much more information.

We Have a Trial Date!

Hello Good Friends! I hope you are all doing well and enjoying your holiday season.
 
Let’s start by reviewing the hearing on December 8, 2022. There was a lot that came out of the hearing. First, it was the first time Lori and Chad were in the courtroom at the same time. Some people in the courtroom claimed they were exchanging glances; others claimed they both looked straight ahead. Unfortunately, I didn’t attend, so I wasn’t there to observe and give my impressions. Later, Chad was dismissed from the courtroom once the issue of a trial date was settled.
 
We Have a Trial Date! The judge reviewed the speedy trial timelines before setting the trial for April 3, 2023. Chad Daybell has waived his speedy trial rights. According to the court’s calculations, Chad had been in custody for 912 days. Lori Vallow Daybell has not waived her speedy trial rights and has been in custody for 1022 days. The judge said the trial would continue to be a joint trial. Lori’s attorney, Jim Archibald, said by his calculations, her trial needed to be set by February 21, 2023, and that if the trial were not set by then, he would file a motion to dismiss her case for lack of speedy trial. Archibald said that his calculation included the extended time the judge added for good cause that resulted in the January trial date and did not include the time Lori’s case was stayed for her most recent mental health evaluation.
 
The judge said he hoped jury selection could begin in late March so that the substance of the trial could start promptly on April 3, 2023. The prosecution pointed out that the ten-week estimate of trial time did not include time for the jury to deliberate and did not include time for the penalty phase if the defendants are found guilty.
 
The judge said he would issue a scheduling order that would include deadlines for pretrial motions.
 
Discovery and Lori’s Motion to Compel. John Prior told the court that the prosecutor, Rob Wood, had just handed him a thumb drive with 115 items of new discovery on it. He also reported that he has 60 to 70 other things he has asked for and doesn’t have. Additionally, the court previously ordered the state to produce a transcript of the supplemental grand jury proceedings, and Prior said he still has not received it.
 
The prosecution said they hope to have the report from the consumptive DNA testing in about three weeks. During the discussion on scheduling, John Prior asked the court to set the trial either in October 2023 or later into 2024 because he feels the prosecution is “slow walking” discovery.
 
I can’t disagree. While Prior didn’t yet know what was on the thumb drive, he said that from the index, it appeared the information was voluminous. It’s outrageous to think that more than two years after their original arrests, the state is just now providing the defense with what appears to be new discovery.
 
The judge then took up Lori’s motion to compel discovery. As usual, the judge waffled. Archibald and Thomas claim (likely true) that the prosecution continues to have law enforcement interview witnesses and is not producing their statements. Specifically, they claim the FBI recently reinterviewed Melanie Gibb, Zulema Pastenes, and Melani Pawlowski, and the state has not created any new reports from those interviews. The defense only learned of the interviews when their investigator went to talk to Zulema and was told she was in Rexburg with her attorney. John Thomas was outraged and caught off guard by Rob Wood standing up and saying there were no new reports, he tried to put his investigator on to rebut Wood but had trouble getting past the hearsay objections.
 
The judge then granted the defense’s motion to compel discovery but said the order would simply direct the state to comply with the discovery rules. Since the parties can’t agree on what the rules require, his ruling amounted (as usual) to punting the issue.
 
So let’s dive into the weeds a bit. When a prosecutor prepares a case for trial, they will meet witnesses and review their testimony. If it appears that trial preparation might result in new information, the prosecutor has law enforcement document the witness statement so it can be provided to the defense. Wood claims that he’s met with the witnesses, but they didn’t say anything new – but we know Wood had law enforcement reinterview them. It makes you wonder, doesn’t it?
 
The prosecution has a constitutional obligation to divulge EVERYTHING to the defense. The reason is that the prosecution has the unlimited resources and power of the state behind them. Transparency levels the playing field. The only thing the state does not have to produce is attorney work product. Think of it this way: if I sit down with a witness statement, outline my questions based on the statement, make notes about where it will fit in my opening and closings, and how a particular case figures into the case, that’s work product, and the other side doesn’t get it. On the other hand, if I sit down with a witness to review their testimony and they suddenly remember something new, I need to have law enforcement record the new information and produce it to the other side. Not everything in the prosecutor’s office is automatically protected by attorney work-product privilege.
 
A prosecutor should only prosecute a case they believe they can prove beyond a reasonable doubt after fully disclosing all their evidence to the defense. If they have to hide evidence to ambush the defense, it’s unconstitutional, and they have no business prosecuting. These are most certainly issues that will come up on appeal.
 
Motions about the Death Penalty. John Prior told the court he intended to file similar motions to the ones before the court, so they decided to postpone argument so they can hear all of these motions together.
 
Bill of Particulars. The court already considered argument from John Prior on this issue. John Thomas added a few comments. He argued that the indictment does not comport with the law and does not give a plain, concise and definite statement of the precise facts. Thomas pointed out that the court and the defense have questioned the clear meaning of the indictment, but the state claimed it was a thinly veiled attempt to discover their theory and work product. Thomas was right when he argued that the state’s theory should be transparent, that they are supposed to be the ministers of justice, and should be looking out for the fairness of the process “without passion or prejudice.” Work product includes the opinions of the prosecutor and nothing more. For some reason, the prosecution believes that everything they do in their office is “work product.” And does anyone else find Rachel Smith a little a little condescending when she says, “while I applaud the defense for their creative argument…?”
 
True Crime Wednesday. Join me tonight for our weekly discussion of true crime cases. Tonight we will be discussing Missing Children; is it really an epidemic? Find me here at 6 pm Pacific, https://youtu.be/3qUixU5knW8.
 
Don’t miss our TGIF discussion of the Vallow/Daybell case; We Have a Trial Date! Friday at 6 pm Pacific. You can find it here https://youtu.be/437ffvwUFy0.
 

Motions scheduled for December 8, 2022 hearing

December 2, 2022

Hello Good Friends!

