December 2, 2021 Recent developments

Well, hello there! It’s been a minute since we’ve talked about the Vallow/Daybell case, hasn’t it? I hope your Thanksgiving was perfect. We spent the week with our family in Pasadena, California, where we cooked, baked, played games, and drank good wine. I’m here to tell you when I went to exercise class this morning, it felt like I’d been away from it much longer than a week. Hang on because this edition is long.

Just when you think things are not moving, something crazy happens. On November 26, 2021, there was another mystery filing in Lori Vallow’s case. There was a document titled Notice of Appearance, then a motion and order to seal. There was also a motion and a supporting brief to Modify Subpoena Duces Tecum. None of the documents appear on the court’s Cases of Interest site, so we can’t see the actual content; we can’t tell if the motion to seal applies to the Notice of Appearance or the Motion to Modify the Subpoena Duces Tecum. I’ll be discussing sealed documents and hearings at length in a future newsletter. It’s unclear what or who the notice of appearance refers to. Different filings can be called different things from state to state, so it’s impossible to understand this one without seeing the actual document. However, notices of appearance have previously been filed when a new lawyer comes on the scene. The continued sealing of documents is frustrating.

The prosecution filed a motion asking the judge to reconsider his decision on bussing in a jury. Chad’s attorney, John Prior, objected, and Lori’s attorney, Mark Means, joined in the objection. The court initially set a hearing on the motion, but Judge Boyce just vacated the hearing (in Idaho, that means the hearing was canceled). Judge Boyce gave several reasons for not holding the hearing, and they’re worth reviewing.

There are two words the law has stolen from the kitchen: ripe and stale. In the law, an issue must be ripe to be decided. In this context, it means that the case has an existing controversy that warrants judicial intervention. In other words, the case is ready for the court’s decision. A case, document, or fact becomes stale when too much time elapses without action or the statute of limitations runs. Judge Boyce, in his Order Vacating Hearing, addresses both problems. The state wants to present additional information to the court beyond what was presented in the October 8, 2021 hearing. The defense objected. The judge sidestepped the issue of whether the question had already been answered by saying the issue isn’t ripe yet; any information they present now would be speculative since there are still many questions, and any decision could be stale by the time the trial happens. Judge Boyce pointed out the trial has not been scheduled and commented that he is aware that “counsel for both parties are requesting that the trial not be scheduled in the near future.” The judge also noted that the trials are joined, and Lori’s case is currently stayed. There is a pending Motion to Sever filed on September 7, 2021, but it has never been decided. Also, there is no way to know whether the courts in Idaho will still be curtailing operations, including jury trials due to COVID-19.

There are still other hearings set today, December 2, 2021. The first, scheduled for 1 pm, is a hearing on the Motion for Discovery Concerning Events. It’s the motion John Prior filed to obtain discovery about Lori Vallow’s telephone call to the LDS church attorney. The prosecution notified Lori’s court-appointed lawyer, Jim Archibald but did not notify Chad’s lawyer of the call. There is also a scheduling conference today at 2:30 pm. So what do I expect from those hearings? Time for the crystal ball – I’m writing this the morning before the hearings. Let’s see if I’m right. I expected the judge to order the state to provide Prior with all the information they have about the call Lori made from her treatment facility. I also expect the judge to set the trial in May or June of 2022 and a hearing on the motion to sever the trials soon, perhaps as early as January.

Now for what really happened. My crystal ball could not have been more wrong. The outcome of yesterday’s hearing made me yelp “WHAT?” in the self-checkout line at Walmart, drawing the attention of an employee in a yellow vest who thought I needed help with the check-out system. What made me yelp was Rob Wood’s request to set the trial for September 2023. Let that sink in.

First, Wood and Prior bickered about the amount of time the trial would take. Wood said eight weeks, then said he thought ten weeks, including jury selection. It’s reasonable to expect jury selection in a high-profile death penalty case could take as much as two weeks to complete. John Prior then said he had looked at the number of witnesses on the prosecution’s list and compared it with the witnesses he intends to call. He thought the case could be tried in six weeks based on that. I think it’s safe to plan for ten weeks. No attorney wants to chop a case up by continuing it to future dates. When Rob Wood proposed the September 2023 date, no one’s eyes bugged out, so they must have expected it. Prior then countered, saying he preferred October of 2022. Prior reported to the court that his expert witnesses are lined up, and he could be ready by that time. Wood then explained – one could say whined - about the move to Ada County and how burdensome it would be on the state. Jim Archibald then suggested the trial should not be set during the November to March period because of harsh weather. Prior pointed out that Rob Wood represented to the court months ago that he was ready for trial. He also said he has been driving between Boise, where his office is located, and Rexburg for a year and a half and hasn’t had a problem. Prior is correct; the prosecutor must be prepared if the defendant exercises their right to a speedy trial.

