New Motions call indictments into question
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Let me give you a quick personal rundown for everyone who has asked, and then we will get into a bit of news and the answers to a few reader questions. My family completed our move to Boise – actually, we are in Meridian, a suburb of Boise. We like our new house, although it’s much smaller than our home in Mesa, AZ. My mother, who will turn 89 shortly, is living in an assisted living residence just five minutes from my new home, and she loves it. The care there is outstanding, and she’s enjoying the chance to socialize and make new friends. My husband is doing well with his recovery from spine surgery, but it’s a slow process and hard work.
There have been some developments in the Vallow/Daybell case. You may recall that Lori’s previous attorney, Mark Means, filed a motion to disqualify the prosecuting attorney, Rob Wood, on December 15, 2020. Means based his motion on a claim that Wood had acted improperly in a conversation he had with Lori’s sister, Summer Shiflett. The conversation occurred in Arizona before Summer had an interview with law enforcement. Summer’s attorney, who also represented Zulema Pastenes, recorded the conversation. The court held a hearing and ruled that Wood did not do anything improper and denied Means’ motion.
Recently, Chad Daybell’s attorney, John Prior, filed a motion to disqualify Rob Wood and/or Rachel Smith. Prior filed the motion on March 8, 2022. I can’t be any more explicit about the substance of the motions because the court seals documents and hearings at the drop of a hat. On July 5, 2022, the court issued an order denying Prior’s sealed motion and outlining the court’s reasoning in yet another sealed Memorandum Decision and Order. We don’t know why John Prior thought Wood and Smith should be disqualified, but I have said before that I believe it has something to do with the grand jury. We will see if I’m right if the court ever unseals the documents. Except for specific personal data like medical records, the court should unseal the records once the trial is over. If Lori’s attorney makes her mental health an issue at trial, the court should consider any privilege waived and release her mental health records too.
Many people have asked, “why is it so quiet?” The answer is that the defense teams are hard at work preparing for trial. The defense investigators are re-interviewing every witness, except for law enforcement officers. The teams will comb through every line of discovery and turn over every stone. Each defense team will develop its own theory of the case. Sometimes the defense theory is that someone else committed the crime (remember Chad’s daughter, Emma, claimed Chad was set up by Lori and her brother, Alex?). The defense theory could also present an alibi – that the client could not have committed the crime because they were elsewhere at the time. Sometimes the defense theory is that the defendant acted in self-defense or that the crime otherwise couldn’t have happened as the prosecution says it did. And sometimes, the only option for the defense is to poke as many holes in the prosecution’s case as possible to introduce reasonable doubt and show that the state has not met its burden of proof.
In addition to preparing the actual case, the litigation team is organizing trial exhibits and assembling proposed jury questionnaire questions. The mitigation team is hard at work digging into each defendant’s background, looking for reasons the court should not impose the death penalty.
Many people have asked whether I think there are plea agreements in the works. Defendants can take a plea any time before the jury renders a verdict. I have seen trials stop mid-stream for a plea (usually when the trial isn’t going well, and the prosecutor wants something from the defendant, like information). However, the fact that the teams are moving full speed ahead with preparation tells me pleas are unlikely. It’s hard to say why. Is it because the prosecution feels they have a slam-dunk case and are insisting on the death penalty? Possibly, but death penalty cases are expensive, and all trials carry an element of uncertainty. Most prosecutors will settle for life without the possibility of parole in exchange for a sure thing. Many are also asking if I think we will see the lovebirds turn on each other. I am sure there will be some finger pointing and suggestions that one influenced the other. It remains to be seen if that will amount to a full-fledged turn.
Despite the recent “quiet,” Lori’s team did file some motions on July 12, 2022. The Motions are titled, Motion to Incorporate Federal & State Constitutional Grounds in Support of Future Motions and Objections, and two Motions to Remand to Grand Jury for Further Proceedings.
I had a look at the documents today, and I have an explanation. Grab your Ghillie suit because we’re about to get down in the legal weeds. The first of the two motions to remand is probably the hardest to explain. The motion conflates two rules, one for grand juries and one for trial juries, and attempts to apply both to the grand jury indictment.
All criminal offenses are defined in state statute by the elements of the crime. For example, in Idaho, the prosecutor must prove beyond a reasonable doubt each of these elements of the crime of first-degree murder:
The crime happened in the state of Idaho.
The crime occurred in the county where it is charged.
The defendant killed a human being
With malice aforethought
To understand the defense motion, we have to understand two well-established rules.
First, when the prosecutor presents a case to the grand jury, the grand jury must find probable cause to bind the defendant for trial. The grand jury must assure that there is probable cause to believe that the defendant committed every element of the crime listed in the statute. Probable cause is a much lower standard than proof beyond a reasonable doubt.
Second, before the prosecutor can seek the death penalty, she has to allege certain aggravating factors were present. These aggravating factors become additional elements the prosecutor must prove. In addition to the statutory elements, the prosecutor must also prove beyond a reasonable doubt that one or more aggravating factors exist. These aggravating factors are considered additional necessary elements of the crime. In Idaho, the following is a list of possible aggravating factors:
A previous conviction for murder
More than one victim at the time of the murder
Knowingly creating a great risk of harm to many people
Committed for remuneration or the promise of remuneration
Exceptional depravity or an especially heinous or atrocious, cruel or manifesting utter disregard for human life.
Committed during the perpetration of another felony – arson, rape, robbery, burglary, kidnapping, mayhem
When the victim was a potential witness in a crime
When the defendant constitutes a continuing threat to society.
In their motion, the defense claims the same standard should apply to grand juries that applies to trial (also called petit) juries – that every element, including the aggravating factors, should be tested at grand jury to assure there is probable cause to believe the defendant committed them. To quote the motion, “Just as Mrs. Daybell is entitled to a grand jury finding of probable cause on what charges are brought against her, she is likewise entitled to a finding of probable cause on each alleged statutory aggravating factor.”
