Newsletter
September 4, 2023
Hello, Good Friends of the Good Lori! It's been a minute since I've written a newsletter! There's a good reason for that – I'm writing every day on my book. I would say I'm about halfway through. I have promised my publisher a first draft by the end of the year, so I'm working on it nearly every day.
There are some EXPLOSIVE filings in both Vallow and Murdaugh. Although we will be talking about these developments on my YouTube channel tomorrow at 6 pm Pacific Time (here's the link - https://youtube.com/live/qc1fYuy0t38), they warrant a deep dive for those of you who enjoy getting in the weeds with me.
First, Lori Vallow's attorney, Jim Archibald, has filed her Notice of Appeal. He cites 16 different grounds for appeal, and I want to review each. Next, Alex Murdaugh's attorneys have filed a motion for a new trial, alleging some explosive new evidence. Let's talk about Lori first.
As you may recall, John Thomas has already withdrawn from her case. Jim Archibald has asked the court to appoint an appellate attorney to continue Lori's appeal, and I expect Archibald will withdraw soon as well. Before we dive in, let's remember that to bring an issue up on appeal, you must have objected to or otherwise raised the issue at trial or in pretrial motions. Here are the claims as Archibald outlines them in the motion.
The court made a mistake in finding Lori was competent after her ten months in a mental hospital. Each time the judge made determinations about Lori's competence, he did so after considering the opinions of experts. It's common for both sides to have evaluations and common for experts to disagree. When the experts disagree, the judge must decide which expert he finds more credible. In this case, it was clear that an expert initially determined Lori was incompetent. At some point, the experts then decided she was restored to competency. Like all mental health diagnoses, there is an element of subjectivity. No CAT scans or MRIs can determine when a person is restored to competency. If the judge relied upon a competent expert in deciding that Lori was restored, I don't believe the Supreme Court would second guess that decision.
The court made a mistake in denying the defense expert's request to send Lori back to the mental hospital rather than proceed to trial. As you might recall, on October 3, 2022, the defense filed a motion to continue the January 9, 2023, trial because of concern that Lori was not competent. The judge, once again, issued a stay while Lori was evaluated and took the January trial date off the schedule. Following that evaluation, the judge issued an order on November 15, 2022, finding that Lori was competent. The defense claims Judge Boyce ignored their expert's recommendation that Lori be returned to the mental hospital.
The court made a mistake by violating Lori's speedy trial rights by granting the prosecution's repeated requests for continuance. Most of the continuances were within the speedy trial window. The reason that is true, despite the ten-month delay for Lori's treatment, is because the time the case was stayed because Lori was incompetent doesn't count for purposes of calculating speedy trial.
Did the judge violate Lori's speedy trial rights with the April 3, 2023, trial setting? This is probably the best argument for a new trial. The court and the prosecution acknowledged the date was 41 days past the speedy trial deadline but said he found there was good cause to do so. The Supreme Court will have to determine whether the difficulty of scheduling with Ada County is sufficient good case. It was likely a mistake on the judge's part to postpone the January 9 trial date trial so quickly, particularly since scheduling with Ada County was required. However, Once the trial was canceled, the court had to work with the Boise court to reschedule.
Did the court make a mistake in refusing to dismiss jurors who claimed hardship during jury selection? This is strictly a court determination. The judge did excuse some and not others. I doubt this challenge goes anywhere.
Did the prosecutors commit fundamental reversible errors in their opening statements and closing arguments to the jury? This initial document doesn't give specifics of the objected-to language, so it's impossible to tell at this juncture whether these claims are colorable. I'm sure they will be fleshed out in the defense's opening briefs.
