Changes, Announcements and Motions
Yes, it's true!
I'm Launching my own
YouTube Channel
And today, we have
many motions
to talk about.
October 5, 2022
Hello Friends!
We have SO much to talk about.
First, I have a HUGE announcement. Because of your encouragement, I am starting my own YouTube Channel! And let me tell you, just writing that sentence makes me feel like I might need to have a defibrillator standing by. I am an old horse, and this will require so many new tricks. The first live broadcast will be on October 14, 2022, the day after I argue my motions to unseal the documents in the case. Those who know me know I’m okay talking in front of a camera; it’s pushing all the right buttons that worries me, but I know I’ll be among friends, and you will be patient with me. Thank goodness there are endless YouTube how-to videos. Let me know if you’re an experienced moderator who would like to help. The channel is called Children of Darkness and Light, and you can find it here https://youtu.be/qRguPBu8GXg. The show will air On Friday evenings at 6 pm Pacific Time. I’ll be uploading a pre-recorded introductory video later this week.
My new channel will focus on the Lori Vallow and Chad Daybell story. As most of you know, I’m under contract with Pegasus Books to write about the case. I started my newsletter, and now my channel, because you have questions about the finer legal points of this complicated case. So we’ll continue to talk about those things, but we will also talk about other facets of the case. My patient publisher is committed to publishing a book that tells the whole story, so don’t expect it to be a book only about legal issues.
Next, my newsletter will be getting a facelift. I am changing email distribution platforms. My I.T. advisor assures me my mailing list will transfer over to the new service without interruption, but I propose, and the internet gods dispose. If it seems like you are missing newsletters, please let me know at http://info@thelorivallowstory.com. The web address will remain the same: https://thelorivallowstory.com/.
Some of you have asked why I took the big step of filing motions to unseal documents in the Vallow/Daybell case. The short answer is because I can – because it’s something I know how to do. You’ve also asked why other media outlets have not joined me. Most journalists believe that involving themselves in a story compromises their objectivity, and I respect that. Still, I’m a lawyer and an author, not a writer who only happens to be a lawyer. My devotion to my profession is intrinsically part of who I am. I was eighteen years old the first time I took the oath to protect and defend the Constitution of the United States. Over the next twenty years, I swore that oath several more times. I took it when I reenlisted in the military and when I was sworn in as a lawyer in two states. That oath means everything to me, which is the longer answer as to why I filed the motions.
Something is going on in this case that isn’t right. I don’t know yet, what exactly isn’t right or how deep into the case that ‘not-rightness’ extends. I don’t know what, if anything, the small-town Mormon culture has to do with it. I aim to find out and expose it, not because I’m a journalist but because I’m a lawyer who values the rule of law and the right of the defendants to a fair trial. Chad Daybell and Lori Vallow are accused of heinous crimes against people they were supposed to love and protect. If convicted, they will face the consequences. No matter what they did, they still have a constitutional right to due process. When defendants receive fair trials, our system works. Defendants are held accountable, and the victims’ families receive assurance that justice was served. On October 13, 2022, at 9 am, Judge Boyce will take up my motions to unseal the documents in the case. I’ve said before I don’t expect him to unseal the documents, but I hope I’m wrong. Regardless of his decision, I’ve done what I thought was right.
October 13, 2022, will be an entire morning of hearings on motions, including the following.
There have been several filings in the past two weeks. Expect more filings as the trial date draws closer. Some of these filings are intended to set the stage for the trial; others are designed to establish claims for future appeals. Let’s take each of them separately, starting with the ones filed for Chad. Caution: this will be a longer-than-usual newsletter.
Motion to Sever. Chad’s attorney, John Prior, points out in this motion that both he and the judge applied the wrong legal standard in the court’s March 21, 2022, decision to deny severance. The court applied the law as it pertains to the joinder of offenses rather than the joinder of defendants. When the appellate court examines a lower court decision like this, they ask if there has been an abuse of discretion on the trial court’s part. Applying an erroneous legal standard is, per se, an abuse of discretion, even if both the court and the moving party got it wrong. That means the defense gets a ‘do-over’ on the earlier motion. Additionally, some things have occurred since the last motion to consider. Motions to sever can be raised at any stage in the trial, and as many times as necessary, any time there is a change in circumstances.
When Prior filed the first motion to sever, Chad’s codefendant, Lori Vallow, had been found incompetent and was in a state mental hospital receiving restorative services. She had not been arraigned, and a notice of intent to seek the death penalty had not been filed in her case. But, as Prior points out in the new motion, those circumstances have changed. Lori has been restored to competency, arraigned, and the state has filed the notice of its intent to seek the death penalty.
As Judge Boyce has already acknowledged, death penalty cases are different. Trials must be conducted, and pretrial motions must be considered with a “greater degree of reliability Lockett v. Ohio, 438 U.S. 536, 604 (1978).” The heightened level of due process applies at all phases of the trial, including pretrial matters. The constitution also requires that each individual be considered separately. When defendants are tried together, that individualized information can get lost, be watered down, or be improperly applied to both defendants. John Prior points out, “Any process that dilutes Mr. Daybell’s mitigating evidence hampers the jury’s ability to ‘give full consideration and full effect’ to mitigating circumstances.”
