Let's Catch Up!
New Motions, Wristbands, and a Phantom Live Video
Happy Halloween!
October 28, 2022
Hello Friends!
So much to talk about! Let me get the housekeeping and personal stuff out of the way first.
My YouTube Channel, Children of Darkness and Light, premiered on October 14, 2022. The link to my channel is
https://www.youtube.com/channel/UC6DDIwubCEwP2U0hIS6NLKg. Your response had been nothing short of mind-boggling. We had nearly 24,000 views in the first two weeks, and almost 4000 of you subscribed. Lots of you also caught my appearance on Crime Talk with Scott Reisch. I love being able to dish with another lawyer, and since I retired, I have fewer opportunities. If you missed it, you can catch that here: https://www.youtube.com/watch?v=t-QzPWbOy3M&t=166s.
Thanks, too, to all of you who have made suggestions about how to improve the channel. I’m learning so many new things, and your feedback is invaluable.
Catch me on Friday, live at 6 pm Pacific. We will be talking about the new filings and divorce vs. marital privilege.
Now for a really big mea culpa (that’s a nice, Latin way of saying, oops, I screwed up). I’ve been working on a video introduction to the case. I was using it to teach myself how to record, edit and upload videos. I’m telling you, learning this new tech is HARD. It seems I thought I was uploading it to YouTube for a final edit when instead, I uploaded it, and it went LIVE! It was a rough, unedited cut and never should have seen the light of day. I’ve taken it down and enlisted the help of my daughter to get it right before I repost it. I’m sorry if you got a middle-of-the-night alert and were subjected to its awfulness. I now know how it feels to have to call your kid for help programming the VCR.
Justice for Tylee and JJ wristbands are still available. If you’ve sent me a request to the new address, I will have them in the mail this week. If you would like a free wristband, please send me a self-addressed stamped envelope to:
Lori Hellis
104 E. Fairview Ave. #381
Meridian, ID 93642
If you have already sent me an envelope, those letters should go out early next week.
Now, on to the case.
Yesterday, some new filings hit the court database. The filings and proceedings have been sealed, so we can only speculate about their meaning. In this case, it does appear the court properly followed the law and appropriately sealed the documents and hearings because they have to do with Lori’s mental health. The court held a status conference today. The prosecution also filed a motion to compel. Motions to compel are usually about getting some sort of discovery materials. The prosecution filed a Request for Records on Mental Health on October 13, 2022. They are likely trying to get the defense to provide them with Lori’s records so their own expert can review them. The prosecution has also filed something called a Motion to Determine Conflict. That has also been sealed at the prosecution’s request. One of my attorney contacts in Rexburg suggested this may be a conflict over who will complete Lori’s evaluation.
Following the October 13, 2022, hearing, three issues remain undecided: my motions to unseal documents and hearings, John Prior’s motions to continue, and sever. I’ve been told the judge was on vacation last week, so that may be the reason for the delay.
The judge issued an order in Lori’s case vacating the January 9, 2023, trial date. He has issued a temporary stay in her case because her attorneys filed an Ex Parte Affidavit with the court on September 30, 2022, saying they had concerns about her fitness to proceed.
Ex parte is Latin. Historically, lawyers and doctors tossed Latin into correspondence to prove they were smarter than everyone else. While the practice has pretty much faded from use, there are a few terms lawyers still use as a sort of professional shorthand. Terms like per se, pro hac vice, ex parte, en camera, pro se, pro per, and duces tecum have specific legal meanings. Ex parte means ‘one party.’ Generally, it is improper for an attorney to have contact with the judge without the other side present. Ex parte motions are the exception. Because the issue of a person’s mental health is so sensitive, the lawyers file an affidavit with the judge, outlining their concerns for their client’s competency. The judge reviews the motion and determines if the information is appropriate to share with the other side.
In this case, the judge held a brief hearing and ordered Lori’s Ex Parte Affidavit be shared with the prosecution. That hearing was appropriately sealed. Then, the judge scheduled a later hearing to discuss the matter once the prosecution had time to read the affidavit. That hearing was also appropriately sealed. After that second hearing, the judge issued an order temporarily staying Lori’s case, pending a competency evaluation. As far as we know, that evaluation is still underway. If the process proceeds as it did last time, the judge and the lawyers will be given the results of the assessment, and the prosecution will decide whether to challenge the conclusions. Just as last time, they likely won’t challenge the recommendations. If the evaluators recommend that Lori return to the state hospital for further restorative treatment, the judge will issue another commitment order, and she will be transported to the hospital for treatment.
