Change of Venue?

What is it and why might
Chad and Lori Want one?

August 18, 2020

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                As we wait for new developments in the Lori Vallow and Chad Daybell case, there is a lot of discussion on social media about a change in venue.

                Venue, and its close cousin, jurisdiction, are legal fundamentals. Jurisdiction is who has authority over the case; venue is where the case will be tried—generally, jurisdiction and venue overlap.  A case is tried in the state and the county or municipality where the crime happened because judges only have authority over matters that occur in the places where they preside. Once a case is charged in the county in which it occurred, it should be tried there unless there is some reason to move the proceedings.
 
                Another interesting point is that the language used in laws and rules is quite specific and intentional.  For instance, lawmakers use must and shall when the judge has no discretion to make a different decision and words like may when the court can deviate from the law under some circumstances.
 
                Note in the following rule that the word “must” is used.  The words “convenience” and “prejudice” also have specific meanings in the law. It’s unusual for a case to be moved for convenience, but I can think of instances where it might happen.  Say, for example, criminal negligence caused a train crash that damaged property and injured many people in a remote area.  A court might move the proceeding closer to the site to make it easier for witnesses, who might still be recovering, engineers, and accident experts who might still be working on the site, medical personnel who treated casualties, local law enforcement, and nearby property owners.  Note that when a case is moved for convenience, the decision is discretionary.  The judge may transfer the case.  The Vallow and Daybell cases don’t fall into this category.
 
The other reason a trial might be moved is for prejudice, which is quite applicable to the Vallow and Daybell cases. If a change of venue is requested, the move is not discretionary if the judge first finds that there is no way to hold a fair and impartial trial in the county.  The court must move the trial. There have been social media reports of people canvassing in Rexburg.  They are polling the public on whether they’ve heard of the defendants, and if they have if they’ve formed an opinion about them. I expect the results of their survey will be that most people in the area know about and have formed an opinion about the case.   The issue of prejudice is layered in this case.  First, there has been international coverage of the case. The facts are salacious; as many as six deaths may be connected to Lori Vallow and Chad Daybell, and two of the victims are children.  Second, the case involves unusual religious beliefs inspired by the teachings of The Church of Jesus Christ of Latter-Day Saints. Roughly ninety-six percent of the people in Fremont and Madison counties are members of the Church.  Worldwide, Church members are angry about the way Chad and Lori and their followers twisted mainstream LDS beliefs.
          
Idaho Criminal Rule 21. Transfer for Trial
A motion for transfer may be made at or before arraignment or at any other time the court or these rules prescribe.
(a)  For Prejudice. On motion of either party, the court must transfer the proceeding to another county if the court is satisfied that a fair and impartial trial cannot be had in the county where the case is pending.
(b)  For Convenience. On motion of the defendant, the court may transfer the proceeding to another county, for the convenience of parties and witnesses, and in the interest of justice.
(c)  Proceedings on Transfer.
(1)  Transfer Within a Judicial District. If the proceeding is transferred to a court of proper venue within the same judicial district, the judge granting the transfer must:
(A)  order the case transferred to a specific court of proper venue within the judicial district; and
(B)  continue the assignment over the case, unless the administrative district judge reassigns the case to another judge of the judicial district.
(2)  Transfer to a Different Judicial District. If the proceeding is transferred to a court of proper venue in a different judicial district, a new presiding judge is assigned as follows:
(A)  If the original judge desires to continue the assignment over the case, the judge may so indicate in the order, suggesting a court of proper venue, and refer to the administrative director of the courts for assignment by the Supreme Court to a court of proper venue and for assignment of a specific judge to preside; or
(B)  if the original judge does not desire to continue the assignment over the case, the judge must enter an order transferring the case without specifying the new place of venue, and then refer the case to the administrative director of the courts for assignment by the Supreme Court to a court of proper venue in another judicial district and assignment of a specific judge to preside in the criminal proceeding.
(d)  Disqualification of Judge.
(1)  Transfer Within a Judicial District. If a judge is disqualified from further handling of a proceeding which has been transferred to a court of proper venue within the same judicial district, the administrative district judge must reassign the case to another judge of the judicial district.
(2)  Transfer to a Different Judicial District. If a judge is disqualified from further handling of a proceeding that has been transferred to a different judicial district, the administrative district judge of the receiving judicial district must refer the case to the administrative director of the courts for assignment by the Supreme Court to a court of proper venue and assignment of a specific judge.

The rule allows the assigned judge to either stay on the case and suggest a place of venue or relinquish the case for reassignment to a judge in the new judicial district.  Candidates for relocation include Boise, in Ada County, which has a population of more than 228,000 with 15% being members of the LDS church, and Idaho Falls, in Bonneville County, with a population about 64,000, 23% of whom are Church members. Another possible location in Twin Falls, in Twin Falls County, with a population of about 87,000, about 12% of which identify themselves as Church members. If the judge finds that the defendant can’t get a fair trial in the current venue, the lawyers and judges do not have the right to dictate where the trial will be moved. The presiding judge can suggest if that judge asks to remain on the case. Ultimately, it will be the decision of the state court’s administrative director, the person who oversees the courts statewide, to decide where the trial will be held. 

I expect that Chad and Lori’s defense attorneys, either jointly or separately, will move for a change of venue, and I expect it to be granted.  The only question will be, where?  I predict Boise because of its population, but a judge could find that Idaho Falls or Twin Fall make more sense for the convenience of people traveling.  Idaho residents, I would love to hear your opinions, since I am not familiar with any of the communities.