Not Guilty Plea and other Motions
Change of Venue and a Not Guilty Plea? What do these new documents mean?
July 16, 2020
Lori Vallow Daybell’s attorney, Mark Means, filed a new document yesterday. The document actually combines several things. First, it enters Lori’s plea of not guilty to the remaining Madison County charges of Resisting or Obstructing an Officer, Solicitation of a Crime and Contempt. It also makes three motions. Not all jurisdictions allow attorneys to combine motions into one document because their computer databases can’t track three motions in one document, but apparently, it’s still allowed in Idaho.
Let’s take the motions one at a time.
First, there’s a Motion RE: Reservation of Affirmative Defenses. What’s an affirmative defense? It’s any challenge to the procedure or the factual basis surrounding the charges. Mark Means outlines the specifics in his motion, and he wants more time because he says he doesn’t have all the discovery. Affirmative defenses have to be pled early in a case. If you don’t notify the prosecution that you intend to assert an affirmative defense, you lose it. The most typical affirmative defenses are self-defense, alibi, and mental capacity, but there are other, more procedural challenges too. Means outlines the specific defenses he wants more time to decide if he will assert.
Jurisdiction is a very technical challenge. In every case, the first question any court makes it to ask whether the court has jurisdiction. There are two kinds of jurisdiction: jurisdiction over the subject matter and jurisdiction over the person. In other words, is there a law that makes the conduct a crime, and did the crime occur within an area where the court has jurisdiction? To determine personal jurisdiction the court asks whether there is something about the person’s location or residency at thet time the crime was committed that gives the court authority over her. Lori’s remaining charges are: Resisting and Obstructing an Officer, for lying to police about JJ’s whereabouts, Solicitation of a Crime, for asking Melanie Gibb to lie about JJ’s whereabouts, and Contempt, for failing to comply with the court’s order to produce the children. The crimes occurred in Idaho, where the criminal behavior violates a state statute; it is believed that Lori was present in Idaho at the time the crimes occurred. I doubt there is a challenge to jurisdiction, but it’s a “use it or lose it” defense, so Means is smart to preserve it just in case. Yes, I said Mark Means was smart. I realize that opinion may be unpopular, but let’s table that discussion for another day.
Improper service. Every legal action must be served on a defendant so they know they are bring charged with a crime. In Lori’s case, she was served with the order to produce the children while she was still in Hawaii. Once the judge issued the arrest warrant, she was also served with it.
Two other objections Means wants to preserve are “defendant did not knowingly violate any order,” and “inability to comply.” Here is where the cringy argument comes in: at the time the court issued its order for Lori to produce the children, they were already dead. You can’t produce dead children to prove they are alive and well. Impossibility is a defense to contempt. I’m a little surprised the DA didn’t dismiss this count with the others. The DA may argue that while it was impossible for Lori to produce the children, it wasn’t impossible for her to answer, because she could have notified the court the children were dead instead of ignoring the order.
The last defense Means seeks to preserve is that the two charges, Resisting and Obstructing an Officer and the Solicitation of a crime, are actually the same offense; that soliciting Melanie to lie about JJ’s whereabouts is just a subset of the offense of obstructing the police investigation. Criminal charging is not an exact science. Usually, the DA will charge the most serious crime that arises out of a specific course of conduct. The DA will argue that the crimes were separate and distinct acts, first lying to the police about where JJ was and then asking Melanie to lie. Means will argue that it was all the same course of conduct, and it will be up to the judge to decide.
Don’t confuse this with another tactic in charging a case, where the DA charges the same conduct under several theories. For example, a DA might charge the same murder as a felony murder (committed while the defendant was committing another felony, like rape) and as aggravated murder because the victim was under the age of fourteen. It’s a way of making sure that when a trial comes, the DA is able to argue several different theories of how the crime was committed.
Sometimes what seems like catchall phrases in legal documents can be very important. In this case, Means says he “expressly reserves the right to assert additional defenses once the state has complied with discovery requests in these cases.” That means that he is reserving the right to assert the other affirmative defenses, like alibi, self-defense, and mental disease or defect at a later date in “these cases. (plural)” Sneaky or sloppy? Not sure, but it seems he is attempting to lump this case in with the conspiracy charges in Fremont County.
Second, there is a Motion For Bond Reduction. Every time this comes up, people hyperventilate – just quit it. Lori’s bond in Madison County was set based on the more severe felony charges. Now that the abandonment charges have been dismissed, it makes sense to ask for a reduction in the bond on the remaining charges. Her bond on the more serious charges out of Fremont County is still set at $1 Million, and I don’t expect the judge to lower it, so no more hyperventilating. The DA is not going to allow Lori or Chad to be released if he can help it. As it stands, there is no reason to rush the investigation; they are working methodically to build a case for murder. It’s like a massive jigsaw puzzle with pieces that can fit together more than one way, and it’s crucial that they don’t rush. Once murder charges are filed, the defendant’s speedy trial rights attach. While most defendants waive that right so they can take their time building a defense, the DA must be ready to present their case within 60 days in case the defendant asserts her right to a speedy trial.
Third, Means reserved the right to ask for a Change of Venue. This could be important for a couple of reasons. Means could ask that the charges be moved from Madison County to Fremont County and consolidated with Lori’s other charges. It might make it easier to defend these charges since evidence in the Fremont County case could make these charges moot. The other reason for a change of venue is because all of the pretrial publicity will make it challenging to seat a fair and impartial jury. To get the court to order a change of venue, Means will have to show that Lori will be unfairly prejudiced if the case remains in Madison County and that an impartial jury could be found if the case was moved to another jurisdiction. Let me illustrate. I practiced in a rural area that covered three counties with one medium-sized city and many small towns. When a woman was accused of starving her adopted child to death in one of the small towns, the story was all over. The case was reported on the local news, but in the rural county and small town where the crime happened, nearly everyone knew someone connected to the case. The court ordered the trial moved to the neighboring county where the city was located; it was more likely that jury members wouldn’t know any of the people and have heard so much about the case. In the case of Lori Vallow, because of all the national attention, it may not be possible to find a venue that is less affected by the news.
This Week: A three-part series on Chad and Lori's beliefs.
Coming soon: posts on why cult leaders are so successful and why mothers kill their children.
Have questions? Email me at info@thelorivallowstory.com.
Lori Hellis is an author and an experienced criminal attorney. Her book, Children of Darkness and Light, The Lori Vallow Story, is expected out in 2022.