I hope you had a wonderful Thanksgiving. I am grateful that I could spend time with my bestie and her family, but COVID-19 still caused some disruption for our family. A positive test derailed a road trip for my daughter and future in-laws to visit her fiancé’s family. They turned around in time to pick up a turkey and have dinner at home, with the offending brother banished to the patio. We still have the record, though, for the best candlelight dinner. Several years ago, an exploding electrical transformer two houses down meant we were out of power all Thanksgiving day. Fortunately, we’d baked desserts the day before and found a friend with an empty oven to cook the turkey. A gas stovetop meant we could cook the rest of the dinner with modification. It turned out to be our favorite holiday memory.

YouTube Offerings. Before we dive into the motions, I want to thank everyone who tuned in to my new YouTube channel. Thanks to the 4352 people who have subscribed and everyone who has spent nearly 29,000 hours viewing the content. If you have not subscribed yet, please do. While the Vallow/Daybell case is in a bit of a lull, I am offering True Crime Wednesdays, where we discuss other true crime cases, as well as the usual Friday evening wrap-up of all things Vallow/Daybell. Here are all the details:

True Crime Wednesday airs live each Wednesday at 6 pm Pacific. Since my Friday Vallow/Daybell YouTube program began, many people have asked my opinion on other cases. So I will be discussing those questions and answering those questions during True Crime Wednesday. No show on Wednesday, December 21, 2022.

TGIF and Vallow/Daybell, where we talk about all things Vallow/Daybell, airs live each Friday at 6 pm Pacific. No show on Friday, December 23, 2022.

When the Vallow/Daybell trial begins, I plan to attend every day. That will be important if Judge Boyce continues his ban on cameras in the courtroom. I will be your eyes and ears in the trial and post YouTube shorts during the day and after the court adjourns. That makes it important that you subscribe to receive notifications when I post those updates.

I will also be recording some background episodes on the case, so look for those soon.

You can find my YouTube channel at
https://www.youtube.com/@childrenofdarknessandlight

True Crime Quilt Guild. As most of you know, I’m a quilter. I am offering a monthly quilt block in our True Crime Quilt Guild. If you are a quilter or want to learn, we are starting a virtual true crime quilt guild in January 2023. We will start with a sampler quilt, suitable for beginners, and I’ll produce an instruction video for each month’s block. You can download the pattern from Etsy here:
https://www.etsy.com/listing/229677900/stepping-stones-sampler-quilt-pattern

The cost is $12. Use coupon code THANKYOU22 for 25% off. Choose your own colors and fabrics, and be on the lookout for sample blocks soon.

Hearing December 8, 2022. A hearing is scheduled for December 8. 2022, at 9:30 am in the Daybell/Vallow case. The hearing is to address several issues. First, it is a scheduling hearing, presumably to reset the trial dates. Second, the hearing will address several motions, including a Motion for a Bill of Particulars, filed September 2, 2022; Motion to Prevent Death Qualification of Jury, filed September 26, 2022; Motion to Compel, filed November 22, 2022; and Motion to Declare Death Penalty Unconstitutional, filed November 23, 2022. Let’s look at the motions and what we might expect.

Motion for a Bill of Particulars. The pending motion was filed by Lori Vallow Daybell’s attorneys, Jim Archibald and John Thomas. The judge has already heard argument on October 13, 2022, on a similar motion filed by Chad Daybell’s attorney, John Prior. The judge denied that motion. There is no statutory basis for a motion for a bill of particulars in Idaho, although other states allow such motions. Unless Lori’s attorney’s come up with a different argument for their motion, I expect the judge to deny this one. The state argued that the defense was simply using this to get at information they are not entitled to – specifically, the state’s theory of the case.

Motion to Compel. The parties continue to argue over discovery. Discovery disputes are common in all cases, but this case has had an extraordinary number of filings about discovery. As I have discussed in previous newsletters, the state must turn over all information, reports, interviews, and evidence to the defense in all criminal cases. That means everything. The defense has asserted over and over that there are witness statements that the state has not turned over. Now, it’s clear from the motion that the state asserts that because the witness interviews were conducted by the FBI and not state law enforcement, they don’t have to be turned over. That argument is ludicrous. Under the Federal Supreme Court decision in Brady v. Maryland, 373 U.S. 83 (1963), ALL discovery materials must be turned over. The Brady decision makes no distinction between evidence, depending on who collected it. It seems to be an attempt on the part of the state not to tip their hand regarding their theory of the case. While there are things that are protected as attorney work product, witness statements categorically fall outside what is protected. Attorneys have a right to protect their own notes and thought processes in formulating and preparing for a case. They do not have the right to withhold witness statements because they might tip the defense as to the theory of the case. The defense should win this motion because it is a fundamental fairness issue. The resulting decision from Judge Boyce should come with a stern admonishment about the Prosecution’s obligation to deal fairly with the defense.

The next two motions are typical of motions filed in death penalty cases. They could be categorized as more theoretical or philosophical in nature. They challenge the concept of the death penalty and are intended to set up the issues on appeal.

Motion to Prevent Death Qualification of Jury. At jury selection, each juror will be asked about their feelings and opinions regarding the death penalty. Each juror will be asked if they could impose the death penalty if the facts support it. It attempts to weed out jurors with a moral objection to the death penalty, who would not impose the ultimate penalty no matter the facts. Qualifying a jury in this manner makes sense since no one wants to present weeks of testimony only to have the jury deadlock on the penalty. However, some studies suggest that asking jurors about their beliefs may result in a jury that is more likely to impose the death penalty. The motion argues, “Empirical research has demonstrated that the systematic exclusion of jurors who have a moral objection to the death penalty results in capital juries that tend to be whiter, more conservative, more male, more sexist, more conviction-prone, more death-prone, and more biased against defendants. As a result, death qualification distorts the jury function and results in juries that do not fulfill their function as fair and impartial representatives of the community.” The studies have been questioned because they reflect the general population’s opinions rather than actual prospective jurors. In addition, the studies don’t consider those actual jurors are sworn to apply the law to the real facts of a case.

Motion to Declare Death Penalty Unconstitutional. If you are interested in the arguments opposed to the death penalty, Jim Archibald and John Thomas’s 62-page motion is worth a read. It lays out why they assert that the death penalty is unconstitutional. Those arguments are made in every state and for every death penalty defendant, hoping the issues will eventually make it to the U.S. Supreme Court. To date, the Supreme Court has ruled that the death penalty, as presently applied in a two-phase trial that includes a jury who considers mitigation issues, is constitutional. Given the court’s current makeup, a change to that decision seems unlikely.