If Chad had remained in custody and had not waived his speedy trial right in Idaho, he would have had to be tried six months from his indictment. When a prosecutor brings a charge before a grand jury, he’d better be ready to try the case. Chad did waive his right to a speedy trial. I have written other newsletters that go into detail on this issue. Chad waived his right to insist on trial within six months of his indictment, but that’s not the end of his speedy trial right. The U.S. Supreme Court has decided this issue, as have many state supreme courts. Failure to move a case to trial in a timely way while a defendant is in custody can result in a dismissal of the charges. John Prior is right; three years, even on a death-penalty case, edges into the territory of a defendant being denied due process.

John Prior said that, provided he had all the discovery, he could be ready for trial on his timeline in October of 2022. Lori’s attorney, Jim Archibald, was present. When asked, he indicated he couldn’t estimate when Lori would be available but said they had not yet started their mitigation work. Scott Reisch was outraged, remarking that preparing for trial and preparing a mitigation case (to present facts to mitigate the death penalty) should proceed in a parallel manner. However, he failed to note that Lori Vallow’s case was stayed before any notice of intent to seek the death penalty was filed. Therefore, it would be premature to begin the mitigation work before the death penalty was even on the table.

There has been enough bickering about discovery to make anyone nuts. We can get a clearer picture if we separate Mark Means’ shenanigans from the rest. The prosecution has been slow to provide discovery. That’s a fact. I think much of it stems from the prosecution’s fear that the materials would be leaked to the public or the press. A reasonable concern if you toss Mark Means into the mix. We know Means shared confidential material with a YouTube creator several months ago. But the publicity surrounding the case does not excuse the state from its obligation to share the discovery with the defense in a timely way. Just like a broken clock is right twice a day, I think even Mark Means gets it right once in a while. Prior’s comments about discovery were a little petty but could prove prophetic if it turns out the state has not turned over all the discovery.

The judge also asked about setting a hearing on the motion to sever that John Prior filed in September. John Prior pointed out that the rule requires that the state tell him which statements of either party the prosecution intends to introduce at trial before the motion to sever is heard. That is so that Prior can argue the issue of prejudice. Prior said the court needed to decide that preliminary motion before the issue of severance could be determined, and the motion had not yet been filed. Prior promised it would be filed immediately, and the judge declined to set a hearing until the motion is filed.

I’m a lawyer who likes to give my colleagues the benefit of the doubt. I’ve tried doing so with Judge Boyce. He seems like a likable guy. However, his failure to manage this case is getting out of hand. As an example, he once again put off a decision. He said he couldn’t decide whether John Prior was entitled to the discovery about Lori’s phone call to the LDS Church lawyer and postponed any decision. I think Judge Boyce needs to take a firmer hand in the case and move things along. Setting motion hearings and deadlines is crucial if this case ever gets to trial. Judge Boyce indeed needs to take charge where Mark Means is concerned.

Late on Monday afternoon, the prosecutors filed a response to Mark Means’ motions related to the LDS phone call. Rob Wood and Lindsey Blake take Mark Means to task in the response. In a footnote to the response, they take a swipe at Means right away. The footnote reads, “While it is customary to refer to the defendant and their attorney as ‘the Defense,’ it would be inappropriate in this response to do so. Defendant Lori Vallow/Daybell is currently deemed incompetent, and a stay exists in her case. She is also co-represented by death penalty qualified counsel, Jim Archibald. It is of note that Mr. Archibald did not sign this filing, and it appears that Mr. Means acted unilaterally in preparing and filing this motion. There is no affidavit from Lori Vallow Daybell supporting such allegations. Where the defendant is deemed incompetent and cannot consent to such filing, where the defendant has made no verified assertions to support such motion, and where Mr. Archibald did not sign said motion, it is appropriate to consider this Mr. Means’ filing for clarity rather than an actual filing of the entire Defense team.” In other words, the prosecution is not so subtly pointing out that Means remains a loose cannon.

