Did Rob Wood commit prosecutorial misconduct?
Why did Rob Wood meet with Summer Shiflett and Zulema Pastenes?
December 16, 2020
Hello, my friends. I want to start with some thoughts on Christmas; I hope you get a blessing from it.
I am unpacking Christmas, setting out cherished decorations, deciding where to put each piece, and thinking about the hands that packed these things away after last season. Those hands are not the same as these hands.
Those hands were younger, less prone to melancholy, but also less accomplished. Those hands had not yet absorbed the reality of 300,000 deaths, the missed holidays, the zoom family gatherings, and the inchoate longing that comes with quarantine. Those hands had not flown and fluttered over the keyboard, producing words that would shape themselves into a first book deal. Those hands didn’t have a literary agent. Those hands had not yet found the shape of a life where I am not a lawyer. Those hands had not yet held the books I would read while I sat in the sun and hadn’t yet picked the glowing sweet oranges of my first Arizona winter.
That those younger hands lovingly wrapped each piece and set it in a box for the future was an act of faith. Faith that Christmas would come and I would still be here, still honoring my family’s traditions, still remembering each treasured memory. Faith that our country would endure, that our institutions would endure, that our better angels would prevail. Now, as this year’s hands unwrap each piece, dust each pink-cheeked Santa, and adjust each reindeer, it feels a little like meditation and a little like desperation.
In January, these older (and perhaps wiser?) hands will lovingly wrap each piece, taking on faith that next year’s hands will be there to unwrap them, all the time remembering the German Christmas boutique or the Key West seaside trinket shop where they were bought; recalling the three-year-old hands that made them. These older hands will once again pack them away, reminded by this year, this terrible and wonderful year, that there is only this now - this present.
Now, let’s dive into the most recent developments in the Lori Vallow/Chad Daybell case. On December 15, 2020, Lori’s attorney, Mark Means, filed a motion to disqualify Special Prosecutor Rob Wood from the case, alleging that he tampered with witnesses. To be clear, I don’t have any inside knowledge of the case. I am basing my observations on my experience as a criminal attorney.
Why would Mark Means file such a motion, and did Rob Wood do anything wrong? Let’s look at what the motions allege. It appears that in October 2020, Rob Wood traveled to Arizona, where he met with Lori’s sister, Summer Shiflett, Alex Cox’s wife, Zulema Pastenes, and the attorney that represents them both, Garrett Smith. According to Wood, the meeting occurred at the Chandler, AZ police department. Prosecutors who meet with potential witnesses must be cautious and conduct the meeting so that they don’t become potential witnesses. Typically, law enforcement officers conduct interviews and investigations, but sometimes lawyers need to hear things directly from or communicate information directly to a witness. In that case, law enforcement members should be present so that they can later be called as witnesses to the interview, if necessary. Additionally, in these cases, both women had their attorney present. According to Rob Wood’s affidavit, he did not participate in the interviews with law enforcement.
One reason Rob Wood would have a meeting with a witness could be that he offered some form of immunity in return for their truthful testimony. I’ve participated in these sorts of meetings before, and I know they aren’t uncommon. Only Rob Wood and the others present in the meeting know for sure, but Means’ forceful motion to disqualify Wood makes me wonder. Rob Wood would not have recorded the interview because law enforcement members were there to capture and memorialize their interview. It was Summer and Zulema’s attorney who recorded their meetings with Wood, which suggests that he wanted to assure that whatever was discussed was set in stone. It’s the kind of care one takes when something important is on the line. This situation usually arises when an attorney approaches the prosecutor and indicates that their client has information useful to the prosecution. In this case, Wood indicated that Zulema’s attorney reached out to him.
Once that contact is made, a rather delicate dance begins. The defense attorney usually gives the prosecutor enough to prove the witness’s information is important and truthful. Then the meeting takes place. In this case, the information was interesting enough for Rob Wood to travel from Idaho to Arizona to discuss it. The prosecutor is there to determine whether the information the witness is offering is important enough to offer them some benefit in return. The prosecution could offer the witness partial or full immunity from future charges, a dismissal or reduction of current charges, or a lesser sentence in a pending case. As Wood reports in his response to Means’ motion, “The meetings I attended with Mr. Smith, Ms. Shiflett and Ms. Pastenas (sic) came about as a result of Ms. Pastenas (sic) reaching out to my office and law enforcement through her attorney, Mr. Smith.” It’s typical for the prosecutor to meet with the witness to explain that whether he can offer anything for her testimony will depend on its value to the case and her truthfulness. Law enforcement then takes the statement while the prosecutor is not present. Law enforcement reports their findings back to the prosecutor, who then evaluates the witness statements to determine if they warrant offering immunity.
The situation I’ve outlined is not witness tampering. It’s legal, permissible under the Rules of Professional Conduct, and it happens all the time. Wood’s meeting with Schifflette and Pastenes just occurred in October, so it’s not surprising that the recordings were just provided to the defense. Let’s assume that the recordings reveal some vital information and that Rob Wood has offered them immunity in return for their testimony. How does the defense challenge that action? Announcing to the world that two witnesses have been offered immunity in return for their testimony isn’t going to help because the public will know if Rob Wood offered them immunity, their testimony must be a potential bombshell. Mark Means must reason that attacking the prosecutor is preferable because if he could prove that the testimony was the product of coerced or tampered with evidence, a judge could exclude the evidence. I’ve said before that Mark Means’ tactics are odd, but he’s not stupid.
But now Means has another problem. He had to support his motion by submitting his proof to the judge along with the motion. That proof is either the recordings or transcripts of them. That’s evidence he does not want circulating to the media or the public, so he’s filed the motion to seal those pleadings.
The timing of Means’ questionable Tweets also makes me wonder. His Tweet “As I prepare the defense for Lori (vallow) Daybell... I am learning that persons like Melanie Gibbs and her boyfriend David Warwick appear to have been eagerly “involved” in more than they let on... if you know something... Say something!” and his “The defense lacks the resources of the prosecution (State of Idaho, Attorney General of Idaho, FBI, chandler police, Madison county sheriff department, Fremont county sheriff department, Rexburg police, etc) We need the persons of knowledge to come forward!” were both posted on October 21, 2020. Both could coincide with Means learning that Rob Wood had recently traveled to Arizona to meet with Zulema and Summer.
I don’t believe that what Rob Wood did was prosecutorial misconduct or witness tampering. He’s a smart and experienced career prosecutor who is well aware of the bounds of ethical practice. Remember, Lori and Chad’s current charges are only the tip of the iceberg, and their defense attorneys’ job is to toss everything at the wall in hopes that something will stick. When you can’t argue the facts or the law, you argue the procedure’s constitutional fairness and the process and preserve every argument, even the ones that appear ridiculous, for appeal.
I am thankful for all of you who have made writing this newsletter so interesting and gratifying. As we enter the 2020 holiday season, I wish you joy, peace, and a hopeful and fresh New Year. Please take care of yourselves and those you love, take time to remember those less fortunate and pray for those who have lost so much this year. Remember with gratitude all those who serve in the military or as first responders and all those on the medical front lines.