Prior says that a joint trial would materially prejudice Chad and deprive him of his constitutional right to present a complete defense. As he points out, “one of the plainly available defenses would be to demonstrate that Ms. Vallow and her brother, Alex Cox, were responsible for the crimes.” The problem occurs when Prior attempts to introduce evidence of Lori and Alex’s prior bad acts. This evidence scenario is known as reverse 404(b) and refers to rule 404(b) of the Federal Rules of Evidence.
All states have their own rules of evidence; most are organized, categorized, and numbered like the federal code. Idaho Rule of Evidence (I.R.E.) 404(b) says, “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character to show that on a particular occasion the person acted in accordance with the character.”
The rule generally keeps the prosecutor from bringing in evidence of the defendant’s character that might be irrelevant but prejudicial. However, the defense can also use the rule (hence the designation of ‘reverse’ 404(b) evidence) to suggest that some other person who has done similar prior bad acts did the crime. In defense attorney circles, we call it the ‘SODDI (some other dude did it) defense.’
In this case, there’s a problem: Alex Cox is dead. That means John Prior can offer Alex’s hearsay out-of-court statements at trial, including his statements about killing Charles Vallow, because there is an exception when the declarant is deceased. He can use that information to suggest that because Alex killed Charles and took shots at both Tammy Daybell and Brandon Boudreaux, it’s more likely than not he killed Tammy and the children. While that works for Chad, it’s a problem for Lori because it violates HER sixth amendment right to confront and cross-examine witnesses against her (because the witness – Alex – is dead. If the court allows Chad to put on evidence of Alex’s statements, it violates Lori’s constitutional rights. If the court doesn’t permit Chad to bring that evidence in, it violates his right to present a complete defense. Catch-22, right? Further, if Lori has made any incriminating statements, Chad should be able to use them to bolster his SODDI defense, right? Maybe not. Lori could claim those inculpatory remarks are protected under the fifth amendment protection against self-incrimination. It’s getting messy.
Now we can see how a joint trial could disadvantage both defendants. The judge can’t caution the jury to consider a piece of evidence as it applies to Chad while ignoring it as applied to Lori. That’s precisely the situation from the Bruton case. Once the conflict happens, the problems spill over into the penalty phase. You may recall that death penalty cases are done in two phases. First, the jury determines guilt or innocence. If a defendant is found guilty, the jury must then decide whether to impose the death penalty or whether there are sufficient mitigating circumstances to impose life in prison without the possibility of parole instead. In the penalty phase, the jury may consider the defendant’s remorse, cooperation, and voluntary self-incrimination as factors. That’s a problem when the other defendant remains silent. Even though each defendant has an absolute right to remain silent, how do you explain that to a jury? Juries are smart, but they’re also human. How do you ask them to consider one defendant’s remorse or self-incrimination without inferring things from it about the other defendant?
Lastly, John Prior argues that the death penalty is biased by gender. He’s not wrong. His statistics show that between 1972 and January 2021, 8,581 men in the U.S. were sentenced to death, and only 175 women. In Idaho, there are eight people on death row; seven men and one woman. The woman, Robin Row, set her family home on fire in 1992, killing her husband and children, ages eight and ten, to collect their life insurance. Prior contends that in a joint trial, there is a likelihood the jury will render a harsher punishment for the man than the woman. There are, of course, counterarguments that a jury will punish a mother more harshly for murdering her children. Either way, the penalty phase could be influenced in a joint proceeding.
Motion to Continue. Next, John Prior filed a motion to continue the trial. Prior’s argument boils down to this: Chad has waived his right to a speedy trial, and he has a right to adequate time to prepare. He should not be rushed into trial because his codefendant has refused to waive her speedy trial rights. And yes, I do remember when John Prior pressed for an October 2022 trial date. It’s a common tactic to press the prosecution to trial before they’re ready. Technically, the prosecutor should not bring charges until they are sure they can prove the case. In reality, prosecutors file charges before the case is thoroughly investigated all the time. Asking for a quick trial setting is a good way to hold the prosecutions’ feet to the fire and perhaps squeeze a good plea offer out of them. Death penalty cases are complex and labor-intensive. Most death penalty cases have a full-time team of at least two attorneys, a full-time investigator, and a full-time mitigation specialist. In addition, the defense employs various experts, from forensic scientists to mental health professionals, to evaluate evidence and support mitigation. Prior says he needs more time, time to hire experts and consult with them, and time to hire an additional attorney. Prior says he has been unable to hire a co-counsel. He needs someone experienced, and it’s unclear whether his failure to find someone is a financial or logistical issue. Death penalty cases are costly. The trial phase alone can cost millions, and that’s before the endless appeals begin.
Anecdotally, I can tell you that many defense firms and public defenders are having trouble recruiting and retaining qualified lawyers because of low compensation and crippling caseloads. However, new lawyers can find substantially better pay and working conditions in the civil sector.