Gerald Ross Pizzuto, Jr. Lest we think these questions are merely academic exercises, let’s consider Mr. Pizzuto’s case in Idaho. Pizzuto was convicted of the 1985 deaths of Berta Herndon, 58, and her nephew, Del Herndon, 37, during an armed robbery. The pair were bound and bludgeoned. A codefendant then shot Del Herndon in the head. Pizzuto was sentenced to death in May 1986. On November 16, 2022, a judge entered a death warrant for Pizzuto and ordered his execution to take place on December 15, 2022. Pizzuto’s execution would have been the first since 2012 when Richard Leavitt was executed. Pizzuto’s defense filed a motion to stay the execution, which was denied on November 22, 2022. Pizzuto has been in hospice care for bladder cancer since 2019. While the judge refused to stay his execution for legal reasons, the execution was ultimately stayed because of a common issue in death penalty cases: the necessary chemicals were unavailable. Lethal injection is the only allowable form of execution in Idaho, and the shortage of essential chemicals makes it impossible. The shortage began around 2010, when companies that manufacture the key drug, sodium thiopental, started refusing to supply drugs for executions. In 2014 several botched lethal injections led to further questions about the procedure, which had always been billed as a humane form of execution. While still sentencing defendants to the death penalty, some states have imposed a moratorium on executions because of questions surrounding lethal injections.

Court Decision on Motion to Sever. Finally, I want to take a bit of a deep dive into the court’s decision not to sever the cases. You will find that I tend to get deeper into the legal issues in the newsletter. The decision still perplexes me since it seems that Judge Boyce has painted himself into a corner. Lori Vallow Daybell has not waived her right to a speedy trial. Her arraignment on the indictment didn’t happen until she was declared competent earlier this year, and that’s when her speedy trial rights began to run. A provision in the statute permits a judge to determine that the defendant’s rights to a speedy trial can be extended for “good cause.” The judge found that there was good cause to extend the period by 90 days to allow for a joint trial to start on January 9, 2023. However, the judge has vacated that date and no new date has been set. The judge indicated during the October 13, 2022, hearing that it could be another year before the trial could be reset. Lori Vallow Daybell’s trial should have been set for October 2022 to comply with her speedy trial deadline. Every day her trial doesn’t happen is a speedy trial violation. It’s hard to imagine how the judge justified the violations for “good cause when he refused to sever the trials. Violation of speedy trial right is, by its nature, prejudicial. That is an issue that needs to be raised by Lori’s lawyers.

The court’s opinion, dated November 17, 2022, outlines the reasons for his decision on Chad’s motion. To begin, the judge outlines the legal standard. “Joinder to two or more defendants is proper if they are alleged to have participated in the same act or in the same series of acts or transactions constituting an offense or offenses…Actions properly joined may be severed if it appears that a joint trial would be prejudicial.” The appeals court will review a court’s denial of a motion to sever only for an abuse of discretion.

Interestingly, until this opinion, we have only heard the argument that a joint trial would be financially advantageous. Until now, we have not heard a legal argument for joinder. In this opinion, the court finds a single trial is legally warranted because the case involves conspiracy charges, and conspiracy necessarily involves the agreement and participation of conspirators. It is the first argument in support of joinder that makes sense to me. The court completely discounts the prejudice to Daybell that might occur, saying that it all amounts to speculation. I still think severing the cases would be the cleanest decision, but I can, at least, see the court’s reasoning here. One of the scenarios most likely to result in severance is when there is a confession by one of the defendants. That’s what’s commonly called Bruton material. The prosecution has repeatedly represented to the court and the defense that there are no confessions from either defendant and, thus, no potential prejudice. Prior also contends that Daybell could be prejudiced by being unable to present separate mitigating factors to the jury in the penalty phase. The judge finds that there are remedies short of severance that would address the issues, such as limiting instructions to the jury. The judge could also order the penalty phases to be separated.

I hope you will join me on YouTube. If you have questions you would like me to answer either about the Vallow/Daybell case or any other true crime case, please email me at http://info@thelorivallowstory.com.

Lori is still competent!

November 17, 2022

Hello Friends!

Let me first share some announcements and then the latest developments in the Vallow/Daybell case.

True Crime Tuesdays. Join me on Tuesdays at 6 pm Pacific for a discussion of the true crime cases in the news. Want to talk about Delphi, Murdaugh, the Piketon Massacre trial, Darryl Brooks, or Michael Vaughn? This is the place to do it! Check out this week’s offering at https://youtu.be/sXLUWrbJ_I8.



Friday TGIF Bring your favorite beverage and join me to talk about the Lori Vallow, Chad Daybell case. Catch the Friday, November 18, 2022, episode at 6 pm Pacific here: https://youtu.be/45OPi1SInlo. No TGIF program on Friday, November 25, 2022, as I will be celebrating all I am grateful for with my best friend and rooting on my Oregon State Beavers in the Civil War against the University of Oregon Ducks. My daughter and future son-in-law both attended the University of Oregon, so we are a mixed family that relishes our in-state rivalry.



True Crime Quilt Guild. If you are a quilter or want to learn, I will start a virtual true crime quilt guild in January 2023. We will start with a sampler quilt, suitable for beginners, and I’ll produce an instruction video for each month’s block. You can download the pattern from Etsy here: https://www.etsy.com/listing/229677900/stepping-stones-sampler-quilt-pattern The cost is $12. Use coupon code THANKYOU22 for 25% off. Choose your own colors and fabrics, and be on the lookout for some sample blocks soon.


Case News. The biggest news this week is that Lori Vallow is competent! As you may recall, Lori’s attorneys filed an affidavit with the court expressing concern about her competency. As a result, the judge ordered an evaluation on October 6, 2022, and the judge reviewed the results in a sealed hearing last week. Following that hearing, Judge Steven Boyce issued an order on November 15, 2022, declaring that Lori is competent and lifting the stay of her case.

