Clarifying the motion to clarify
Hello friends! Many of you have asked me to explain the state’s Motion to Correct Case Heading and The Clarify the Court Order Dated August 6, 2021. Many people jumped to the conclusion that this is just Lori wanting the court to call her by the last name of Daybell. Some think this is an end-run to sever the cases. It’s neither. Let’s break it down.
The prosecutor has discretion whether to charge multiple defendants under a single indictment or to issue individual indictments. When two people are listed on a single indictment, the court should file the indictment under a single case number. Instead, the Fremont County court filed a separate case and assigned a separate case number for each defendant. Because they are codefendants, the attorneys and the court have filed all the relevant documents in both cases, leading to confusion. For example, people jumped to conclusions when Chad’s death penalty notice was filed in Lori’s case. The judge made it even more confusing by issuing an order that said the trials would be together, but individual filings could be made in one case and not the other. That’s unusual, and as Rob Wood points out, it can cause its own complications. According to the state’s motion, the judge met in chambers with the attorneys and the court administrator to discuss this. The administrator said they filed separate cases because of the way the court database is organized. While I know that there are limitations in the Odyssey system (the court’s database software), this seems odd to me. We often combined documents to save time and paper in the old days, but now every document, motion, and declaration has to be filed as a separate document. That said, it should not preclude the filing of a single indictment with two codefendants. The judge directed the administrator to look into the matter and said there was no reason the state should be required to file a motion to deal with the issue. However, when the court did not correct the problem, the state filed the motion. Wood and Blake argue that the judge’s order amounted to a partial severing of the cases. I think they are correct. I think the court should have charged the defendants together in one case number. If the cases were later severed for trial, the cases could be divided. It is more than just an academic question. It also has to do with the timing of trials and whether Chad’s trial could be delayed because Lori is incompetent and how motions are heard.
The issue is more than just who appears in the case heading or whether the defendants have two case numbers. There are valid constitutional questions on both sides of the issue. When cases are joined, motions are filed and heard jointly. The prosecutor points out that the way the court’s current order is written if the court hears a motion like the change of venue only as to Chad, it deprives Lori of the ability to appear and respond. Another good example is the consumptive DNA testing. If the court makes a ruling on that motion while Lori’s case is stayed, she won’t have the chance to weigh in on the issue before the DNA testing is done and the sample is consumed. In fact, there’s also more news on that front that I will get to in a moment.
The judge denied the prosecutor’s motion yesterday and said things would remain as they are. But what happens now? The state argues that the cases are joined and that because of that, Chad’s case is effectively stayed too. But John Prior has filed a motion to sever the cases.
Can the judge decide any motions while Lori’s case is stayed and she cannot weigh in due to her incompetence? Hmmm. As Lindsey Blake noted in yesterday’s hearing, this is a novel issue. That means it’s an issue that there is no precedent for. As you may have noticed, courts rely heavily on precedent. In fact, the legal doctrine of stare decisis (stand by things decided) is at the heart of our judicial system. It stands for the idea that once an issue is decided, we will stick to that decision unless there is a very compelling reason to overturn it. It stems from the idea that there must be finality in decisions; otherwise, our legal system gets bogged down in re-deciding the same issues over and over. But what happens when there is no precedent in the state? Sometimes (as we saw in the state’s motion), they rely on federal law or decisions in other states. However, precedent from other jurisdictions is not controlling. The issue could wind up before the Idaho Supreme Court, but getting something before the state supreme court is a long process. The entire question may be rendered moot (no longer relevant) if Lori becomes competent.
Based on his comments yesterday, Judge Boyce appears to believe that the cases are both stayed as long as Lori is incompetent. Hearings on Prior’s motions to sever the cases and change the venue are unlikely to occur while Lori is incompetent. Joinder vs. severance is always a push-pull issue. Joinder leans toward efficiency and certainty. The state only presents their case once, witnesses only testify once, one judge makes evidentiary decisions, and one jury decides the case. Severance leans toward protecting each defendant’s constitutional right to due process and a fair trial. Cases are severed, so the evidence and argument presented on behalf of one defendant do not prejudice the other.
The state also filed a Response to Motion to Oppose use of and Motion to Preserve Fingerprint Samples. As you may recall, the state notified the court and the defendants that they had samples that the lab wanted to test but that the test would consume the sample. We got a bit more information in the state’s recent response. The lab is in possession of fingerprints lifted from tools in Chad Daybell’s shed and from the material that wrapped JJ’s body. Testing those samples could produce what is called “touch” DNA. That is, each time we touch something, in addition to our fingerprints, we also leave minute traces of our DNA, carried by the oil and sweat on our skin. That DNA can be tested and used to identify the depositor further. However, testing the sample will destroy the fingerprint. Typically, the fingerprints are preserved as scanned high-resolution images in this situation, and then the testing is performed. In any case, when there is only one shot at testing, both sides should have experts present to assure all testing procedures and protocols are correctly followed. The state’s motion also indicates that the state crime lab does not allow observers. Therefore, the judge has two choices. He can order the state crime lab to permit the defense experts to observe, or he can order that an independent lab process the samples and permit the state lab technicians to observe. The judge does not have to decide because, for the moment, the state says they will not pursue the testing.
The state has decided not to pursue testing the fingerprint samples because they don’t want to risk that the evidence will not be admissible against Lori. Suppose the state goes forward with the testing while Lori is incompetent. In that case, her lawyers could argue that the evidence can’t be considered at her trial because she could not argue the motion before the tests consumed the samples or have her own experts observe the testing. At this point, the state believes that preserving the fingerprints and their chance to test later is more important than the evidence the touch DNA might produce.
I’ve had a question from a follower; it’s a general question that may be more relevant to other true crime cases, but it’s worth mentioning here. Her question: what is the difference between homicide and murder? There is a big difference. When police say a person’s death has been ruled a homicide, it simply means that a human was killed by another human. It does not automatically mean a crime has been committed. There are a number of ways one person can kill another that do not meet the legal definition of murder. The most common instance is negligent homicide, which happens when someone’s negligence causes the death of another person. For example, an adult who accidentally leaves his child in his car in the summer could be guilty of negligent homicide if the child dies. Since the death was not intentional, and the defendant did not kill the child with “malice aforethought,” it’s not murder. In other words, homicide is a factual conclusion, while the law defines murder. People sometimes cause the death of another person by accident even if they are not negligent because, as we all know, shit happens. It will be up to law enforcement to determine whether the facts surrounding a death indicate that the person doing the killing intended to kill a person.
I will be joining Lauren Matthias on her YouTube channel, Hidden True Crime, for a live show tomorrow night. Join us Friday, September 24, 2021, at 7 pm PDT at https://www.youtube.com/c/HiddenTrueCrime.