The prosecution first takes on Means’ claim that there have been “Brady violations.” As those who read the newsletter regularly already know, the U.S. Supreme Court case of Brady v. Maryland, 373 U.S. 83 (1963) stands for the rule that the prosecution must give the defense all information they have about the case, including exculpatory information and may not suppress evidence favorable to the accused. To be considered Brady material, information must be material to either guilt or punishment. Brady does not require that the prosecution investigate the case for the defense. Nor does Brady require that the state disclose matters not material to guilt or punishment.

For those who may not know, while Lori was in her treatment facility, she watched the change of venue hearing via Zoom. She was attended by a mental health clinician identified as N.C. Since the motion applied to both codefendants, it was appropriate for Lori to watch the proceedings. Presumably, NC is Nicole Cleveland, whose affidavit was recently filed in Lori’s case. Remember, the only information we have about this incident is what was reported to Mark Means (who tends to exaggerate) by his incompetent client, who has a history of lying. According to Means, Lori told him N.C. “recommended to Defendant that she contact the Church of Jesus Christ of Latter-Day Saints legal counsel to discuss her case and possibly obtain legal counsel to assist her instead of State appointed Public Defender.” N.C. then took the recommendation a step further and made the call part of Lori’s treatment “homework.”

According to Means, NC provided her with the phone number, and Lori made the call to Daniel McConkie, an attorney at the law firm of Kirton McConkie. McConkie told Lori he couldn’t represent her or talk to her since an attorney represented her. Conversely, Means claims that Lori spoke at length with McConkie and that the attorney told her he knew all about her case. When clients discuss their case with their attorney or a member of their attorney’s staff, the communication is protected by the attorney-client privilege. Neither the lawyer nor the client can be compelled to disclose the substance of their communication. That is not the case when a person talks to just any lawyer. Means is concerned that Lori may have made incriminating statements to McConkie that are not covered by attorney-client privilege, and he’s trying to find out what, if anything, Lori said. Means claims there are “Brady Violation Disclosures” relevant to this occurrence but doesn’t specify what they are. As the prosecution accurately points out, incriminating statements made by the defendant to a third party and which were not solicited by the state, and was not made to a state actor such as the police, and are not in the state’s possession are not Brady material.

Once again, Mark Means does not understand Brady. He seems to think Brady requires the state to do the defense’s investigative work. It does not. The prosecution stops short of calling Means a stupid buffoon, but it’s a near thing. They remark that giving the remainder of Means’ filing “the most charitable interpretation,” it seems that he is asking the state to produce any self-incriminating statements Lori Vallow Daybell may have made to Daniel McConkie that are in the state’s possession. The state says they do not have possession or control of such statements. The state points out that Lori’s other counsel, Jim Archibald, spoke to Daniel McConkie, and there is no reason Means could not do the same. Or perhaps Means could talk to his death-penalty qualified co-counsel about what Archibald learned during his conversation?

As I commented in earlier newsletters, Means is simply out of his depth. He has no idea how to work a case as complex as this one. Instead, he appears to be pursuing irrelevant and unnecessary information and posting useless things on Twitter about sports, politics, and thinly veiled comments about the case. The state goes on to point out the obvious about Means’ attempt to subpoena out-of-state witnesses for depositions: that it is “unsupported by law or fact.” That’s a professional way of saying the attempt is ridiculous.

Every action an attorney moves the court for must be permitted under the law. You can’t make the law up to suit you. That’s law school 101. If you ask the judge to do something, you must also tell the judge why you think he has the authority to do so. In this case, judge Boyce has no power to do what Means asks. The only authority a judge has is to commit an incompetent person to the care of the Idaho Department of Health and Welfare (IDHW) for restoration services. The judge has the authority to determine whether the defendant is legally competent. Still, once the judge determines the defendant is not competent, his only option is to commit the defendant to the IDHW for restoration treatment. The judge can’t pick another agency or treatment provider, and he can’t tell the IDHW how to do their job. No provision in the law permits the judge to disqualify them. Think of it this way – the judge is part of the judicial branch, and the IDHW is a department under the executive branch’s control. The judicial branch cannot tell the executive branch what to do unless the legislative branch has given the judicial branch specific authority to do so.

