Madam Lori answers all
Hello Friends! Questions, questions – y'all have questions! So Madame Lori is about to flip a few Tarot cards and read a few tea leaves. Be warned; this is a long newsletter!
Why did the prosecutor dismiss the previous destruction of evidence cases this morning? When Lori and Chad were charged with these crimes, the children's bodies had just been found. The prosecutor filed these charges because they were the best charges that he could reasonably bring at the time. The prosecutor has a legal and ethical obligation only to bring charges for crimes they can prove at the time of the charge, even if he is sure that further investigation will turn up more serious charges. These charges, just like the earlier charges against Lori of child abandonment in Madison County, were placeholders that kept both Chad and Lori in jail while the prosecutor built his case. I think I said in an earlier newsletter that I thought Wood would either consolidate the cases or dismiss the earlier charges. Could Wood prove the destruction of the evidence charges? Sure. But why take the focus off the more serious charges, or give the jury something less to resort to if they can't reach an agreement? Incidentally, the charges were dismissed "without prejudice," which means they could be refiled at any time within the statute of limitations.
Why was there a Motion for Pro Hac Vice for Chad? Why not for Lori? Remember when Rob Wood asked the court to allow Rachel Smith on the destruction of evidence case? The judge admitted her on that case. The new motion was to permit her to work on the murder charges. That's particularly important since Wood asked to dismiss that earlier case. Wood did not file the same motion in Lori's case because of the stay.
Why would Mark Means give discovery information to a YouTuber who has made it clear that she believes his client is guilty? Good question. I think Mark Means is way over his head. I think he's over his head when it comes to his knowledge of criminal law, but I also think he's way over his head in terms of resources. If you have someone offer to give you free help in that situation, you jump at it. If they ask for favors in return, you give them.
What is the consequence to Mark Means if it's proven that he shared confidential information with a YouTube creator? It is possible Means could be suspended from practice or even disbarred. There is nothing in the ethical rules that would permit Means to share information with someone his office did not employ. Lawyers are required to supervise their employees. If an employee violates an ethical rule, it's the lawyer who receives the consequence. Here are the applicable ethics rules in Idaho.
*RULE 1.6: CONFIDENTIALITY OF INFORMATION (a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a crime, including disclosure of the intention to commit a crime; (2) to prevent reasonably certain death or substantial bodily harm; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime in furtherance of which the client has used the lawyer's services; (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of a client; (6) to comply with other law or a court order; or (7) to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
RULE 3.6: TRIAL PUBLICITY (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
Commentary to Rule 3.6: There are, on the other hand, certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate to: (1) The character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness; (2) In a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement; (3) The performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented; (4) Any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; (5) Information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial; or (6) The fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.
What might the consequences be to the case of the association between Means and the YouTube creator? There is an excellent reason for the confidentiality and publicity rules. That reason is that the defendant is entitled to a fair and unbiased trial before a jury of their peers. Widespread publicity can cause potential jurors to form preconceived opinions about the case and make it more difficult to find an impartial jury. The pretrial publicity CANNOT force a mistrial. The judge can declare a mistrial only if there is some misconduct after the jury is seated. Likewise, an appeal for ineffective assistance of counsel is nearly impossible. The standard for overturning a conviction because of ineffective counsel is very hard to meet. The defendant has to prove that the outcome of the case would have been different but for their lawyer's action or inaction. This case has some similarities and some differences to the Jodi Arias case. In the Arias case, there was a gag order. There is no gag order in this case. However, a defense attorney shouldn't need a gag order to know it's wrong to share confidential information with a YouTube creator. In the Arias case, the prosecutor, Juan Martinez, agreed to surrender his law license rather than have a protracted fight over his disbarment. He was accused of several things. He was accused of having leaked the identity of a juror to a blogger with whom he had a sexual relationship and then lying to investigators about it. He was also accused of sexually harassing female employees.
Is the Sharie Dowdle recording admissible? The recording of Sharie Dowdle may not be admissible as evidence. When Sharie recorded herself talking to Melanie Gibb, Sharie was in Massachusetts. In that state, it's illegal to record someone unless they are told they are being recorded. It's true; releasing the recording on social media may get it to people who might be on the jury. If the recording is ruled inadmissible, the jury would never hear it. BUT, it's hard to unring that bell for a jury pool that may have already heard it on social media.
