It's too Quiet!
But are they still dancing in the background?
August 30, 2020
Caution: this is a long post. If you’ve missed this Friday’s regular post, it’s because, during this lull in the Vallow/Daybell case, I’ve been trying to think of things that might interest readers. I thought perhaps you’d like to know what I think is going on during this time.
Although there seems to be little going on, this time is anything but slack for the people involved. Let’s look at what they might be doing.
Special Prosecutor Rob Wood, police and investigators. Everything that happens in the case is based on what Rob Wood does. Wood has been careful and methodical, and he has Lori and Chad right where he wants them. They are both in jail on at least a million-dollar bail. All their communication with anyone except their lawyers is monitored and recorded. Wood has the luxury of taking his time and building his case, piece by piece. Many keep asking why neither has been charged with murder, but a prosecutor can only charge what he can prove. Let’s look at what a prosecutor in Idaho must prove to bring a first-degree murder charge:
On or about or between a particular date (This is to prove the crime is within any possible statute of limitations).
In, (County), Idaho (This is to prove the crime occurred in the state and county and so the judge in that state/county has jurisdiction).
Chad Daybell/Lori Vallow (this is to prove that they are legal entities (people or corporations that are subject to the criminal law).
Killed a human being (includes a human embryo or fetus)
Without legal justification (like self-defense)
With (Mental State):
Malice aforethought OR (Malice may be express or implied. Malice is express when there is manifested a deliberate intention to kill a human being. Malice is implied when the killing resulted from an intentional act, OR the killing is the natural consequence of an act that is dangerous to human life, AND the act was performed with knowledge of the danger and with a conscious disregard for human life. The term “aforethought” does not mean deliberation or a lapse of time, only that the malice must precede the act.
By the intentional application of torture OR (Torture is the intentional infliction of extreme and prolonged pain or brutality with the intent to cause suffering).
While perpetrating or attempting to perpetrate the following:
Aggravated battery on a child under age 12
Arson
Rape
Robbery
Burglary
Kidnapping
Mayhem(terrorism)
The outline above gives some idea of the complexity facing Rob Wood. Items 1 and 2 appear easy to prove. We know a range of dates that the crimes happened and that they happened in Fremont or Madison Counties in the State of Idaho. Item 3 is where the questions start. Let’s take them one at a time.
3. Rob Wood must prove that Chad or Lori CAUSED the death of the children. In Idaho, that can come in a couple of ways. First, they could actually have committed the killing. Second, they could have aided or abetted in its commission, or not being present, could have advised and encouraged its commission, or by fraud, contrivance or force caused intoxication to someone to cause them to commit the crime. You can already see how complex and how fact-driven the case will become. Wood is collecting information to prove how the children died.
The autopsies of the children, Tammy, Alex Cox, and Joseph Ryan, are all critical. How were they killed? The toxicology reports are essential. There are standard substances the toxicologist will test for, such as alcohol; analgesics (acetaminophen, ibuprofen, tramadol, and aspirin); antidepressants (imipramine, amitriptyline, and SSRI like Prozac and Zoloft); antihistamines (doxylamine, chlorpheniramine, diphenhydramine); antipsychotics (haloperidol and risperidone); benzodiazepines (valium, Xanax, zolpidem zopiclone, zaleplon); cannabis; cardiovascular drugs (diltiazem, disopyramide, and propranolol); cocaine; narcotics (codeine, methadone, pethidine, morphine, hydrocodone, oxycodone, fentanyl); stimulants (amphetamine, methamphetamine, MDMA/ecstasy, pseudoephedrine, fenfluramine, phentermine, caffeine). Toxicologists will also test for less common substances such as anticonvulsants (lamotrigine, valproate, phenytoin); barbiturates (phenobarbital, butalbital); designer drugs, (synthetic cathinone and cannabinoids); Digoxin; gamma-hydroxybutyrate; LSD; and environmental toxins such as carbon monoxide, cyanide, pesticides and herbicides, and heavy metals. There is no single test or a handful of tests that can identify these substances. They often must be tested for individually in a painstaking process.
While Alex Cox’s autopsy report indicates that he died of natural causes, Arizona authorities report that his death is still “under investigation,” likely because toxicology tests are still being run. Likewise, for Tammy Daybell. I suspect, like Alex, her initial report is done, but the toxicology testing could take many more months. Similarly, the initial testing for basic drugs has been completed for Joseph Ryan, but not the more sophisticated and time-consuming tests. Joe Ryan’s remains were cremated at Lori Vallow’s direction, but samples were kept and tested beginning in July 2020.
Rob Wood is also collecting information that would prove Chad and/or Lori aided, abetted, or advised or encouraged someone else to commit the murders, presumably Alex Cox. Since Cox is dead, investigators are combing through thousands of hours of text messages and cell phone pings to create a map and a timeline of each of their movements. It’s been reported that Lori and Chad used burner phones, making the process even more complicated.
4. This one seems clear since humans are dead.
5. Without legal justification. The term is something lawyers call a “term of art,” which means it has a specific legal and fairly universal definition. It covers those defenses that excuse the act. The excuse can be that the defendant was acting in self-defense or defending someone else against immediate death or serious bodily harm. Legal justification also covers mental disease or defect, in states where, unlike Idaho, the defense is permissible. Alibi is usually also considered a legal justification. In most states, the defense must notify the state of its intent to use any of these legal justifications. As you may recall, Rob Wood has asked twice for the defense attorneys to notify him if they intend to raise mental disease or defect in their cases. Mark Means has answered that the request violates Lori’s constitutional rights, but has not explicitly indicated how. Idaho Code 18-207 says, “(1) Mental condition shall not be a defense to any charge of criminal conduct.” The second paragraph of that statute deals with sentencing after conviction. Although mental disease or defect can’t be used as a defense, it can be used to mitigate a sentence once the defendant is convicted.
