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.