It’s hard to see how this argument succeeds. The statutes lay out a precise sequence of events. First, the prosecution lays out their case for the grand jury. Then, if the grand jury finds probable cause to believe that the defendant committed every element of the crime, they issue a true bill and an indictment. Next, the defendant is indicted for the crime, and the state has 60 days to decide whether to seek the death penalty. Finally, at trial, the prosecution must prove every element of the crime, including the aggravating factors, beyond a reasonable doubt.
The state is not even required to decide on the death penalty until 60 days after the defendant is indicted. So how, then, can the court require the grand jury to speculate about probable cause for the aggravating factors before anyone even knows if they will be invoked?
Aggravating factors are sentence-enhancers, not charge-enhancers. It makes perfect sense to require that those factors be proven beyond a reasonable doubt if the prosecutor intends to use them to enhance the defendant’s sentence. Conversely, it makes no sense to require a grand jury to speculate about what aggravating factors may or may not be invoked because it does not affect the decisions surrounding the charge.
The second motion actually makes a better legal argument, and the defense may win that one. An indictment may list as many counts as the prosecutor thinks she can prove, but each count must allege only one crime.
In the indictments for both Lori and Chad, counts one and three allege two crimes in a single count. The heading reads “Conspiracy to Commit First Degree Murder and Grand Theft By Deception.” Not only is the heading unclear – is the charge for conspiracy to commit murder and conspiracy to commit grand theft, or does the conspiracy apply only to murder - either way, they are two separate and distinct crimes. There is no strategic reason for this; it’s a rookie mistake. The prosecution wanted to tie the conspiracy to commit murder charge to the grand theft charge so they could later use the “for remuneration” aggravating factor. Still, she should have pled them as two separate counts.
Indictments are important. Under the Constitution, the defendant is entitled to be informed of the charges against them. That notification is accomplished by indictment, so indictments must be accurate to assure the defendant knows the charges and can defend against them.
There are a couple of possible remedies for the current problem. The prosecution can recall the jury (it should be the same people who initially reviewed the case) and ask them to revise the indictment by splitting the counts into two separate counts OR ask the court to strike the theft charge simply. The prosecutor may not want to lose the theft charges, but to be clear, the defendant doesn’t need to be charged with the crime of theft to allege that remuneration was at least part of the reason for the murder. Aggravating factors have to be proven beyond a reasonable doubt but don’t have to be charged as their own separate crimes. It’s understandable if this all seems clear as mud. These sorts of technical legal arguments are sometimes hard to parse out. You probably want to know the bottom line – can the entire indictment be tossed out? The answer is that it’s unlikely, but if the court or the prosecution doesn’t take some steps to cure the error, it could be a good issue on appeal.
Finally, I want to address a question from reader, Brenda Barnes. Brenda asks an excellent question about what evidence is allowed and what is kept out. The idea that some persuasive evidence might be kept out of a trial frustrates laypeople.
When a trial is presented to a finder of fact, it is important that the evidence presented is as reliable and accurate as possible. Let’s remember, whether it’s a civil or a criminal case, the outcome will profoundly impact someone’s life, so we want to make sure the decision is based on a firm foundation. Think of it this way. Which is more persuasive, a person who testifies, “Jake told me Sarah said she paid her phone bill or is it Sarah offering the court a copy of a canceled check? The rules of evidence are designed to test the evidence and ensure only the most reliable is presented to the jury.
The first question is whether the evidence is relevant. If it is relevant, does its prejudicial effect outweigh its probative value? It’s a rule that’s sometimes hard to understand. Let’s say you have a sex abuse case involving Ivan and Sophie. Sophie claims that Ivan touched her inappropriately in a bar. She claims she told him to stop, and he didn’t. Is the fact that Ivan was just paroled after serving a five-year sentence for rape relevant? Probably. Is it also prejudicial? Absolutely. Why? Because we can’t present a jury with information about Ivan’s past actions to prove that he must have acted the same in this instance. We have to present actual evidence that Ivan did the crime he is accused of.
This means that some relevant evidence stays out. The most likely information to be excluded is hearsay. Hearsay is tricky. A statement is only hearsay if it’s being offered to prove the truth of what is being said. In legalese, it’s being offered to prove the proof of the matter asserted. So in the above phone bill example, Jake’s statement was being used to prove Sarah paid her phone bill and so would be kept out.
Hearsay can be used to prove other things, though. For example, if I ask a witness in a nightclub fire, “what did you hear?” and the witness says, “I heard Frank say, ‘holy shit, the fireworks box is on fire, run!’” It probably comes in under a couple of hearsay exceptions. First, it comes in because the law believes that a statement made when a person is under duress or in the throes of an exciting event is probably true. Second, it comes in to show the effect it had on the listener. “What did you do when Frank said that?” “I ran like hell.” “And what happened when you reached the exit?” “The door was chained shut, and people kept crowding in behind me.” If Frank is a defendant in the case, it would also come in as a statement of a party.
Don’t feel bad if any of this makes your eyes glaze over. Law students spend an entire school year learning the rules of evidence, and the rest of their careers, perfecting their knowledge and learning to think fast on their feet. Even judges get it wrong in the heat of a trial. That’s why appeals courts exist. The purpose of the rules of evidence is to assure the most reliable information gets presented to the jury, which can sometimes result in some information we may think is essential being excluded.
I want to take a moment to say thanks for your support, good wishes, and positive feedback. When the trial date was set, it seemed very far off, but now January 9, 2023, feels right around the corner. Lauren and I are developing some exciting new features for the trial, so look for announcements soon.