Trial Scheduling. You will also remember that the judge heard Chad’s Motion to Sever the cases on November 10, 2022, and has not issued a decision yet on that issue. There has not been a scheduling conference scheduled in either case, so we are waiting for a new trial date for both Lori and Chad. Remember, Lori has still not waived her speedy trial rights. The judge only vacated her January trial date because of the question of her competency. Chad has waived his speedy trial rights, and the January trial date was vacated for him because his attorney filed a motion to postpone his date. I expect the trial(s) to start in the fall of 2023, but there are still quite a few variables. If Lori continues to invoke her speedy trial rights, the court could order the cases severed and reinstate her January date. I can’t see the judge ordering both to be tried in January. He’s already granted Chad’s motion to postpone his part because his attorney isn’t ready. If the judge were to change his mind and order Prior to trial in January, I think it would be an automatic appeal for ineffective assistance of counsel. The next week or two could be very interesting.

Dr. Mozelle Martin. Several of you sent me a video of a handwriting expert named Dr. Mozelle Martin. She appeared on The Interview Room With Chris McDonough. You can view the episode here. https://mail.google.com/mail/u/1/ - inbox/FMfcgzGqRZbjBJWNVdJXJpFXsSstpmxG?projector=1 Dr. Martin’s website is https://forensology.webador.com/. Following up on my discussion of forensic evidence, which you can watch here https://youtu.be/dKKqHUUFK7Q, many of you had questions about how Dr. Martin’s work would fare in court. For those who don’t want to take the time to watch the videos, Dr. Martin claims that she is a forensic psychologist and a handwriting expert and has combined those two disciplines into her specialty. I say claims because there is nothing on her website that indicates where she went to school or what she studied to obtain her Ph.D. I’m not saying she is not qualified; I am only saying I can’t corroborate her qualifications.

Most handwriting experts limit themselves to comparing two writing samples to determine whether or not the same person wrote both examples. That sort of handwriting comparison has been held to meet the Daubert standard. That is not what Dr. Martin claims she can do. Instead, Dr. Martin claims she can analyze a person psychologically based on handwriting. In the video from The Interview Room, she analyzes Lori, Chad, and Alex Cox’s handwriting. Dr. Martin claims she does not research the cases beforehand because she doesn’t want to skew her observations.

While I think her observations are interesting, I can’t see them meeting the Daubert test for admissibility in court. Remember, Polygraphs are not admissible because of their subjective nature. This method of analysis seems equally subjective. It seems to me it has more in common with reading tea leaves than with hard science. Her observations rely on her interpretation of what a particular pen stroke means. There is no independent scientific way to confirm what she says. And, yes, I hear many of you saying, “but Lori, aren’t all psychological evaluations somewhat subjective?” And you would be right, except that psychological testing and evaluations rely on practices and conclusions that are generally accepted in the field. I have not found anything supporting that Dr. Martin is following such practices. I will be interested if anyone else finds something to the contrary.

Lauren and Dr. John Matthias have also been asked about Dr. Martin. Lauren recently released a YouTube Short about their experience. You can see it here. https://youtube.com/shorts/CpLrKwp9q1c?feature=share Lauren points out that the anomalies that Dr. Martin assesses as indications of character were actually artifacts of the camera that photographed the document and were not present on the original. Nonetheless, Dr. Martin used those artifacts to draw conclusions about Chad Daybell’s psychological makeup. From a legal point of view, I have to place Dr. Martin in the same category as fortune tellers and psychics. Now, before you come at me, I am speaking from the legal admissibility point of view. To be admissible in court, a method that claims to be scientific must meet the standards in Daubert and Frye. The Daubert test requires that the judge determine that the information is based on scientifically valid reasoning that can properly be applied to the facts. Frye asks whether the method used is generally accepted by experts in the field. Based on what we know, I think Dr. Martin’s techniques fail both tests.

Interestingly, in a document titled “Selected Handwriting Case Law Since Daubert Showing Complete Defeat For Foes” says this:

“Many case reports are officially designated “not for publication,” and rules of court forbid or restrict their citation as precedents. The reader must take responsibility to ascertain the authoritative nature of any case cited in support of a legal position. Decisions may also have been overruled or modified by the same or higher court. With two exceptions, these cases have all gone to the appeal level and were selected from approximately 300 federal and state cases that have considered expert handwriting evidence post-Daubert. In summary, no trial court that found the expertise itself to be reliable and admissible has been reversed. Individual handwriting expert witnesses were ruled inadmissible or restricted by the trial court, a ruling usually upheld upon appeal, or the specific qualifications of the witness relative to the expert fact at issue was found wanting. However, more recent cases do give support to trial courts that find critics of handwriting expertise to be inadmissible for some reason. Reading between the judicial lines, one can infer a judicious, though unstated, finding that they really did not know what they were talking about.”

All I can say to this is, “hmmm.” Each of the cases she cites is a handwriting comparison case and not a case where personality traits are inferred from someone’s writing. In other words, she’s using apples to prove oranges exist. I leave it to you to decide what you think.

Evidence Rule 404. Next, many of you have asked me to dive into the rules about character evidence, what we call 404(b) evidence and how it might be used in the Vallow/Daybell case. Here is the rule:

Idaho Rules of Evidence Rule 404. Character Evidence; Crimes or Other Acts.
(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or trait of character is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) a defendant may offer evidence of an alleged victim’s pertinent trait of character, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608 and 609.

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case, the prosecutor must:
(A) file and serve reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
(B) do so reasonably in advance of trial – or during trial if the court, for good cause shown, excuses lack of pretrial notice.

In general, the rule is in place to prohibit prosecutors from using a defendant’s past behavior to prove the person acted in conformance with their character in the present case. So, for example, the prosecutor can’t present evidence that a defendant was previously convicted of shoplifting to prove she committed the theft she’s currently on trial for.

The issue arose at the hearing on John Prior’s motion to sever the trials. He made clear that he plans to use Alex and Lori’s complicity in Charles Vallow’s death to suggest that they were also responsible for the deaths of the children and Tammy Daybell. Prior made the point, and he is right, that the information he seeks to present isn’t really even a species of 404(b) evidence because it’s being used to prove Chad didn’t commit the crime; someone else did. It’s not even what courts have called “reverse” 404(b) evidence, at least as it applies to Alex Cox because Alex is dead and, therefore, not an indicted co-conspirator. If the cases remain joined, it becomes a problem because the jury could infer that if Lori and Alex acted in a certain way toward Charles, they necessarily acted the same way toward JJ, Tylee, and Tammy.