How would this case have been prosecuted if the children's bodies had not been found? Again, good question! It's a long-held idea that you can't prosecute a murder without a body, but there are exceptions. It's more difficult, but it can be done. For instance, I know of a case where a husband killed his wife, then transported her body in a horse trailer to the river and dumped her body. A couple of weeks later, fishermen reported seeing a body among some tree snags along the riverbank. A bad storm moved in later that day, accompanied by drenching rain that caused the river to run high and fast. Search crews were delayed by the weather and could not locate the body when they could get on the river. The body was never found, and it's assumed it washed out to sea. Game over, right? No, not so fast. The forensic folks could find enough blood in the horse trailer to successfully argue that that amount of blood loss was inconsistent with life, and so the victim must be dead. The husband was convicted and sentenced to life without parole.
Are the rumors of Meth trafficking true? This rumor has swirled about on and off for the better part of two years. It recently surfaced again on social media. No, to the best of my knowledge, it's not true. There is no evidence that any of the people involved were using or dealing illegal substances. This rumor came about when someone hacked Kay Woodcock and sent out an email from her address alleging that Lori and Alex were trafficking drugs.
Why is so much evidence being released before trial? To our friends in other countries, our way of doing things might seem strange. Our constitution is rooted in the belief that government and its agencies (such as law enforcement) should not operate in secret, that government should operate in broad daylight and full sight of the public. While there are exceptions to this rule, such as grand jury proceedings and activities that affect national security, as a rule, our system favors disclosure. As U.S. Supreme Court Justice Brandeis once said, "sunlight is the best disinfectant." Those ideas are codified in the Freedom of Information Act (FOIA) at the federal level. Each state also has its version of the law. Many states, Idaho included exempt law enforcement investigations. The records that were obtained from Chandler police were requested under the Arizona FOIA. Under AZ law, unless there is a specific law that makes a record confidential or an argument that it's in the best interest of the state that it is not released, it should be released. There is no exemption for law enforcement investigations, although some case law suggests that keeping investigatory records confidential is in the state's best interest. Why all the redactions? I suspect that most of the redactions were made based on statutes that require some identifying information listed in police reports to be kept confidential, and some may be in the state's best interest so that the case isn't compromised.
What is the burden of proof in a motion for change of venue? The burden of proof is by a preponderance of the evidence (often described as 51%. Also, the decision to permit a change of venue is discretionary with the court, meaning it's the trial court's decision. The appeals court will only overturn an order to change venue only if it can be shown that the trial level judge abused her discretion.
When a trial judge finds a reasonable likelihood that qualitative or quantitative elements of pretrial publicity have affected prospective jurors' impartiality, then the balance falls in favor of assuring a fair trial. Hall, 111 Idaho 830, 727 P.2d 1258. It is important that the trial courts take "strong measures to ensure that the balance is never weighed against the accused." Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507. 1522 (1966). There are a number of factors to consider in determining whether a reasonable likelihood that pretrial publicity adversely affected juror impartiality existed, including: 1) the existence of affidavits indicating prejudice or an absence of prejudice in the community where the trial took place, 2) the testimony of the jurors at jury selection regarding whether they had formed an opinion based upon pretrial publicity, 3) whether the defendant challenged for cause any of the jurors finally selected, 4) the amount of time elapsed between the pretrial publicity and the trial, and 5) the nature and content of the pretrial publicity. State v. Needs, 99 Idaho 883, 890, 591 P.2d 130, 137 (1979). (State v. Funkhouser, unpublished opinion 800, 2013).
When does a duty arise for an ordinary citizen to report a crime? Interesting question. In the U.S., there is no affirmative obligation for a citizen to report a crime. There is an obligation for a citizen to abstain from criminal behavior. As long as the witness does nothing to further or cover up a crime, there is no criminal liability. There are some specialized obligations that arise because of a person's status or occupation. For example, some laws require that doctors, teachers, and even lawyers report the possible abuse of children and the elderly. However, what is legally required is a very different question from what is ethical.
What's an accessory after the fact? An accessory after the fact is the same as someone who aids and abets a crime. The term is somewhat outdated, and generally, criminal statutes talk about someone who aids and abets. However, aid and abet has a somewhat broader definition since it can occur both before and after a crime.
Why is there still such trouble with discovery? What are the prosecution's obligations, and when do they kick in? In general, discovery is a much more straightforward and uncontested practice in criminal cases than in civil matters. It seems that Mark Means has carried his attitude toward discovery from civil work into this criminal case. Usually, a simple telephone call will suffice to get discovery materials from the prosecution. The prosecution has an obligation to provide discovery as soon as possible after the case is filed and has an ongoing obligation to send discovery to the defense as it comes in.
Will John Prior file to sever the defendant's cases? Do both parties need to be competent before the judge can sever the cases? I think it's likely that Prior will ask the court to sever the cases. For all practical purposes, they are already severed because Chad is set for trial, and Lori is not. That will change if Lori is restored to competence before Chad's trial or if the trials are pushed out because the death penalty notice is filed. I believe the judge can sever the trials while Lori is still considered incompetent.
