New Documents and New Lawyers! 8/13/21

Hello Friends!

So much reading of tea leaves is required this week!

Let's start with the simplest document first. Judge Boyce issued an order in both cases. The order says that although the cases are currently joined for trial, they are separate case numbers for administrative purposes. Why would the court do this? They did it so every document does not have to be filed in both cases. There was much confusion when the death penalty notice for Chad was filed in Lori's case. The judge is giving the lawyers and the clerk permission to file documents in one case and not the other. The document was not, as some people reported, a severance of the case. Note that the last line of the order says, "The defendants are, however, joined for purposes of trial pursuant to I.C.R."

Now the more complicated documents. Let's turn to the discovery and contempt motions. And let me just get this off my chest first: "Really, Mark Means? Really? Could you please just not?"

Whew. Okay. I'm better now. First, Means asks the court to compel discovery AGAIN. Once again, the prosecutor answers by saying, we already gave it to you, and if you want to, you are welcome to make an appointment to come here and see/copy/photograph anything you want. Then in a new discovery request, Mark Means asks for more of the same. He asks for the medical examiner's report and all lab testing etc., done on Tammy Daybell, on the "exhumed bodies." I'm not sure if he is referring to Tammy Daybell or if he considers the children's bodies "exhumed." Now Means is correct, that he should have all the medical examiner and autopsy results. He should also have access to the stored DNA to do independent testing. If there are insufficient samples to duplicate testing, both parties' experts should be present during the testing of the consumable sample. However, given the recent leaks of discovery information, including information from sealed documents, that occurred from his office, I can understand the prosecution's hesitancy to release such sensitive material. Means then asks for a list of all witnesses that the state has taken "formal or informal" statements from. Generally, the state has law enforcement interview witnesses and file formal police reports that document the interview. If a prosecutor informally interviews a witness, say to clarify something, the prosecutor may handwrite notes, make notes about trial strategy, or note how the law and the facts line up. Generally, those notes are privileged and work product of the attorney. Means then asks for every statement or conversation by a long list of potential witnesses. And a very long list of what data he's asking for.

Here is the bottom line. Prosecutors and their investigators (law enforcement) can and do talk to witnesses in criminal cases. However, they do not always record or otherwise document those encounters. The defense is free to speak to witnesses or have their investigator talk to witnesses. The defense may or may not document those encounters. The defense has a responsibility to investigate their case. The prosecution has no duty to investigate to case for the defense. IF an encounter is documented, it must be shared with the other side.

Means outlines specific discovery that he needs or was missing.

Attorneys and witnesses bad mouth the other side all the time. It's just part of what happens when the stakes are high, and the subject is emotional. I'm pretty sure Mark Means had choice things to say about prosecutors too. It's not slander if it's true, Mark. If you want people to stop saying negative things about you, stop making yourself such an easy target.

He asks for information regarding a witness statement from someone called Reegen Price. She is a neighbor who heard a gunshot on the day of the "raccoon" shooting. Here is another example of Means expecting the DA to do his work. "Please identify any and all records identify (sic) her physical location at the time of the shooting." But, again, this is a job for a defense investigator, not a discovery demand.

And now for the elephant in the room! Jim Archibald, an experienced public defender, was appointed by the court to represent Lori. The order appointing him, dated August 6, 2021, is enlightening. The judge lays out the timeline and his reasoning. First, the judge points out that "a finding of indigency coupled with potential penalties of the death sentence on charges against her in the indictment require this Court to appoint a qualified trial attorney." (Italics theirs). The judge goes on, "Certainly, the Sixth Amendment also 'grants to the accused personally the right to make his defense,' meaning every defendant enjoys the right to waive death penalty qualified counsel and hire their own private representation. However, because the matter is stayed pursuant to a finding that the Defendant is incompetent to stand trial and is therefore deemed unable to understand the nature of the proceedings against her and meaningfully assist in her defense, the Court is unable to conduct the requisite inquiry to determine whether the Defendant may elect to "knowingly, voluntarily and intelligently" waive her right to death penalty qualified counsel at public expense."

Now let's put this together with some other things that have been filed in the case. Namely, on July 27, 2021, a document titled "Order Sealing State's Motion and Memorandum Objecting to the Entry of Appearance of Counsel and for a Finding of Conflict" Of course, the sealed document is unavailable. Still, we can glean some information from the caption. The state made a motion objecting to the entry of an appearance of counsel, presumably Mark Means and asked the court to make a finding that there was a conflict of interest. Now, a conflict of interest that would disqualify an attorney has nothing to do with their qualifications. It has to do with their contact with people, prior representation, or other ethical obligations. Whatever the state is objecting to, it isn't that Means isn't qualified. The Idaho State Bar Association is the organization that monitors lawyers and prosecutes ethics violations. They do not release any information about ongoing investigations. If Means is under investigation, the public will only find out after the fact, and then only if the adjudication comes out against him.

So it appears that Means objected to having Archibald appointed. It also appears from the judge's order that someone was contending that Lori has the right to waive her right to a court-appointed death penalty qualified lawyer. The judge agreed but said Means couldn't have it both ways. Either Lori was incompetent, or she wasn't. Since she is, she is presumed to be incapable of making a knowing, voluntary and intelligent decision about waiving counsel. Now, why Lori is clinging doggedly to Mark Means is beyond me. While I often disagree with Scott Reisch of Crime Talk, I do agree with him when he says, "Mark Means has got to go." I've tried to give Means the professional benefit of the doubt, but he's clearly out of his depth. More importantly, though, he's short on the necessary judgment to represent his client properly. When your ego gets in the way of acting in your client's best interest, it's time for a gut check. I was lucky enough to work with remarkable colleagues in an environment where we all expected one another to provide those reality reminders. Solo practice has many great advantages. It also has the disadvantage of allowing a lawyer to become isolated and insulated from what is really going on. Lori Vallow needs an experienced lawyer who meets the state's qualifications to represent clients in death penalty cases. She will not have that in Mark Means.

There have been persistent rumors that Lori is back in the Madison County Jail. Both Mark Means and Jim Archibald have been seen going in and out of the jail frequently. It would not surprise me if those rumors were true. If, as we suspect, the primary method of Lori's treatment is with psychotropic drugs, those drugs can be administered anywhere, once prescribed. While the state hospital is accustomed to securing criminal patients while they receive treatment, they aren't accustomed to protecting a patient from outside forces. Let's remember, Lori is easily the most hated woman in Idaho.

Happy Friday, friends. Have a great weekend, and don’t forget to catch Lauren Matthias and me tonight on Hidden True Crime on YouTube at 7 pm PDT.