Two Juries. This leads to another question about severing the trials. The prosecution suggested the two-jury option during the hearing on severing the trials. There have been several recent high visibility cases where the court held a single trial, but each defendant had their own jury. Anyone who has watched any criminal trial knows it’s a choreographed process. The more careful the choreography, the less likely there will be errors for appeal. Assuring the jury in any case only hears admissible evidence means juggling what is presented in front of the jury and what is not. Often it requires the judge to ask the jury to wait in the jury assembly room while objections and offers of proof are heard, and rulings are made. Then, if the judge rules that the evidence is admissible, it’s presented to the jury. Juggling that in connection with two juries is a feat. It takes an experienced, cool-headed judge to manage any complex case. It will be made doubly complicated with two juries, and I have my doubts about whether Judge Boyce is prepared for that eventuality.

A good lawyer or judge is honest about their capabilities and limitations. That’s hard. We’re expected to temper the confidence necessary to appear in court and advocate for our clients with the humility needed to admit when we’re over our heads. None of us gets it right all the time. It’s not a skill we’re born with; we develop it with experience (some of it painful) as we gain wisdom.

I wish each of you a lovely and peaceful Thanksgiving. I hope each of you has much to be grateful for this year. Finally, I want to express my deep thanks and appreciation to each of you for your support, patience, and encouragement.

A Steamin' Heap of News!

This week's hearings,
and some
big announcements

November 9, 2022

Hello, Friends!

How about a bit of case information and a steaming heap of new announcements?

I wish it were new stuff about the Vallow/Daybell case, but things there are pretty quiet. Too quiet if you ask me.

A Pre-trial Conference for both Lori and Chad was scheduled this morning at 9 am that was vacated (meaning it was canceled). A Competency Evaluation Review is scheduled for Lori this afternoon at 4 pm. That hearing will be sealed because it deals with Lori’s mental health. I anticipate we will see an order from the court shortly after. The order will either rule that she is competent or commit her back to the Idaho Department of Health and Welfare (IDHW) again. I could be wrong, but I expect we will see another commitment; I also expect it will be much shorter than the last.

Court TV is still filing a request to broadcast the proceedings before every hearing, and Judge Boyce is still denying them every time. I hope the Vallow, Cox, and Daybell families have all contacted the judge directly and let him know the hardship his ruling creates for them. Leaving their homes and jobs to come to Boise, Idaho, for what could be two, three-month trials will be difficult for some and impossible for most. If family members want to contact Judge Boyce, please email me at http://info@thelorivallowstory.com, and I will happily provide you with the necessary contact information. While I understand all of you would love to contact the judge and express your opinion, I am not providing that information publicly, and I ask that you don’t contact Judge Boyce. I don’t want communication from the families to get lost in a sea of messages from the public. There may be a time for that, but not now.

Chad Daybell has a hearing tomorrow on John Prior’s Motion to Sever. I contemplated driving over to Rexburg for the hearing, but I think there’s a better than 50/50 chance that at least part, if not all, of the hearing, will be done behind closed doors (again). Rexburg is about a four-and-a-half-hour drive from me, and that usually means an overnight stay because I’m beyond the point in my life where I could get up at the crack of dawn, drive four hours to court, make an appearance and drive home. When John Prior argues his motion, there will, by necessity, be some discussion of the actual evidence to support his argument that his client will be prejudiced by keeping the trials together. Prior will likely have to preview more of his trial strategy to make his case for severing the defendants. Typically, that should not be sealed information, but this judge has made a habit of sealing anything that might reveal information about the case to potential jurors. It’s an unconstitutional decision and will likely result in appealable issues, but I don’t think he will stop, even with all the pushback. I’m sure that Nate Eaton and East Idaho News will obtain a recording of any of the public portions of tomorrow’s hearing as soon as the court releases it, and you'd better believe we'll be talking about it on Friday at 6 pm Pacific right here https://youtu.be/_y6Qie1WVPU.

Now, to some new offerings from me!
First, many of you have asked me to comment on other cases, such as Darryl Brooks, Delphi, Murdaugh, and the Piketon massacre trial. As the Daybell case is in a lull, I’m happy to oblige. Announcing, TrueCrime Tuesday. Beginning November 15, 2022, I will be going live at 6 pm Pacific every Tuesday to discuss the legal issues in other cases. If there is a specific case you would like to talk about, please send your questions to http://info@thelorivallowstory.com.

Next, you might have noticed the holidays are coming up. Those who know me know I love to cook, and I really love to bake. Holiday baking is my jam, and I’d like to share it with you. So starting today, I’ll share my favorite holiday recipes with you. Here is my first offering.

Finally, you might know I’m also a quilter. I’d like to know if there are other quilters or those who would like to learn and who would like to do a block of the month True Crime quilt. The project would involve downloading my free pattern for a simple quilt block each month beginning in January 2023. I would create a quick video tutorial for each block, and we would share our finished blocks in my last live each month. The goal would be to have a finished quilt by the time there’s a verdict in the case (although if there are more delays, it might be a BIG quilt). Please let me know if you have any interest. Here are a few samples of my projects.

They made me into a meme and I don't hate it!

They Made Me Into a Meme

(and I don't hate it)

October 29, 2022

Hello Friends!

Last night's YouTube live was terrific – thanks again to all of you that subscribed and to the 500+ who joined us live. Your response to the new channel has been humbling. I want to thank my moderators, Julie, Michelle, and Brenda. I couldn't do it without them. Finally, thank you to those who generously sent us Super Chats; please know your gifts will go directly to my moderators.

I hope you get as big a laugh from my meme as I did! I do take exception to the "friends not included" part because I love the online friends I've made here. Other than that, it seems pretty accurate to me!

I thought I might take some time in this newsletter to address a few questions I've received in emails and the YouTube chat. So here are a few of them.