Will the state ask for the death penalty, and why? Yes, I have said I believe the prosecution will ask for the death penalty. The crimes were particularly heinous – one victim was seven years old; the other was 16, and her body was dismembered and burned. The motive was, at least in part, money. The deadline is August 8, 2021. The required notice is not just a single sentence saying they intend to seek the death penalty. It's a complex document that requires the prosecution to outline the factors that support their intention and how they intend to prove each. It makes sense that Wood might wait until the last minute to drop the notice. I am sure he has already notified the defense counsel of his intention. The notice may contain information that has not previously been released, so it's no surprise that Wood will wait as long as possible to release it. One of the reasons I believe they will ask for the death penalty has to do with the way the Idaho law is written. In Idaho, the only way the prosecution can get a sentence of true life – life without the possibility of parole – is to ask for the death penalty. Then the prosecutor can agree to a plea bargain for true life, or if there is a trial, and the penalty phase jury finds there are mitigating circumstances that make the death penalty inappropriate, they can recommend true life. If the state does not seek the death penalty, the sentence for first-degree murder is life in prison with a minimum of ten years before the inmate can ask for parole. It's hard to imagine Rob Wood (or anyone else for that matter) would see that as an adequate sentence.
Please explain concurrent vs. consecutive sentencing. Okay, this one is complicated. Let's break this down a bit further. States have either determinate or indeterminate sentencing schemes. A determinate sentencing rubric means that there are specific sentences for crimes, and the judge can't deviate from those sentences. A judge has no discretion, especially over the more serious or violent crimes. Determinate sentences also usually don't permit inmates to get time off their sentence for good behavior or to participate in educational or treatment programs or any sort of activity that would take time off their sentence. Oregon's sentencing structure under their Ballot Measure 11 is a good example. Indeterminate sentencing, judges have no discretion to reduce the sentence and must impose the mandatory time. The determinate sentencing model became popular in the 1990s during a period where victim's rights groups lobbied for tougher sentences.
Next, there are states that still have indeterminate sentencing. In those states, a sentence might be given as a range of years in prison and years before the inmate can ask for parole. Let's say Robbery carries a sentence of 5-20 years with a minimum of three years before parole can be requested. The judge would have the discretion to sentence the 17-year-old (charged as an adult) who has never been in trouble before and drove the getaway car, to five years with parole after three, while the ringleader who held the gun on the clerk and who has a long criminal history might get 15 years with a minimum of ten to serve before he can ask for parole.
Idaho has a hybrid sentencing scheme that is primarily indeterminate. The sentences for most crimes are indeterminate, but a few, more serious crimes require a fixed minimum of years. In Idaho, judges have a lot of discretion.
Arizona, on the other hand, has determinate sentencing. That means that the legislature sets the sentence for a particular crime, and everyone is sentenced the same. In our robbery scenario, both defendants would get exactly the same determinate sentence. Probably something around ten years. The judge does not have any discretion. This means the only way to change the potential sentence is to change the charge. In states with determinate sentencing, the discretion really passes out of the judge's hands and into the prosecutor's. It's the prosecutor who can negotiate with the defense to make the sentence fit the circumstances. In our robbery example, the DA would likely reduce the charge for the driver to a lesser crime in order to achieve the intended sentence. Determinate sentencing also means the outcomes for our two defendants could be very different. Say our driver decides to take his case to trial and is convicted of Robbery. The judge must impose the mandatory sentence. But say our trigger man's lawyer negotiates her client out of the offenses that carry the mandatory sentence and into an offense where probation is an option. It is possible for the driver to be sentenced to the 10-year mandatory and the trigger man to get probation.
Okay, Madame Lori, but what does this have to do with consecutive vs. concurrent sentences? Judges in both sentencing schemes have the discretion to make sentences concurrent (running at the same time) or consecutive (one after another). If a judge in an indeterminate sentencing state feels that the defendant who has been convicted of multiple offenses is getting off too easy, the judge can make the sentences consecutive. If, on the other hand, a judge in a state with determinate sentencing feels the defendant deserves a break, even though the judge can't reduce the sentence, she can run them concurrently.
I hope that explanation makes sense. Criminal sentencing is one of the most complicated and nuanced parts of criminal law. Lawyers often take weeklong seminars to learn and apply the rules.
Thank you, Mary Jo, Pat, Denise, Joy, Angela, Bev, and Roberta and Linda, for the questions.
Don't forget to catch Lauren and me tomorrow night for another TGIF chat at 7 PM PDT.