Did the judge make a mistake in permitting evidence under Rule 404(b), and did the court further make a mistake by allowing the prosecution to exceed the scope of the judge's order on 404(b) evidence? As I'm sure you recall, this refers to the rule of evidence 404. This rule excludes information about a person's character, including other bad acts they may have committed, coming in to show the person acted in conformance with their character. The rule does allow for information to come in to prove motive or a common scheme. The issue in the Vallow trial was whether the evidence of Lori's possible involvement with the murder of her fourth husband, Charles Vallow, or the attempted murder of her niece's husband, Brandon Boudreaux. The rule also allows all information to come in once one side “opens the door.” First, they are challenging the court's ruling in allowing the 404(b) evidence in at all, and then, in the alternative, saying that even if the Supreme Court finds Judge Boyce was right to let it in, what came in during the trial exceeded the scope of what Judge Boyce said was allowable.
Was the judge mistaken when he allowed the prosecution to amend the grand jury indictment during the trial, two years after it was filed, and without sending it back to the grand jury? I think this is the other colorable objection. The defense tried to challenge the indictment several times. In the alternative, they asked the judge to order the prosecution to give the defense a bill of particulars. This was all in an attempt to get the prosecution to correct their indictment so the statutory citations actually matched the language of the statute they were citing.
Did the judge make a mistake in allowing the jury to hear statements of co-conspirators but then give the jury instruction that the government did not need to prove the other people were co-conspirators? Further, was the jury instruction wrong where Vallow was charged in the indictment with a conspiracy involving five people, but the jury was instructed using the standard instruction that the defendant need only conspire with one other person. Errors in jury instructions are a fertile source of appellate issues.
Did the judge make a mistake in granting the prosecution's objection to the judge reviewing all the sentencing mitigation evidence the defense submitted without a hearing? This could be a novel issue. The state performed a pre-sentence investigation. Typically, such a report includes evaluations of the defendant, including mental health evaluations and other risk assessment tools that give the judge a better picture of the defendant's situation. However, Lori categorically refused to participate. This was problematic for the defense because her lawyers wanted the judge to consider her mental health condition and other mitigating circumstances. They tried to get the information to the judge by submitting hundreds of pages directly to the court. The prosecution objected, and the judge agreed. Because Lori had refused to participate, the judge only considered around 50 pages of her most recent psychological evaluations instead of the hundreds the defense wanted him to see.
Did the judge abuse his discretion in sentencing Lori to three consecutive fixed life sentences? This is unlikely to go anywhere because the defense must prove that Judge Boyce abused his discretion – that is, he did something outside of the authority given to him by the law. The statutes clearly gave him the authority to impose the sentence, and he went carefully through all the factors he considered on the record.
Did the judge abuse his discretion in ordering $165,081 in fines and court costs because Lori Vallow is indigent? Again, I think this one is a nonstarter. Judges can, and usually do, impose fines well over what a defendant can pay. They do this, understanding that the fines are unlikely to ever be paid in full, but to ensure that the victims and the court are paid first if the defendant comes into a windfall.
The appeals process is a long and winding road. First, the defense will need written transcripts of EVERY pretrial hearing and six-week trial. It could take more than a year to procure the transcripts. Creating written transcripts is a laborious process requiring hundreds of hours of transcribing, checking, and double-checking by a certified transcriptionist before the transcript can be certified. Once the transcript is received, the defense must write their opening brief and submit it to the court. Again, it could take months to analyze the transcripts and then formulate and research all the issues. The prosecution will have time to respond with a rebuttal brief, and each side may also be able to file surrebuttal briefs.
Appellate work is a specialty. The public defender will appoint appellate attorneys for Lori, and the Idaho Attorney General's office will provide appellate lawyers for the prosecution. In the meantime, Lori faces charges in Arizona relating to the murder of Charles Vallow and the attempted murder of Brandon Boudreaux. Arizona has requested Lori's extradition, and the Governor of Idaho has said he will approve the warrant. It's unknown whether Lori will contest the extradition or not. The only thing she can contest is to force the states to prove she is the person listed in the Arizona warrant. If she contests, an identity hearing will need to be scheduled. Either way, the processing will take some time. Once she is approved to be transported to Arizona, the trip could take weeks if she is transported on the usual prison transport circuit. Prisoners are loaded onto a prison bus (not a cushy motorcoach - think ConAir or The Fugitive), then the bus makes a circuit through the western states, picking up and dropping off at every jail and prison along the way and stopping overnight in temporary prison holding cells. Each new jail or prison requires prisoners to be strip-searched and in-processed. It's a far cry from her flight from Hawaii or her flight on the Governor's plane from Boise to Rexburg when she was first arrested.