If Lori is found incompetent in Idaho, what happens to the Arizona case? Lori has been charged in Arizona with conspiring to kill her fourth husband, Charles Vallow. Charles was murdered on July 11, 2019, by Lori's brother, Alex Cox, who claimed at the time that he shot Charles in self-defense. Lori's daughter, Tylee, was present when the incident happened. The Arizona authorities have deferred to the Idaho prosecutions. Usually, in multi-state prosecutions, one state will wait until the prosecutions are complete in the other state. Arizona has an exception to its statute of limitations that tolls a person's time out of the state. Idaho doesn't have such a rule, so bringing Idaho charges first made sense. Idaho's statute of limitations on felonies is five years, and Arizona's is seven years. Like most states, neither Idaho nor Arizona have a statute of limitations on murder. When Idaho pauses its case because of Lori's incompetence, it doesn't affect the Arizona case. If Lori is incompetent for an extended period, or the Idaho court determines she will not regain competence in a reasonable time, Arizona would probably seek its own evaluation and then decide how to proceed with its charges.

With Alex dead, do you think Prior will go beyond "Alex and Lori did it" to include other pre-Chad folks like Melani/Melanie/Zulema as drivers of these murders? Or do defense attorneys like to keep it simple in cases where only one person other than their client has actually been charged? The defense attorney's job is to offer the most robust defense possible for his client in a cogent, understandable way. Juries can understand even the most complicated case if it's presented properly. If Prior's theory is that Lori and Alex took it too far, I think it will be crucial for Prior to present a timeline of the evolution of Chad and Lori's beliefs to explain how Lori and Alex reached the point where they took a left turn into murder. I think Melanie, Melani, and Zulema must necessarily be part of the narrative.

Could Chad give rights to a story in exchange for services rendered? Could his children write a book and use the proceeds to pay for his defense? Does the Slayer Law/Son of Sam law take effect before conviction? Can Chad sell his story now and keep proceeds? Excellent questions. I've included the statutes for both Arizona and Idaho. Both states only require that the person be accused of a crime. In Idaho, the person must later be convicted. Because the law also covers any representative or assignee of the accused, Chad's children would not be allowed to sell their story and pay Chad's legal bills with the money.

Here is the Arizona Statute:
A.R.S. § 13-4202 (2012)
§ 13-4202. Void contracts; crime victim accounts; establishment; notice to victims; exceptions; civil liability; definition
A. Every contract whether written or oral, express or implied, with an accused with respect to the reenactment, description or depiction of a crime by movie, book, article, radio or television presentation, internet or on-line presentation or depiction, live entertainment or expression of thoughts, feelings, opinions or emotions is contrary to public policy and void unless the contract provides for payment to the commission of any monies which would be paid to the accused for such information or rights.

Here is the Idaho law:
Idaho Code § 19-5301 (2000)
§ 19-5301. Distribution of moneys received as a result of the commission of crime
(1) Every person, firm, corporation, partnership, association or other legal entity contracting with any person or the representative or assignee of any person, accused of a crime in this state, with respect to the reenactment of such crime, by way of a movie, book, magazine article, radio or television presentation, live entertainment of any kind, or from the expression of such person's thoughts, feelings, opinions or emotions regarding such crime, shall pay over to the state treasurer any moneys which would otherwise, by terms of such contract, be owing to the person so convicted or his representatives. The state treasurer shall deposit such moneys in an escrow account for the benefit of and payable to any victim of crimes committed by such person, provided that such person is eventually convicted of the crime or is acquitted on the ground of mental disease or defect excluding responsibility and provided further that such victim, or his personal representative, within five (5) years of the date the escrow account has been established, brings a civil action in a court of competent jurisdiction and recovers a money judgment against such person or his representatives.

What are you most looking forward to finding out in trial? I've been told by several people close to the case that the evidence we have seen is a fraction of what will come out at trial. So I'm looking forward to seeing what else the prosecution has.

​Could you go visit them in jail? I (or anyone else) could only see them in jail if it were approved by their attorney(s).

Do you think defense Attys are chomping at the bit to cross examine Zulema and Melanie Gibb? I sure would be. Melanie Gibb has given so many versions of her story that I think impeaching her will be easy. Her sworn testimony is already on the record in Chad's preliminary hearing. Confronting her with her off-the-record statements that call that testimony into question would be downright fun.

Would a delayed trial also delay others getting charged if they are witnesses? Probably. Whether they have immunity agreements or something less formal, prosecutors will want to know if they live up to their agreements before proceeding. For example, Melani Pawlowski was recently charged with identity theft for getting into her ex-husband, Brandon Boudreaux's bank account, after they were divorced, and her name should have been removed from the account. I suspect the prosecutors made a deal to drop the charges and not refile them as long as she testified truthfully.

Good Lori, is it possible that John Prior/Jim Archibald might plead Chad/Lori guilty to a lesser charge both because of the mountain of evidence against them and also to avoid the death penalty? I think defense attorneys have to look at every side of a case and advise their clients accordingly. The defense attorney's job is to get the best outcome for their client, and surely life in prison without parole is better than the death penalty. I've seen many cases settle the morning of trial; still, I think if there were going to be a plea deal, it would have happened by now. But, of course, plea negotiations are confidential, so we may never know.

Hey Good Lori, any chance for another Boise meet up? My 89 yr old father and 85 yr old mother want to meet you! I would LOVE to do another Boise meetup! I love meeting up individually for coffee or lunch with my Boise peeps too. Email me, and we can make a date.

And finally, this gem from @leehere: yep chud chunder will say , 'but your honor , she played with my dangly bits how could i resist sir '? jezebel got me , not my fault

Free Wrist bands!

Send your self-addressed stamped envelope to

Lori Hellis
104 E. Fairview Ave. #381
Meridian, ID 83642

Let's Catch Up!

New Motions, Wristbands, and a Phantom Live Video

Happy Halloween!

October 28, 2022

Hello Friends!

So much to talk about! Let me get the housekeeping and personal stuff out of the way first.