The prosecution makes an additional interesting point. Every lawyer is governed by the ethical rules of their state licensing board, the state bar association. They are also governed by a statute that precludes them from filing frivolous documents.

Idaho Rule of Civil Procedure 11 covers all filings, including criminal cases. The relevant parts of the rule are:

Signature. Every pleading, written motion, and other paper (emphasis mine) must be signed by at least one attorney of record licensed in the State of Idaho, in the individual attorney’s name, or by a party personally if the party is unrepresented. The paper must state the signer’s address, email address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper, whether by signing, filing, or submitting, or later advocating it, an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.(c) Sanctions.(1)In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court must impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. A law firm may be held jointly responsible for a violation committed by its partner, associate, or employee. (2)Motion for Sanction. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party on the motion, reasonable expenses, including attorney’s fees and costs incurred for the motion.

If the judge finds that an attorney files documents in bad faith or for a frivolous reason, he can impose sanctions. That is above and beyond any sanctions that might be imposed by the State Bar for unethical conduct.

The state also points out that Means likely violated his duty of confidentiality to his client by making her statements public, which is a sanctionable ethical violation. Finally, the state mentions that Mark Means is the only witness to swear to the facts contained in his motion and that his client could not attest to the facts because she is incompetent.

Finally, the state points out that Means still has a conflict because of his prior representation of Chad Daybell in the days before Chad’s arrest. The state asked the judge to inquire into the conflict again. They also point out that presently, Lori Vallow is not competent to waive the conflict knowingly and intelligently. The state asks, at a minimum, that until there can be an inquiry, Means be forbidden from filing documents in the case unless his co-counsel also signs them. And yes, this is the legal equivalent of asking the court to order adult supervision for Means.

People frequently ask me, “why is Mark Means still on this case?” The short answer is I don’t know. I’m as mystified as everyone else. Everyone has the right to retain the attorney of their choice, even a woefully unqualified one. No one knows the financial arrangements between Lori Vallow Daybell and Mark Means. No one knows who, if anyone, is paying his fees. It’s possible that after the money ran out, he decided to stay on pro bono. He would still be considered retained. It’s also possible someone else, like Lori’s family, is paying Means. Most state bar associations take a long time to investigate and adjudicate ethical and malpractice complaints. It’s not typically a fast process, although we recently saw Louisiana’s state bar quickly suspend the licenses of a couple of attorneys connected to the Alex Murdaugh case.

Finally, there was an interesting tidbit on Court T.V. yesterday. Court T.V. announced that a source has revealed that the state was reconvening the Fremont County grand jury, in this case, today (Friday, December 3, 2021). It seems credible, given that they were right about the first grand jury in May. The prosecutor can ask to reconvene the grand jury and ask them to consider additional information that leads to new charges against the present defendant or a new defendant being charged. Speculation is rampant that Melanie Gibb, Zulema Pastenes, or Melani Pawlowski might be the target. It’s possible, although I think it’s more likely that those three would be charged in Arizona for the circumstances surrounding the deaths of Charles Vallow and Alex Cox and the attempted murder of Brandon Boudreaux. If one of them is being charged, I’m sure it’s an attempt to flip them. With Lori incompetent, the state can’t flip her against Chad. If an indictment is issued (it’s likely since, as they say, a grand jury would indict a ham sandwich), I expect we will know about it next week. Grand jury proceedings are secret, but the indictments they produce are not, and the state has been pretty prompt in filing them with the court once they are issued.

There were a couple of things to note for those who watched the hearing. First, mark Means was not on camera but apparently appeared by phone. Lori’s court-appointed lawyer, Jim Archibald, was on camera for the Zoom call. And is it just my imagination, or did Rob Wood look a little haggard? Do you think this case is getting to him?

A bit of housekeeping: thanks to all of you who pointed out flaws in the newsletter layout. It helps a great deal because I don’t know there are problems unless you tell me. I’m told the format is hard to read on mobile devices. I’m working with my I.T. guy to remedy the situation. It may require changing email platforms. Thanks for your patience.

I’ll be appearing on Lauren Matthias’s Hidden True Crime TGIF show on YouTube this evening at 7 pm PST. Join us with your questions.