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There is also big news in the Alex Murdaugh case. The news, if true, is disturbing and discouraging. Today, Murdaugh's defense team filed an explosive motion to suspend their appeal and seek a new trial. They allege the clerk of the court, Rebecca Hill, commented to the jurors about the reliability of the evidence and whether Alex Murdaugh's testimony was credible. They also claim the clerk told the jury they could not take cigarette breaks until they reached a verdict. Becky Hill wrote a book about being behind the scenes during the trial. The book was recently released, and she has been making press appearances to market the book.
The clerk of the court has a very important job. She is an elected official who takes an oath to protect the Constitution and the court's fairness. She ensures the courtroom runs smoothly and considers the jurors' security and comfort. The Murdaugh team's affidavit alleges that Hill instructed jurors not to be “misled” by the evidence presented by the defense and not to be “fooled” by Alex's testimony in his own defense. They claim Hill had many private conversations with the jury foreperson. During the trial, they say Hill asked the jury for their impressions on Murdaugh's guilt or innocence, and they claim she invented the story about a Facebook post to remove a juror she thought might not vote to convict. Throughout the trial, the six members who were smokers were allowed to take cigarette breaks. Still, once the case was turned over to the jury for deliberations, they were told they could not smoke until they reached a verdict, but that, in Hill's opinion, it “shouldn't take them long.” The defense claims she did all these things because she hoped for a book deal, and a hung jury would have interfered with that plan.
On the day the jury visited the Moselle property, where the murders occurred, Hill writes in her book that everyone there could see that Alex's story was impossible. She said she exchanged looks with the law enforcement officers and jury members that made it clear they all knew Alex was guilty. On the day of the verdict, Hill conversed with a juror who was later dismissed because of the purported Facebook post. Before her dismissal, Hill allegedly asked the juror what facts she was still questioning. The juror told her that while Paul's video was convincing, she wondered why the murder weapons had never been found. Hill told her that everything Murdaugh had said was a lie and not to get hung up on the guns, that they would never be found. Hill then is alleged to have said, “Just go in and ask for a raise in hands, and this will be over and done with,” and that “everyone needs to be on the same page.” According to jurors, Hill told them they would be famous and even handed out reporters' business cards. She appeared on the Today Show with some jurors and got her book deal.
A film crew had negotiated a contract with the Colleton County Sheriff to provide security and permit them to film in the courthouse on a court holiday. After Hill got her book deal, she attempted to renegotiate the agreement to require the film crew to pay for the use of the courthouse and to feature her book cover in the film. South Carolina Code § 8-13-700(A) says, “No public official, public member, or public employee may knowingly use his official office, membership, or employment to obtain an economic interest for himself . . . .”
South Carolina law is clear that if there is third-party contact with jurors, the defense is entitled to an evidentiary hearing. The defense points out that the issues they present in their motions are not ordinary or inevitable mistakes that arise in a trial. Instead, they argue, "The issue here is that an elected state official engaged in intentional misconduct—deliberately violating a defendant's constitutional right to a fair trial before an impartial jury—to secure financial gain for herself.” They may very well be right because the U.S. Supreme Court has ruled that the right to confront and cross-examine any witness who provides evidence to the jury is violated when a third-party contacts jurors and expresses opinions. A career elected court official surely knew better, so we can only conclude that she knew what she was doing and was furthering her own ends.
This is another fascinating wrinkle in a case that has more of them than Dick Harpootlian's linen seersucker suit. Stay tuned for more.
