Motions scheduled for December 8, 2022 hearing
December 2, 2022
Hello Good Friends!
I hope you had a wonderful Thanksgiving. I am grateful that I could spend time with my bestie and her family, but COVID-19 still caused some disruption for our family. A positive test derailed a road trip for my daughter and future in-laws to visit her fiancé’s family. They turned around in time to pick up a turkey and have dinner at home, with the offending brother banished to the patio. We still have the record, though, for the best candlelight dinner. Several years ago, an exploding electrical transformer two houses down meant we were out of power all Thanksgiving day. Fortunately, we’d baked desserts the day before and found a friend with an empty oven to cook the turkey. A gas stovetop meant we could cook the rest of the dinner with modification. It turned out to be our favorite holiday memory.
YouTube Offerings. Before we dive into the motions, I want to thank everyone who tuned in to my new YouTube channel. Thanks to the 4352 people who have subscribed and everyone who has spent nearly 29,000 hours viewing the content. If you have not subscribed yet, please do. While the Vallow/Daybell case is in a bit of a lull, I am offering True Crime Wednesdays, where we discuss other true crime cases, as well as the usual Friday evening wrap-up of all things Vallow/Daybell. Here are all the details:
True Crime Wednesday airs live each Wednesday at 6 pm Pacific. Since my Friday Vallow/Daybell YouTube program began, many people have asked my opinion on other cases. So I will be discussing those questions and answering those questions during True Crime Wednesday. No show on Wednesday, December 21, 2022.
TGIF and Vallow/Daybell, where we talk about all things Vallow/Daybell, airs live each Friday at 6 pm Pacific. No show on Friday, December 23, 2022.
When the Vallow/Daybell trial begins, I plan to attend every day. That will be important if Judge Boyce continues his ban on cameras in the courtroom. I will be your eyes and ears in the trial and post YouTube shorts during the day and after the court adjourns. That makes it important that you subscribe to receive notifications when I post those updates.
I will also be recording some background episodes on the case, so look for those soon.
You can find my YouTube channel at
https://www.youtube.com/@childrenofdarknessandlight
True Crime Quilt Guild. As most of you know, I’m a quilter. I am offering a monthly quilt block in our True Crime Quilt Guild. If you are a quilter or want to learn, we are starting a virtual true crime quilt guild in January 2023. We will start with a sampler quilt, suitable for beginners, and I’ll produce an instruction video for each month’s block. You can download the pattern from Etsy here:
https://www.etsy.com/listing/229677900/stepping-stones-sampler-quilt-pattern
The cost is $12. Use coupon code THANKYOU22 for 25% off. Choose your own colors and fabrics, and be on the lookout for sample blocks soon.
Hearing December 8, 2022. A hearing is scheduled for December 8. 2022, at 9:30 am in the Daybell/Vallow case. The hearing is to address several issues. First, it is a scheduling hearing, presumably to reset the trial dates. Second, the hearing will address several motions, including a Motion for a Bill of Particulars, filed September 2, 2022; Motion to Prevent Death Qualification of Jury, filed September 26, 2022; Motion to Compel, filed November 22, 2022; and Motion to Declare Death Penalty Unconstitutional, filed November 23, 2022. Let’s look at the motions and what we might expect.
Motion for a Bill of Particulars. The pending motion was filed by Lori Vallow Daybell’s attorneys, Jim Archibald and John Thomas. The judge has already heard argument on October 13, 2022, on a similar motion filed by Chad Daybell’s attorney, John Prior. The judge denied that motion. There is no statutory basis for a motion for a bill of particulars in Idaho, although other states allow such motions. Unless Lori’s attorney’s come up with a different argument for their motion, I expect the judge to deny this one. The state argued that the defense was simply using this to get at information they are not entitled to – specifically, the state’s theory of the case.
Motion to Compel. The parties continue to argue over discovery. Discovery disputes are common in all cases, but this case has had an extraordinary number of filings about discovery. As I have discussed in previous newsletters, the state must turn over all information, reports, interviews, and evidence to the defense in all criminal cases. That means everything. The defense has asserted over and over that there are witness statements that the state has not turned over. Now, it’s clear from the motion that the state asserts that because the witness interviews were conducted by the FBI and not state law enforcement, they don’t have to be turned over. That argument is ludicrous. Under the Federal Supreme Court decision in Brady v. Maryland, 373 U.S. 83 (1963), ALL discovery materials must be turned over. The Brady decision makes no distinction between evidence, depending on who collected it. It seems to be an attempt on the part of the state not to tip their hand regarding their theory of the case. While there are things that are protected as attorney work product, witness statements categorically fall outside what is protected. Attorneys have a right to protect their own notes and thought processes in formulating and preparing for a case. They do not have the right to withhold witness statements because they might tip the defense as to the theory of the case. The defense should win this motion because it is a fundamental fairness issue. The resulting decision from Judge Boyce should come with a stern admonishment about the Prosecution’s obligation to deal fairly with the defense.
The next two motions are typical of motions filed in death penalty cases. They could be categorized as more theoretical or philosophical in nature. They challenge the concept of the death penalty and are intended to set up the issues on appeal.