My YouTube Channel, Children of Darkness and Light, premiered on October 14, 2022. The link to my channel is
https://www.youtube.com/channel/UC6DDIwubCEwP2U0hIS6NLKg. Your response had been nothing short of mind-boggling. We had nearly 24,000 views in the first two weeks, and almost 4000 of you subscribed. Lots of you also caught my appearance on Crime Talk with Scott Reisch. I love being able to dish with another lawyer, and since I retired, I have fewer opportunities. If you missed it, you can catch that here: https://www.youtube.com/watch?v=t-QzPWbOy3M&t=166s.

Thanks, too, to all of you who have made suggestions about how to improve the channel. I’m learning so many new things, and your feedback is invaluable.

Catch me on Friday, live at 6 pm Pacific. We will be talking about the new filings and divorce vs. marital privilege.

Now for a really big mea culpa (that’s a nice, Latin way of saying, oops, I screwed up). I’ve been working on a video introduction to the case. I was using it to teach myself how to record, edit and upload videos. I’m telling you, learning this new tech is HARD. It seems I thought I was uploading it to YouTube for a final edit when instead, I uploaded it, and it went LIVE! It was a rough, unedited cut and never should have seen the light of day. I’ve taken it down and enlisted the help of my daughter to get it right before I repost it. I’m sorry if you got a middle-of-the-night alert and were subjected to its awfulness. I now know how it feels to have to call your kid for help programming the VCR.

Justice for Tylee and JJ wristbands are still available. If you’ve sent me a request to the new address, I will have them in the mail this week. If you would like a free wristband, please send me a self-addressed stamped envelope to:

Lori Hellis
104 E. Fairview Ave. #381
Meridian, ID 93642

If you have already sent me an envelope, those letters should go out early next week.

Now, on to the case.

Yesterday, some new filings hit the court database. The filings and proceedings have been sealed, so we can only speculate about their meaning. In this case, it does appear the court properly followed the law and appropriately sealed the documents and hearings because they have to do with Lori’s mental health. The court held a status conference today. The prosecution also filed a motion to compel. Motions to compel are usually about getting some sort of discovery materials. The prosecution filed a Request for Records on Mental Health on October 13, 2022. They are likely trying to get the defense to provide them with Lori’s records so their own expert can review them. The prosecution has also filed something called a Motion to Determine Conflict. That has also been sealed at the prosecution’s request. One of my attorney contacts in Rexburg suggested this may be a conflict over who will complete Lori’s evaluation.

Following the October 13, 2022, hearing, three issues remain undecided: my motions to unseal documents and hearings, John Prior’s motions to continue, and sever. I’ve been told the judge was on vacation last week, so that may be the reason for the delay.
The judge issued an order in Lori’s case vacating the January 9, 2023, trial date. He has issued a temporary stay in her case because her attorneys filed an Ex Parte Affidavit with the court on September 30, 2022, saying they had concerns about her fitness to proceed.

Ex parte is Latin. Historically, lawyers and doctors tossed Latin into correspondence to prove they were smarter than everyone else. While the practice has pretty much faded from use, there are a few terms lawyers still use as a sort of professional shorthand. Terms like per se, pro hac vice, ex parte, en camera, pro se, pro per, and duces tecum have specific legal meanings. Ex parte means ‘one party.’ Generally, it is improper for an attorney to have contact with the judge without the other side present. Ex parte motions are the exception. Because the issue of a person’s mental health is so sensitive, the lawyers file an affidavit with the judge, outlining their concerns for their client’s competency. The judge reviews the motion and determines if the information is appropriate to share with the other side.

In this case, the judge held a brief hearing and ordered Lori’s Ex Parte Affidavit be shared with the prosecution. That hearing was appropriately sealed. Then, the judge scheduled a later hearing to discuss the matter once the prosecution had time to read the affidavit. That hearing was also appropriately sealed. After that second hearing, the judge issued an order temporarily staying Lori’s case, pending a competency evaluation. As far as we know, that evaluation is still underway. If the process proceeds as it did last time, the judge and the lawyers will be given the results of the assessment, and the prosecution will decide whether to challenge the conclusions. Just as last time, they likely won’t challenge the recommendations. If the evaluators recommend that Lori return to the state hospital for further restorative treatment, the judge will issue another commitment order, and she will be transported to the hospital for treatment.

I’ve received many questions about whether Lori could escape prosecution because of what might be a revolving door to the state hospital. While there is a provision in the law that permits the state to dismiss a case when it appears the defendant won’t regain competency in a reasonable time, that dismissal is ‘without prejudice,’ meaning it can be refiled at any time within the Idaho statute of limitations. There is no statute of limitations on the prosecution of murder. The statute of limitations on the non-murder felonies is five years. But before you panic, that statute of limitations only applies to cases not filed within five years of the date of the crime. Lori has pending charges, so the statute of limitations isn’t a problem. The statute does permit the court to dismiss a charge if the judge finds that the defendant has been committed for so long it’s unjust to resume criminal proceedings. Here is the text of the statute (18-212)

(4)If at the end of the initial ninety (90) days, the court determines that the defendant is unfit and there is not a substantial probability the defendant will be fit to proceed within the foreseeable future or if the defendant is not fit to proceed after the expiration of the additional one hundred eighty (180) days, involuntary commitment proceedings shall be instituted pursuant to either section 66-329 or 66-406, Idaho Code, in the court in which the criminal charge is pending.
(5) In its review of commitments pursuant to section 66-337, Idaho Code, the department of health and welfare shall determine whether the defendant is fit to proceed with trial. The department of health and welfare shall review its commitments pursuant to chapter 4, title 66, Idaho Code, and may recommend that the defendant is fit to proceed with trial. If the district court which committed the defendant pursuant to section 66-406, Idaho Code, agrees with the department’s recommendation and finds the conditions which justified the order pursuant to section 66-406, Idaho Code, do not continue to exist, criminal proceedings may resume. If the defendant is fit to proceed, the court in which the criminal charge is pending shall be notified, and the criminal proceedings may resume. If, however, the court is of the view that so much time has elapsed, excluding any time spent free from custody by reason of the escape of the defendant, since the commitment of the defendant that it would be unjust to resume the criminal proceeding, the court may dismiss the charge.