6. With Malice aforethought. This term is also a term of art. It generally means a deliberate intention, either to commit the killing or to commit an act that results in the killing. The facts surrounding each defendant and each victim can be very different. You can bet Rob Wood is filling files, either virtual or actual, at an astounding rate.
So far, we’ve only talked about what the state must do; turning to the defense, they must do all of that, in reverse. Some of you may remember a great quote from Ginger Rogers, who said of dancing with Fred Astaire, “I did everything he did, but backward and in high heels.” Sometimes that’s how it feels to be a defense attorney.
Lori Vallow and Chad Daybell and their attorneys, Mark Means and John Prior. While Lori and Chad cool their heels in custody, their lawyers are dancing as fast they can. There are some questions that they have to ask.
Can I attack the process that underlies the charges? If a defense attorney can attack the process, they never have to put the facts before a jury. I know many people think of this as “loophole” justice, and it is, but hear me out when I say that process is essential. As citizens, we want a fair and appropriate process for ourselves and our loved ones. A process that requires that the police respect our privacy, and get warrants to search our property and that they have probable cause before they can arrest us. A process that allows up to remain silent and have legal representation. One that requires that we receive notice of the charges against us, that we are presented with the evidence, are able to call witnesses in our defense and have the chance to confront and question the witnesses against us; that we are entitled to know if the state has evidence that might prove our innocence and the right to have our case presented to a jury of our peers. Because we want those rights, if we are ever arrested, we must make sure they are applied in EVERY case. It’s the defense attorney’s responsibility to assure that every client is afforded their constitutional rights. Sometimes that means that cases get thrown out because police didn’t follow proper procedure, or courts didn’t assure a fair process. Means and Prior are combing though the case, looking for violations – places where the police or the process were wrong. That investigation could result in motions to suppress evidence that was obtained illegally. Sometimes, if a judge throws out the evidence because of police error or misconduct, it results in a dismissal of the charges. Sometimes it also means law enforcement has to go back and reinvestigate, to see if they can find evidence that is unrelated to the illegal search or seizure. Means and Prior will be looking through every search to assure it was done legally.
Can I make an argument for a justification defense? In most states, that includes self-defense and mental disease or defect. As I’ve outlined in a few other posts, Idaho does not allow for a mental disease or defect defense. It does allow the defense to put on evidence that a mental disease or defect made it impossible for the defendant to manifest the malice aforethought necessary. There is no indication in any of the deaths except possibly Charles Vallow’s, that anyone was acting in self-defense. Alex Cox claimed he was acting in self-defense when he shot Charles. Still, the Arizona authorities have said they intend to charge Lori with conspiracy to commit murder, which suggests that they didn’t buy the self-defense excuse.
How do I raise reasonable doubt at trial? This analysis is essential, not only for trial but also for plea negotiations. If I can poke holes in the evidence, I may be able to convince the prosecutor that he doesn’t have enough evidence to convict my client or get him to plead the case to a lower and more provable charge. For example, if Means can poke holes in the conspiracy to commit murder facts, he may be able to limit Lori’s conviction to the current charges of destroying evidence. As the defense attorney reviews each piece of evidence, he will look for chances to call it into question. Did the laboratory that tested the sample use standard lab processes and procedures? Did they protect the chain of custody, or could someone have tampered with the sample? Did the FBI even look for that silly dead raccoon? If they didn’t, can I say, “you didn’t look for the raccoon, so how do you know Chad’s story about killing the raccoon isn’t true?”
Can my client get a fair jury in this jurisdiction? The defense attorneys are gathering information to make a case for moving the trial to a different venue. The argument for moving the trial requires data. That’s why people in Rexburg are reporting to social media that canvassers are surveying attitudes about and awareness of the case.
What objections must I make to protect my client’s case on appeal? Trial attorneys often work closely with appeals attorneys to assure they are preserving any grounds for appeal. Even in a case with overwhelming evidence, there may be issues for appeal. Those can range from simple rulings by the court about what evidence is admitted, to broader questions, like when does testimony become vouching? The issues on appeal are often complicated and esoteric questions of law and its application to the facts of the case.
What jury instructions are best for my client? At trial, both attorneys will be required to submit their requested jury instructions to the judge. The judge will decide which of those standard instructions will be given to the jury, and whether the instructions will be given to them orally or in writing, and if given orally, whether the jury will be able to review a recording of the instructions.
What post-trial issues must I raise? States vary on the issues that can be raised post-trial, but attorneys must think about which, if any, are appropriate to their case.
If my client is convicted, how do I mitigate the sentence he or she might receive? In murder and other complex felony cases, sentencing is a crucial phase. If the state seeks the death penalty, there will be an entire penalty phase of the case and an entire team of mitigation specialists. Even non-death penalty cases need careful preparation for sentencing. Nowhere is that more important than in states like Idaho, that still have determinate sentences where judges still have broad discretion. The information presented at sentencing can make the difference between a year before being eligible for parole and five years.
So you see, while it may seem there isn’t much going on, Fred and Ginger are dancing like crazy.
