Motion to Sever andMotion to Dismiss

Hello Friends – there is so much going on right now my head is swimming!

There are developments in the case and in my life as I follow the case. First, we’ve found a house in Meridian, Idaho, just outside Boise. Our home in Mesa will be on the market shortly, and I’m packing and trying to get organized. Everyone in my household is on the mend, making things much easier. While I know the move will put me closer to this important story, the process is overwhelming at times.

There have been some recent developments in the case that warrant discussion. Unfortunately, the past week has been a blur for me, so forgive me that I’m just catching up.

There were two hearings in the past week, first, the motion to sever the cases and, next, the motion to dismiss the indictment. In both hearings, the court heard or received in writing information that was not available to the public, making a precise analysis impossible. So instead, we’re forced to speculate and read the tea leaves. I’ll do my best.

Let’s talk about the Motion to sever the case. The judge denied the motion to sever the cases. Again, I can’t be sure what was argued. Still, it appeared Prior’s argument boiled down to, “I can’t prepare because I don’t know whether Lori’s incompetence will keep her from appearing at the trial in January 2023.”

As discussed in my last newsletter, the basis for severing a trial is proof that one codefendant will be prejudiced by information brought in against the other. For example, a hearsay statement of a defendant is admissible in court against the defendant that made the statement.

Let me give you a hypothetical. (Lawyers loooooveeee their hypotheticals.) Let’s say Chad tells Melanie Gibb, “Mel, when Alex told me Lori wanted the kids out of the way, we did what she wanted; now I’m really afraid the police are going to find the bodies of the children where Alex and I buried them in my yard.” We have a couple of hearsay issues. First, Alex is dead, and Mel telling the police what Chad says Alex said is double hearsay. BUT there are exceptions – reasons the judge could let in the evidence because it falls under an exception to the hearsay rule. There are two reasons evidence isn’t hearsay. First, because it isn’t offered to prove the truth of the matter asserted – that Chad killed the children and buried them in his backyard – OR that the evidence has some “indicia of reliability,” such as that it is a statement made by a party and is a statement against their interest.

The issue of hearsay is essentially a sixth amendment protection. A defendant has a constitutional right to cross-examine witnesses brought against them. However, if the evidence is something someone told someone else, the actual speaker is not available to cross-examine.

In the case where the statement against interest is a confession, Bruton applies. Bruton, 391 US 123 (1968) is a case where codefendants were tried together. The question was whether George Bruton was prejudiced when the confession of his codefendant was admitted. Bruton’s codefendant confessed to a postal inspector in an armed postal robbery. Neither defendant took the stand. Because the hearsay statement was a statement against the interest of a party (the codefendant), it was admissible hearsay against the codefendant, but not against Bruton. The court ruled that even though the jury was instructed to disregard the admission when deciding Bruton’s guilt, the statement was too prejudicial to be sure the jury could disregard it.

Here, we heard prosecutor Lindsey Blake say that there were no confessions that would constitute Bruton material, so there was no need to sever the trial. I don’t know whether Prior was fishing for assurance that there were no confessions or whether he was setting the issue in stone so that the prosecution couldn’t come back later and sandbag him. Either way, he got the prosecutor on the record saying there is no Bruton material and that they, therefore, do not intend to offer any. Judge Boyce is correct; it isn’t the job of the court to sift through every statement to determine if there might be prejudicial statements.

The judge was also right that it’s not enough to claim the uncertainty as to whether Lori will be competent by January 2023. Most criminal trials deal with many uncertainties, and lawyers must over prepare by preparing for contingencies. But, unfortunately, that’s just part of the job.

All indications are that Lori is still incompetent. Many readers questioned the statements made by Lori’s brother, Adam Cox, that Lori is refusing to talk to her medical providers and perhaps even her lawyer. They wonder if this is a form of malingering. Yes, it could be. There’s no indication Lori is catatonic and not speaking to anyone. In fact, Adam reported that Lori is talking to their mother, Janis Cox, and hasn’t changed her doomsday beliefs. Many people pointed to the case of Brian David Mitchell, the man who kidnapped Elizabeth Smart. It took several years and several evaluations to prove that Mitchell was malingering, but he was eventually declared competent and tried. The Mitchell case should give you hope that eventually, even practiced malingerers are caught. Finally, some asked if I thought Lori’s call to the LDS lawyer indicated she was competent. That’s a hard one since we don’t know the actual substance of the call. Let’s remember that Lori didn’t spontaneously make the call; a staff person at the facility directed Lori to make that call as “homework” in her treatment. The level of sealed documents and proceedings is frustrating for us, but Lori has a right to privacy about her medical treatment and a right not to have the jury pool tainted by too much publicity.

Now let’s turn to the motion to dismiss the indictment. Once again, the nitty-gritty of the issue is contained in sealed memoranda. Reading between the lines, it appears John Prior has information that one or more of the grand jurors were prejudiced. He likely received information that one or more of the jurors knew someone involved in the case or expressed an opinion about the case before they were called to sit on the grand jury. It’s not unusual for defense counsel to investigate the grand jurors. But, as Lindsey Blake pointed out, a grand jury is different than a trial jury and is held to a different standard.

We heard a lot about a petit jury versus a grand jury. Those are old terms that aren’t used much anymore but still show up in old cases. So let’s break it down.

A grand jury is a panel of citizens charged with the task of reviewing the facts of the case to determine if there is sufficient evidence to bind the defendant over for trial. The legal standard is low. The question is: does a preponderance of the evidence (51%) prove that a crime was committed and that the defendant is the person who committed it? The rules of evidence don’t apply, and hearsay evidence can be considered.

In contrast, a petit jury is a trial jury. These are the citizens who will hear all the admissible evidence, weigh the facts and the credibility of the witnesses, and determine beyond a reasonable doubt (99%) whether the defendant committed the crime they are charged with. In a death penalty case, these are also the citizens who will hear the arguments for and against the death penalty and determine whether there are factors that mitigate imposing the death penalty.

Lindsey Blake outlined the statutes and case law that control challenges to the grand jury, so I won’t repeat them here. However, if you are interested in a deep dive, you can look at everything she cited in her argument. We don’t know which grand juror is being challenged or why. That information is contained in John Prior’s 55-page memorandum. The judge heard the general argument, gave the state extra time to reply to Prior’s memo, and then gave Prior time for rebuttal. While it’s impossible to know why a grand juror is being challenged, dismissing an indictment for grand jury misconduct is much harder than for a trial jury. Even if the indictment is dismissed, the state can either call a new grand jury or schedule a preliminary hearing. In the most extreme case – say, where the prosecution was actively involved in threatening or bribing a grand jury – the court could dismiss the indictment “with prejudice,” meaning it could not be refiled.

I’ll be chatting with Lauren on Hidden True Crime this evening. Join the chat and ask us your questions.