Where a defendant’s trial has been suspended because of their lack of competence, the Supreme Court has found there is no violation of the defendant’s right to a speedy trial. I don’t expect Lori’s upcoming stint in the hospital to be as long as the last one. There were initial evaluations the first time and a period where Lori refused medication. The judge has ordered that she take medication, and that order extends through the trial. If Lori doesn’t comply, she can be forcibly medicated.

The next question is, how does Lori’s incompetence affect Chad’s trial? That’s a bit thornier, but the answer may be not at all. Chad’s lawyer has filed a motion to sever the cases. But, you say, hasn’t the judge already decided that? Well, yes, but that decision isn’t final.

What?! How can we ever have finality if a judge’s decision isn’t final? Well, most judicial decisions are final, but some can be raised over and over again. There are two reasons why the issue of severing the cases can be raised again. First, the judge applied the wrong law to the first determination. Both John Prior and the judge applied the law as it applies to the joinder of charges, not the joinder of defendants. The supreme court has ruled that if the judge applies the wrong law to their decision, it’s an automatic do-over. Second, the issue of severing the cases can be raised any time there has been a change in the circumstances of the case. So, Prior gets a do-over on the portion of the case that occurred before the court’s previous decision and can raise issues that have developed since the judge’s earlier ruling. John Prior’s first filing was an anemic motion without much support. His present motion is a robust thirty-one-page recounting of all the reasons the cases should be severed. I outlined some of the issues in my last newsletter, but here is a review.

The biggest issue in deciding whether to sever the cases is prejudice. First, Prior points out the thing that we can’t stress enough. Death penalty cases are different. Because the ultimate punishment is the death of the defendant, every step of the criminal justice process must be done with a heightened need for reliability and to a higher degree of certainty. In other words, there is no margin for error when a life is at stake. Each defendant must be able to put on a complete and full-throated defense. Additionally, when a life is at stake, the law requires that if a defendant is found guilty of the crime, they receive precise and individualized sentencing.

Both requirements are compromised in a joint trial, and John Prior makes good arguments for Chad Daybell being prejudiced by being tried with Lori Vallow. His arguments are detailed in his Motion to Sever. You can read the complete document at:
https://coi.isc.idaho.gov/?fbclid=IwAR2DzfEzhtV_AxR04O5HXCI_aMkgZPe4jXk3RfoKqdJ2BELrCIhaaU_7dok

Many of the arguments in the motion are technical and have to do with applying the rules of evidence. It boils down to this, though; will one codefendant be unduly prejudiced by either the admission or the exclusion of certain evidence? If Chad’s defense is that he was a hapless shill for Lori and Alex, who had bad intentions that Chad didn’t know about, then he needs to bring in Lori and Alex’s behavior in and around Charles Vallow’s death – particularly Alex’s interview with Chandler Police - to show they were heartless murderers with ulterior motives. And, yes, I know that sounds absurd to anyone following the case, but defense attorneys have to work with the evidence they have, even if it seems improbable. A problem arises because if Chad brings in that evidence, sometimes called reverse 404(b) evidence, Lori’s rights will be violated. Chad can bring in the testimonial evidence that Lori and Alex plotted to kill Charles over a hearsay objection because there is an exception to the hearsay rules for prior statements of someone who has died. But, because Lori has a Sixth Amendment right to confront the witnesses against her, and Alex is dead, the evidence can’t come in against her. Catch-22, right? And it’s that circular problem that proves the defendants must be tried separately. While Prior makes other points about other issues, this is the one that gets to the heart of why we sever cases. Prior points out similar problems with holding a joint penalty phase, where the jury must decide between death and life without parole.

I think John Prior makes an excellent argument for severance at this point in the proceedings, and I agree. We must take him at his word and assume that Prior’s primary defense will be to blame the crimes on Lori and Alex. Not only has he telegraphed it repeatedly in the past, but he’s now laid it out in detail in his motion.

Inarguably, if the judge severs the trial, the expense to the state and county double. However, if the court fails to sever the cases, it’s highly likely the case will come back on appeal and require a new trial. If the court refuses to sever the cases, the state and county will ultimately pay for a joint trial, then bear the expense of several years of appeals, followed by two separate retrials, increasing the cost exponentially.

Once again, joinder is about efficiency; severance is about fairness. The prosecutors want a joint trial because it’s easier, more cost-effective, and more efficient. Here are some of the reasons:

1. Witnesses are only called once. They avoid the possibility that the witnesses’ first experience will cause them to rethink their testimony in the second.

2. The prosecution only has to pay once for out-of-town witnesses’ travel and accommodations.

3. Expert witnesses need only be paid once for their time, travel, and accommodation.

4. Evidence is only ruled upon once. Both sides can be sure of the same evidentiary rulings on the same evidence as it applies to each defendant.

5. Defendants are only transported and housed in the host county once. If either defendant is called in the other’s case, it may require additional transportation and housing.

6. The prosecutors only have to prepare their case once.

7. The prosecutors and their staff, the judge and his staff, and law enforcement only have to be away from their other duties for three months instead of six.

8. The receiving county only has to house one high-profile trial instead of two.

Let’s be clear, though – none of those things are more critical than defendants, who are on trial for their lives, receiving a fair trial.

This leads me to the other undecided motion – John Prior’s motion to continue. While the judge has already vacated the January 9, 2023 trial as to Lori, he did not vacate Chad’s trial and did not yet rule on Prior’s motion to continue Chad’s portion of the trial. The judge said he wanted time to consult with Ada County to find out how difficult it would be to reschedule the trial date. The judge refused to apply the stay in Lori Vallow’s case to Chad Daybell’s case. That leaves many options open. Judge Boyce could grant the motion to continue and the motion to sever and set a trial date for Chad while leaving Lori’s trial stayed while she is once again restored to competency. He could also grant the motion and reset a joint trial later in 2023. It’s also possible, but I think unlikely, that he could leave Chad’s trial on for January 9, 2023.

Catch me on Friday, live at 6 pm Pacific. We will be talking about the new filings and divorce vs. marital privilege.

Don't Forget!

Don't miss the first YouTube Live!
tonight at 6pm Pacific

LinK: https://youtu.be/qRguPBu8GXg

and the launch party tomorrow!