I’ve received many questions about whether Lori could escape prosecution because of what might be a revolving door to the state hospital. While there is a provision in the law that permits the state to dismiss a case when it appears the defendant won’t regain competency in a reasonable time, that dismissal is ‘without prejudice,’ meaning it can be refiled at any time within the Idaho statute of limitations. There is no statute of limitations on the prosecution of murder. The statute of limitations on the non-murder felonies is five years. But before you panic, that statute of limitations only applies to cases not filed within five years of the date of the crime. Lori has pending charges, so the statute of limitations isn’t a problem. The statute does permit the court to dismiss a charge if the judge finds that the defendant has been committed for so long it’s unjust to resume criminal proceedings. Here is the text of the statute (18-212)
(4)If at the end of the initial ninety (90) days, the court determines that the defendant is unfit and there is not a substantial probability the defendant will be fit to proceed within the foreseeable future or if the defendant is not fit to proceed after the expiration of the additional one hundred eighty (180) days, involuntary commitment proceedings shall be instituted pursuant to either section 66-329 or 66-406, Idaho Code, in the court in which the criminal charge is pending.
(5) In its review of commitments pursuant to section 66-337, Idaho Code, the department of health and welfare shall determine whether the defendant is fit to proceed with trial. The department of health and welfare shall review its commitments pursuant to chapter 4, title 66, Idaho Code, and may recommend that the defendant is fit to proceed with trial. If the district court which committed the defendant pursuant to section 66-406, Idaho Code, agrees with the department’s recommendation and finds the conditions which justified the order pursuant to section 66-406, Idaho Code, do not continue to exist, criminal proceedings may resume. If the defendant is fit to proceed, the court in which the criminal charge is pending shall be notified, and the criminal proceedings may resume. If, however, the court is of the view that so much time has elapsed, excluding any time spent free from custody by reason of the escape of the defendant, since the commitment of the defendant that it would be unjust to resume the criminal proceeding, the court may dismiss the charge.
Where a defendant’s trial has been suspended because of their lack of competence, the Supreme Court has found there is no violation of the defendant’s right to a speedy trial. I don’t expect Lori’s upcoming stint in the hospital to be as long as the last one. There were initial evaluations the first time and a period where Lori refused medication. The judge has ordered that she take medication, and that order extends through the trial. If Lori doesn’t comply, she can be forcibly medicated.
The next question is, how does Lori’s incompetence affect Chad’s trial? That’s a bit thornier, but the answer may be not at all. Chad’s lawyer has filed a motion to sever the cases. But, you say, hasn’t the judge already decided that? Well, yes, but that decision isn’t final.
What?! How can we ever have finality if a judge’s decision isn’t final? Well, most judicial decisions are final, but some can be raised over and over again. There are two reasons why the issue of severing the cases can be raised again. First, the judge applied the wrong law to the first determination. Both John Prior and the judge applied the law as it applies to the joinder of charges, not the joinder of defendants. The supreme court has ruled that if the judge applies the wrong law to their decision, it’s an automatic do-over. Second, the issue of severing the cases can be raised any time there has been a change in the circumstances of the case. So, Prior gets a do-over on the portion of the case that occurred before the court’s previous decision and can raise issues that have developed since the judge’s earlier ruling. John Prior’s first filing was an anemic motion without much support. His present motion is a robust thirty-one-page recounting of all the reasons the cases should be severed. I outlined some of the issues in my last newsletter, but here is a review.
The biggest issue in deciding whether to sever the cases is prejudice. First, Prior points out the thing that we can’t stress enough. Death penalty cases are different. Because the ultimate punishment is the death of the defendant, every step of the criminal justice process must be done with a heightened need for reliability and to a higher degree of certainty. In other words, there is no margin for error when a life is at stake. Each defendant must be able to put on a complete and full-throated defense. Additionally, when a life is at stake, the law requires that if a defendant is found guilty of the crime, they receive precise and individualized sentencing.
