Lori Still Incompetent, Chad's Hearing Sealed

Hello from sunny Los Angeles!

Thank you for all the inquiries and people who wondered why there was no newsletter last week. Lots of folks asked if I was okay. Rest assured, all is well in the Hellis household. Those who aren’t watching the lives with Lauren Matthias of Hidden True Crime (and why aren’t you watching?) may not know my husband had a very extensive lower back surgery about seven weeks ago. For those who are asking about him, he’s making slow and steady progress and improving each day. The first couple of weeks were very rough, and he needed a lot of help with everything. My 88-year-old mother lives with us, and her 94-year-old sister has been visiting with her for the past two weeks. Having both of them to manage is challenging, but when I hear them giggling like a couple of teenagers, it’s all worth it. My aunt has returned home now, and I’m excited to get away from the Arizona heat, spending a few days in LA with my adult daughter for her birthday.

So let’s spill some tea on the Daybell case. There have been some confusing filings in the past week or so. The most perplexing is the order to seal Chad’s August 30, 2021 hearing. To begin with, the state (prosecutor) filed a motion asking the court to find there is a conflict of interest with Chad’s lawyer, John Prior, continuing to represent him. When we first saw this document, we speculated that it had something to do with Mark Means (Lori’s lawyer) and his involvement with a YouTube creator to whom he gave confidential information. That is not the basis of this motion - this motion involves John Prior. The prosecutor has asked the judge to seal all the documents and close the hearing, so the only information available must be gleaned from the documents we have. The court’s order to seal the filings and the hearing is enlightening if we read between the lines a little. First, there is a motion asking the court to find there is conflict in Prior continuing to represent Chad. Second, someone has filed a motion to intervene in the case. In civil cases, motions to intervene are typical, but unlike civil cases, motions to intervene in criminal cases are rare. This isn’t just another example of a civil attorney trying to use civil remedies in criminal cases (as Mark Means has frequently done).

This excerpt comes from a case U.S. v. Jeffery Sikes 4:15CR3128:

“The Federal Rules of Criminal Procedure provide no path to intervention in a criminal matter by a third-party. Interventions in criminal matters “have been granted in limited circumstances where ‘a third party’s constitutional or other federal rights are implicated by the resolution of a particular motion, request, or other issue during the course of a criminal case.’” United States v. Collyard, case no. 12cr0058, 2013 WL 1346202 at *2 (D. Minn. April 3, 2013)(quoting United States v. Carmichael, 342 F. Supp. 2d 1070, 1072 (M.D. Ala. 2004)). For instance courts have occasionally allowed the press to intervene in criminal cases to assert the press’ First Amendment rights. See In re Associated Press, 162 F.3d 503, 506- 507 (7th Cir. 1998). Courts have also allowed intervention by third-parties seeking to prevent the wide dissemination of confidential or privileged information. United States v. RMI Co., 599 F.2d 1183 (3d Cir. 1979); United States v. Crawford, 735 F.2d 174 (5th Cir. 1984); 4:15-cr-03128-JMG-CRZ Doc # 48 Filed: 11/02/16 Page 2 of 5 - Page ID # 3 United States v. Martoma, 962 F. Supp. 2d 602, 605-06 (S.D.N.Y. 2013). “A third-party’s reasonable assertion of privilege with respect to documents to be produced in a criminal actions is sufficient grounds on which to grant the third-party’s motion to intervene and to consider the merits of that party’s application.” Martoma, 962 F. Supp. 2d at 605-06. 1 Middleton Electric asserts it has standing to intervene in a criminal case “if [it] has Constitutional standing to move for a protective order or oppose a protective order.” (Filing No. 31 at CM/ECF p. 2). This overstates the law as it currently stands. Middleton is not a third-party seeking to prevent the dissemination of confidential documents. Nor is Middleton Electric seeking to intervene to preserve a right bestowed upon it by the United States Constitution or other federal law.”

So, we can surmise a few things. The issue is whether John Prior has a conflict of interest. What could cause a conflict? Conflict comes in two flavors: one, a conflict between two clients (where the interests of two clients, past or present, conflict with each other). This happens when a lawyer has perhaps previously represented a client and now represents someone whose interests are opposite to the prior client. For example, let’s say a lawyer represents Jack in a business deal to purchase a piece of land to build a factory. The lawyer knows a lot about Jack’s financial situation and his business. Later, Jack’s wife, Jill, hires the lawyer in her divorce from Jack. The lawyer will have inside information about Jack’s business that the wife may not know, and the lawyer has a duty to keep that information confidential. He also has an obligation to use act in his current client, Jill’s, best interests. See the dilemma? The second type of conflict is between the interests of the client and the interest of the lawyer. This comes about when the attorney and the client have some business dealing that has gone sour, bringing their interests into conflict. What could that be? Perhaps the transaction that deeded Chad’s home to Prior? Someone may be contesting that transfer. If so, Prior’s financial interests would conflict with his client’s.

The court’s order says that the motion to intervene will be considered at the same time in the closed hearing. What motion to intervene? We haven’t seen that either. As the excerpt above suggests, motions to intervene are only permissible in very narrow circumstances. One of those circumstances is when the press objects to a motion to seal filings or close hearings. It seems likely that one of the press outlets has opposed the court closing the hearing.

If the judge seals documents, can they ever be unsealed? The answer is yes. Generally, once the trial is over, the documents can be unsealed. In some limited instances, documents are permanently sealed. Those documents usually have to do with juveniles and are things like adoption records. If the court does not automatically unseal documents, the press can request the unsealing.

Chad’s hearing was ordered to be conducted under seal, so we have no idea what happened in it today. Lori’s hearing occurred at 3 pm today, and she was not present. Interestingly, John Prior was included in that hearing but then dropped off the Zoom call about halfway through. The judge reported he had received two letters from the treatment agency that indicated that Lori needs more time to become “restored.” He said the letters were insufficient and that he needs a progress report. So the judge temporarily continued Lori’s commitment until September 8, 2021, at 1:30, when they hope to have the proper progress report. The court then signed off after the judge said he would continue with the attorneys offline. I’m assuming that’s for Chad’s hearing.

Chad also waived his speedy trial rights last week. This was no surprise. Defendants in Idaho must be tried within six months of their arraignment date if they are in custody. Judge Boyce set Chad’s hearing to begin in late November – the very outer edge of that six-month window. With the death penalty on the table, asking for a continuance made sense. Death penalty cases are extremely complex. Right now, he has one retained lawyer. Generally, a death penalty team comprises two lawyers, one or more investigators, and a mitigation specialist at a minimum. That team will need six months to a year to prepare. I would not expect his trial to happen until summer 2022 at the earliest. Absolutely, the wheels of justice turn slowly.

I expect we will see a motion to postpone the November trial, but I doubt that motion will happen before the October 5, 2021 hearing on the motion to change venue.

Rest assured, I’ll be on the case and bringing you updates and analysis when things happen. Cheers.