Chad's Motion to Dismiss
What in the name of justice,
is going on here!?
September 1, 2020
Hello, my friends. There has been a new development. Chad's attorney, John Prior, has filed a motion to dismiss the case. Here is a quick rundown of the reasons why.
Filing a motion to dismiss charges is a typical step for a defense attorney in most cases. The Idaho Rules of Criminal Procedure Rule 12 spells out the types of motions that may be filed. I’ve added the text of the rule here.
Idaho Criminal Rule 12. Pleadings and Motions Before Trial; Defenses and Objections
(a) Pleadings and Motions. The only pleadings in criminal proceedings are the complaint, indictment or information, and the pleas of guilty and not guilty. Defenses and objections before trial must be raised by motion to dismiss or to grant appropriate relief as provided in these rules.
(b) Pretrial Motions. Any defense objection or request which can be determined without trial of the general issue may be raised before the trial by motion. The following must be raised prior to trial:
(1) defenses and objections based on defects in the prior proceedings in the prosecution;
(2) defenses and objections based on defects in the complaint, indictment or information (other than that it fails to show jurisdiction of the court or to charge an offense, which objections may be made at any time during the pendency of the proceedings);
(3) motions to suppress evidence because it was illegally obtained;
(4) request for discovery under Rule 16;
(5) request for a severance of charges or defendants under Rule 14; or
(6) motion to dismiss based on former jeopardy.
(c) Motions to Suppress. A motion to suppress evidence must describe the evidence sought to be suppressed and the legal basis for its suppression sufficiently to give the opposing party reasonable notice of the issues.
(d) Motion Date. Motions under Rule 12(b) must be filed within 28 days after the entry of a plea of not guilty or seven days before trial whichever is earlier. In felony cases, motions under Rule 12(b) must be brought on for hearing within 14 days after filing or 48 hours before trial, whichever is earlier. The court may shorten or enlarge the time and, for good cause shown or for excusable neglect, may relieve a party of failure to comply with this rule.
(e) Ruling on Motion. A motion made before trial must be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. Where factual issues are involved in determining a motion, the court must state its essential findings on the record.
(f) Effect of Failure to Raise Defenses or Objections. Failure by the defendant to raise defenses or objections or to make requests that must be made prior to trial, or at the time set by the court pursuant to subsection (d), or prior to any extension of time granted by the court, constitutes waiver of the defenses, objections or requests, but the court, for cause shown, may grant relief from the waiver.
(g) Records. A verbatim record must be made of all proceedings at the hearings, including all findings of fact and conclusions of law that are made orally.
To understand why John Prior filed his motion, let’s look at section (f). If the motions aren’t filed within 28 days after the entry of the not guilty plea, they are waived. Prior’s actions are about preserving the objections for later. If he doesn’t file the objections now, they can’t be raised later, either at trial or in an appeal. Prior is following the trajectory that any careful and experienced criminal attorney would. To do anything else would be malpractice. Does that mean that there are grounds to dismiss the indictment? It doesn’t appear so, but I can’t be entirely sure, because I haven’t seen a copy of Prior’s motion yet.
The language in an indictment is critically important because it is the document that gives the defendant notice of the charges against him. Prosecutors should, and do, put great effort into the wording in indictments.
As I understand it, Prior is continuing the drumbeat for specific dates and times that he began during the preliminary hearing. He’s challenging the prosecutor’s representation in the indictment that the crimes happened “on or between the 22 day of September 2019 and the 9th day of June 2020,” for JJ, and “on or between the 9th day of September 2019 and the 9th day of June 2020,” for Tylee. Identifying a range of dates is a common practice for prosecutors. The indictment is not deficient because the dates are not more specific. The prosecutors know the last date each of the children was seen. We know the date the children’s remains were discovered. We have cell phone pings from Alex Cox that place him in Chad Daybell’s backyard on the day after each of the children were last seen. That’s circumstantial evidence that the children were buried on those days, but the prosecutor can’t say with certainty that the children’s remains weren’t placed there at some other time, between their disappearance and the discovery of their remains. To be safe, Rob Wood has identified the range of possible dates the evidence of a crime could have been concealed, altered, or destroyed.
It is unlikely the court will dismiss the case because of John Prior’s motion. The complaint appears to be tightly drafted; pleading a range of dates is an acceptable and legal way to craft an indictment.
John Prior has also requested a transcript of the preliminary hearing. He will need that to file any challenges or appeals to the way the preliminary hearing was conducted. For example, every time the judge ruled on one of Prior’s objections, it’s a ruling that an appeals court could review. Think what you might about Prior’s courtroom demeanor; he’s doing the job he was hired to do. Preservation of issues for appeal is at least half of a criminal attorney’s job.
I would expect to see a similar motion to dismiss filed on behalf of Lori Vallow Daybell soon.