John Prior also points out in this motion that the mitigation investigation is daunting. That investigation chases down every medical, school, legal and social record for every family member for three generations back. Mitigation investigation is a highly specialized job. The merit phase (also known as the guilt or innocence phase) must be thoroughly investigated so that the mitigation specialist knows where to begin looking for information to justify not imposing the death penalty.
Motion for Grand Jury Transcript. John Prior is asking for additional grand jury information. You may recall that the grand jury met initially in May of 2021, and the murder indictments were issued from that grand jury session. Then in December 2021, the state recalled the grand jury for a day, but no new charges were filed as a result. John Prior now reports that he has never received the transcript of that later proceeding and does not know who the witnesses were. He is asking for the court to order a transcript of that last grand jury session. You might recall the transcript of the three-day grand jury session in May 2021 took months to complete.
Motion for a Bill of Particulars. Lastly, John Prior has filed a Motion for a Bill of Particulars. It’s a request for the prosecution to narrow down the scope of their accusations. Prosecutors intentionally keep their charging documents as general as possible. That avoids having to return a case to the grand jury if the later investigation turns up conflicting facts. It also means, as Prior points out, the state winds up with vague counts or counts that allege the crime could have happened in several ways or on more than one date. The indictment also alleges other unnamed co-conspirators, known and unknown. While that’s a convenient catch-all at the front end of the case, the prosecutors now need to declare their theory and the co-conspirators and stick to it. That’s what a bill of particulars does. It’s an order from the court directing the state to say precisely what they intend to prove at trial. Here is a place where civil and criminal law are different. In criminal law, there can be no ‘trial by ambush.’ The prosecutor must clearly and transparently outline the charges and share all evidence against the defendant. Lori Vallow’s attorneys have also asked for a bill of particulars on her behalf.
Moving on to the filings from Lori Vallow’s attorneys, there are a few things of interest.
Cameras in the Courtroom. Interestingly, when Lori Vallow’s attorney filed their motion to ban cameras in the courtroom, they didn’t bother to serve her codefendant, Chad Daybell. Chad and his lawyer were never given a chance to weigh in on the issue before Judge Boyce ruled. That’s a serious oversight. The judge ruled that cameras would no longer be allowed in the courtroom. That means there will be no live stream coverage. John Prior has now asked the judge to reconsider that decision because Prior did not have a chance to weigh in. Whether there are cameras in the court is entirely up to Judge Boyce. His decision, either way, is not appealable, but it is modifiable. He could change his mind depending on input from Prior or the Ada County courthouse administrator.
Motion to Prevent Death Qualification. This is an interesting motion. In some ways, it is a corollary to Prior’s motion to sever. Lori’s lawyers are saying that asking a juror if they believe in the death penalty and if they could impose it is prejudicial to Lori. They argue that you automatically get a more conviction-prone jury by asking people that question than if you don’t ask. They cite lots of research that shows that death-qualified juries tend to be whiter and more politically conservative than the overall jury pool. While interesting, I don’t believe the motion will go anywhere. This is one of those motions raised to tee up an appeal on a novel issue.
IDHW Response. There have been many questions about an entry in the database in Lori’s case that is labeled “Response” from the Idaho Department of Health and Welfare. Some have jumped to the conclusion that it has something to do with Lori’s competence, but it does not. It is simply a response to my motions to unseal the documents. The IDHW had to be served with my motions because they became an interested party once Lori was committed to them. The response indicates they do not intend to appear or take a position on my motions to unseal.
Motion to Continue Trial To Toll Time Limits and to Stay Case. There does appear to be news about Lori’s mental health. Her attorneys just filed a new motion to continue the trial. They note that by statute, they are required to give written notice of their intent to raise any issue of mental health condition 90 days before trial, which would be by October 11, 2022. Then there follows a paragraph that is redacted, and finally, a statement that “Because of _(redacted)_ the defense asks for a toll on the time limits in which to comply with pretrial orders, a continuance of the pretrial date and a continuance of the trial date.”
This is interesting for several reasons. First, this is precisely how documents should be filed when they contain sensitive information, redacted, not sealed (hallelujah), and this change seems to be in response to my motions. Second, the defense is asking for the time to submit pretrial orders to be tolled (put on hold) and the pretrial conference and the trial to be continued, which is odd because Lori was the one who refused to waive her speedy trial rights. The judge has already muddied that appellate water by setting the trial date three months beyond her six-month speedy trial deadline. Now, Lori’s attorneys are asking for more time, but there isn’t any indication that she is waiving her right to a speedy trial. That could mean they anticipate the time being tolled because she may again be committed as incompetent. That’s only speculation, but her lawyers have made no secret that her mental state is fragile. There is no telling yet how this will impact Chad’s trial date or his motion to sever.
I warned you this would be a long newsletter! Expect that there will be much more to talk about as the trial gets closer.
I want to thank you all for your encouragement and support. I look forward to seeing you all soon in live chat!