Motion to Prevent Death Qualification of Jury. At jury selection, each juror will be asked about their feelings and opinions regarding the death penalty. Each juror will be asked if they could impose the death penalty if the facts support it. It attempts to weed out jurors with a moral objection to the death penalty, who would not impose the ultimate penalty no matter the facts. Qualifying a jury in this manner makes sense since no one wants to present weeks of testimony only to have the jury deadlock on the penalty. However, some studies suggest that asking jurors about their beliefs may result in a jury that is more likely to impose the death penalty. The motion argues, “Empirical research has demonstrated that the systematic exclusion of jurors who have a moral objection to the death penalty results in capital juries that tend to be whiter, more conservative, more male, more sexist, more conviction-prone, more death-prone, and more biased against defendants. As a result, death qualification distorts the jury function and results in juries that do not fulfill their function as fair and impartial representatives of the community.” The studies have been questioned because they reflect the general population’s opinions rather than actual prospective jurors. In addition, the studies don’t consider those actual jurors are sworn to apply the law to the real facts of a case.
Motion to Declare Death Penalty Unconstitutional. If you are interested in the arguments opposed to the death penalty, Jim Archibald and John Thomas’s 62-page motion is worth a read. It lays out why they assert that the death penalty is unconstitutional. Those arguments are made in every state and for every death penalty defendant, hoping the issues will eventually make it to the U.S. Supreme Court. To date, the Supreme Court has ruled that the death penalty, as presently applied in a two-phase trial that includes a jury who considers mitigation issues, is constitutional. Given the court’s current makeup, a change to that decision seems unlikely.
Gerald Ross Pizzuto, Jr. Lest we think these questions are merely academic exercises, let’s consider Mr. Pizzuto’s case in Idaho. Pizzuto was convicted of the 1985 deaths of Berta Herndon, 58, and her nephew, Del Herndon, 37, during an armed robbery. The pair were bound and bludgeoned. A codefendant then shot Del Herndon in the head. Pizzuto was sentenced to death in May 1986. On November 16, 2022, a judge entered a death warrant for Pizzuto and ordered his execution to take place on December 15, 2022. Pizzuto’s execution would have been the first since 2012 when Richard Leavitt was executed. Pizzuto’s defense filed a motion to stay the execution, which was denied on November 22, 2022. Pizzuto has been in hospice care for bladder cancer since 2019. While the judge refused to stay his execution for legal reasons, the execution was ultimately stayed because of a common issue in death penalty cases: the necessary chemicals were unavailable. Lethal injection is the only allowable form of execution in Idaho, and the shortage of essential chemicals makes it impossible. The shortage began around 2010, when companies that manufacture the key drug, sodium thiopental, started refusing to supply drugs for executions. In 2014 several botched lethal injections led to further questions about the procedure, which had always been billed as a humane form of execution. While still sentencing defendants to the death penalty, some states have imposed a moratorium on executions because of questions surrounding lethal injections.
Court Decision on Motion to Sever. Finally, I want to take a bit of a deep dive into the court’s decision not to sever the cases. You will find that I tend to get deeper into the legal issues in the newsletter. The decision still perplexes me since it seems that Judge Boyce has painted himself into a corner. Lori Vallow Daybell has not waived her right to a speedy trial. Her arraignment on the indictment didn’t happen until she was declared competent earlier this year, and that’s when her speedy trial rights began to run. A provision in the statute permits a judge to determine that the defendant’s rights to a speedy trial can be extended for “good cause.” The judge found that there was good cause to extend the period by 90 days to allow for a joint trial to start on January 9, 2023. However, the judge has vacated that date and no new date has been set. The judge indicated during the October 13, 2022, hearing that it could be another year before the trial could be reset. Lori Vallow Daybell’s trial should have been set for October 2022 to comply with her speedy trial deadline. Every day her trial doesn’t happen is a speedy trial violation. It’s hard to imagine how the judge justified the violations for “good cause when he refused to sever the trials. Violation of speedy trial right is, by its nature, prejudicial. That is an issue that needs to be raised by Lori’s lawyers.
The court’s opinion, dated November 17, 2022, outlines the reasons for his decision on Chad’s motion. To begin, the judge outlines the legal standard. “Joinder to two or more defendants is proper if they are alleged to have participated in the same act or in the same series of acts or transactions constituting an offense or offenses…Actions properly joined may be severed if it appears that a joint trial would be prejudicial.” The appeals court will review a court’s denial of a motion to sever only for an abuse of discretion.
Interestingly, until this opinion, we have only heard the argument that a joint trial would be financially advantageous. Until now, we have not heard a legal argument for joinder. In this opinion, the court finds a single trial is legally warranted because the case involves conspiracy charges, and conspiracy necessarily involves the agreement and participation of conspirators. It is the first argument in support of joinder that makes sense to me. The court completely discounts the prejudice to Daybell that might occur, saying that it all amounts to speculation. I still think severing the cases would be the cleanest decision, but I can, at least, see the court’s reasoning here. One of the scenarios most likely to result in severance is when there is a confession by one of the defendants. That’s what’s commonly called Bruton material. The prosecution has repeatedly represented to the court and the defense that there are no confessions from either defendant and, thus, no potential prejudice. Prior also contends that Daybell could be prejudiced by being unable to present separate mitigating factors to the jury in the penalty phase. The judge finds that there are remedies short of severance that would address the issues, such as limiting instructions to the jury. The judge could also order the penalty phases to be separated.
I hope you will join me on YouTube. If you have questions you would like me to answer either about the Vallow/Daybell case or any other true crime case, please email me at http://info@thelorivallowstory.com.