Both requirements are compromised in a joint trial, and John Prior makes good arguments for Chad Daybell being prejudiced by being tried with Lori Vallow. His arguments are detailed in his Motion to Sever. You can read the complete document at:
https://coi.isc.idaho.gov/?fbclid=IwAR2DzfEzhtV_AxR04O5HXCI_aMkgZPe4jXk3RfoKqdJ2BELrCIhaaU_7dok
Many of the arguments in the motion are technical and have to do with applying the rules of evidence. It boils down to this, though; will one codefendant be unduly prejudiced by either the admission or the exclusion of certain evidence? If Chad’s defense is that he was a hapless shill for Lori and Alex, who had bad intentions that Chad didn’t know about, then he needs to bring in Lori and Alex’s behavior in and around Charles Vallow’s death – particularly Alex’s interview with Chandler Police - to show they were heartless murderers with ulterior motives. And, yes, I know that sounds absurd to anyone following the case, but defense attorneys have to work with the evidence they have, even if it seems improbable. A problem arises because if Chad brings in that evidence, sometimes called reverse 404(b) evidence, Lori’s rights will be violated. Chad can bring in the testimonial evidence that Lori and Alex plotted to kill Charles over a hearsay objection because there is an exception to the hearsay rules for prior statements of someone who has died. But, because Lori has a Sixth Amendment right to confront the witnesses against her, and Alex is dead, the evidence can’t come in against her. Catch-22, right? And it’s that circular problem that proves the defendants must be tried separately. While Prior makes other points about other issues, this is the one that gets to the heart of why we sever cases. Prior points out similar problems with holding a joint penalty phase, where the jury must decide between death and life without parole.
I think John Prior makes an excellent argument for severance at this point in the proceedings, and I agree. We must take him at his word and assume that Prior’s primary defense will be to blame the crimes on Lori and Alex. Not only has he telegraphed it repeatedly in the past, but he’s now laid it out in detail in his motion.
Inarguably, if the judge severs the trial, the expense to the state and county double. However, if the court fails to sever the cases, it’s highly likely the case will come back on appeal and require a new trial. If the court refuses to sever the cases, the state and county will ultimately pay for a joint trial, then bear the expense of several years of appeals, followed by two separate retrials, increasing the cost exponentially.
Once again, joinder is about efficiency; severance is about fairness. The prosecutors want a joint trial because it’s easier, more cost-effective, and more efficient. Here are some of the reasons:
Witnesses are only called once. They avoid the possibility that the witnesses’ first experience will cause them to rethink their testimony in the second.
The prosecution only has to pay once for out-of-town witnesses’ travel and accommodations.
Expert witnesses need only be paid once for their time, travel, and accommodation.
Evidence is only ruled upon once. Both sides can be sure of the same evidentiary rulings on the same evidence as it applies to each defendant.
Defendants are only transported and housed in the host county once. If either defendant is called in the other’s case, it may require additional transportation and housing.
The prosecutors only have to prepare their case once.
The prosecutors and their staff, the judge and his staff, and law enforcement only have to be away from their other duties for three months instead of six.
The receiving county only has to house one high-profile trial instead of two.
Let’s be clear, though – none of those things are more critical than defendants, who are on trial for their lives, receiving a fair trial.
This leads me to the other undecided motion – John Prior’s motion to continue. While the judge has already vacated the January 9, 2023 trial as to Lori, he did not vacate Chad’s trial and did not yet rule on Prior’s motion to continue Chad’s portion of the trial. The judge said he wanted time to consult with Ada County to find out how difficult it would be to reschedule the trial date. The judge refused to apply the stay in Lori Vallow’s case to Chad Daybell’s case. That leaves many options open. Judge Boyce could grant the motion to continue and the motion to sever and set a trial date for Chad while leaving Lori’s trial stayed while she is once again restored to competency. He could also grant the motion and reset a joint trial later in 2023. It’s also possible, but I think unlikely, that he could leave Chad’s trial on for January 9, 2023.
Catch me on Friday, live at 6 pm Pacific. We will be talking about the new filings and divorce vs. marital privilege.
