Ready? Set, Go!

Hello, Good Friends!

Thanks for all your good wishes as I traveled to visit my daughter and do the last wedding preparation for her big day in mid-May.

We are inching ever closer to Lori Vallow Daybell's trial. Do you feel, like I do, that we are at the top of the rollercoaster? I can almost hear the clank and the tick-tick-tick as the chain pulls the cars up that long steep hill, and feel the sense of being poised, motionless at the top, just before the wild, exciting ride begins.

I will attend the trial daily, so our YouTube schedule will change. I will post YouTube shorts from the courthouse a few times a day and do a complete two-hour recap on Saturdays. Follow me on YouTube at https://www.youtube.com/@childrenofdarknessandlight. I'll also be live Tweeting from the courtroom. Follow me on Twitter at https://twitter.com/lorihellis. I've been fortunate enough to find a member of our community who is exceptionally qualified and has offered to sit in the trial for me during the week of my daughter's wedding, so we'll keep up with events as best we can that week.

Both the defense and the state are filing last-minute documents. Let's talk about what has happened and what to expect.

In my last newsletter, I outlined some of the outstanding motions. The defense filed three motions with overlapping issues. At the heart of the defense argument in all three was that the prosecution had failed to provide discovery on time. Their complaints go back years. Since the first destruction of evidence charges were filed in June 2020, John Prior has complained that the state was withholding or slow-walking discovery. Mark Means made similar complaints; many times, Means demonstrated that he was out of his depth dealing with a criminal case, but he was right about some things too. In this latest hearing, held on March 21, 2023, Jim Archibald commented that he has never had as much trouble with discovery in Fremont County as in this case. The judge commented that he gave that comment a lot of consideration in his decision. The judge rejected the defense arguments that the death penalty should be dismissed because of media saturation, Lori's mental health, or the state's lack of ability to carry out the ultimate punishment. The judge did consider and give weight to the repeated discovery violations and the potential prejudice to the defense those violations created. The judge imposed consequences as a result.

Judge Boyce outlined his analysis in his Tuesday, March 21, 2023, ruling. First, he told the parties that he was focused on the discovery violations and not the other issues the defense raised in their motions. The court previously ordered that all discovery be completed before February 27, 2023. Boyce said there were three categories of discovery: that which was provided before February 27, discovery provided on February 27, and materials provided after February 27. The state argued that while the original written order was clear, the judge extended some deadlines. His remarks at some of those hearings may have led the prosecution to believe the deadline was on February 27 instead of before the 27th. The judge said he gave the state the benefit of the doubt on all but the discovery provided after the 27th. It seems the defense asked more than once for recordings of the defendant's jail calls. The prosecution responded that they would deliver the calls by July 2021. The calls were never produced. The state tried to say that because the defense knew there were jail calls, it was their fault they didn't ask for them. They also tried to justify not producing them because calls continued to be recorded daily. Both excuses are absurd. The prosecution has an ongoing responsibility to provide discovery as it occurs, even if it means downloading calls daily as they occur and sending them over to the defense, one by one. There is no question that the amount of discovery was overwhelming. More than 3000 jail calls were turned over to the defense days after the discovery deadline. The prosecution's excuse was, “oopsie, oh well, you should have reminded us, so no harm, no foul.” The judge didn't buy it. Once the judge was persuaded that the state had committed a major discovery violation and that it was possible the defense would be prejudiced by it, he had to decide what the consequence would be. Of course, Jim Archibald advocated for dismissing the case. The judge rejected that, finding that remedy too severe.

Trial court judges do not like making new law. They like clear statutes and settled precedent to guide them when deciding sticky issues. However, there is no Idaho case law to use as a guide on this issue. When analyzing an issue, the judge first looks first at the applicable statutes, then at state case law that interprets the statutes, and lastly at federal cases and cases from other states. Judge Boyce determined he had the authority under the statute to dismiss the death penalty. He then looked for Idaho case law. There are no previous cases on this issue, so he looked to the analysis in Federal case law and cases in other states. Because of the speedy trial deadline, the judge did not have the option to continue the case. After weighing all the choices, Judge Boyce ordered the dismissal of the state's Notice of Intent to Seek the Death Penalty.

The consequences of this decision are monumental. Let's look at a few.

Shorter Trial. With the death penalty off the table, jury selection should go much faster, and the trial probably be a bit shorter than expected. Additionally, there won't be a penalty phase. Lori will be sentenced to life with possible parole after ten years if convicted. This also means she will likely be transported to Arizona to deal with the charges there before returning to complete her sentence. The judge can impose a sentence as soon as two days after the verdict. Lori has served her last days in the Madison County jail. If convicted, she will wait in the Ada County jail for sentencing. If found not guilty, she will be released from the Ada County jail on the day of the verdict.

Potential Sentence. Before we panic that if convicted, Lori might be released before she dies, let's look at the possible sentences. Judge Boyce will decide the sentence. There are three different and distinct crimes at three different times, so the crimes do not merge for sentencing. That means Judge Boyce can run her sentences consecutively - one after the other. If Lori is convicted, she could get life with parole after a minimum of ten years for Tylee's death, followed by life with a minimum of ten years for J.J., followed by life with a minimum of ten years for Tammy. As a practical matter, she would serve thirty years. That's before we look at the Arizona charges. In Arizona, conspiracy to commit murder carries a maximum of life with twenty-five years before she would be eligible for parole. The death penalty is not an option in Arizona. Once Lori completes her sentences in Idaho, she will be transported to Arizona to serve any sentence there.

Impact on Chad's Trial. The judge did not dismiss the death penalty as it applies to Chad. His trial was postponed allowing his attorneys more time to investigate new evidence; a new date has not been set. The court may not reset his trial until after Lori's is finished. I'm sure there will be all sorts of motions between the time Lori's trial ends and Chad's trial starts. It's hard to understate the advantage Chad now has because Lori's trial is first. Chad and his attorney will have the luxury of previewing all the evidence and have a good idea of the prosecution's case theory. If Lori is easily convicted, that preview could lead to Chad accepting a plea.

Fewer Issues for Appeal. Throughout the pretrial process, we've heard “death is different” over and over. With the death penalty off the table, the supreme court will be less inclined to scrutinize every tiny aspect of the trial. Nonetheless, I think there is a good chance the speedy trial and discovery violations will be enough to trigger a new trial for Lori.

For those of you who keep a close eye on the court's database, you may have noticed many subpoenas, including something called a Petition for Issuance of a Certificate for Issuance of a Foreign Subpoena. This isn't about sending a Subpoena to France or any other foreign country. As we've said before, most criminal law is created and enforced by the states, and states have sovereignty under the Fourteen Amendment to the U.S. Constitution. That means that an Idaho court can't issue a subpoena and compel someone who, for example, lives in Arizona. Instead, Idaho has to file a request asking Arizona to honor their Idaho subpoena and serve it on an Arizona resident. Once that is done, if the person does not comply with the subpoena, the court can order the person arrested.

The State has filed a document titled “Response to Defendant Notice of Alibi. You may recall the defense filed a Notice of Alibi on January 5, 2023. Lori's alibi says, “1) Lori Vallow was in her own apartment in Rexburg, Idaho, when J.J. Vallow and Tylee Ryan died in the apartment of Alex Cox in Rexburg, Idaho. Defendant was with Melanie Gibb, David Warwick and/or Chad Daybell. 2) Lori Vallow was in Hawaii when Tammy Daybell died at the home of Chad Daybell in Salem, Idaho. Defendant was with Melani Boudreaux and/or Audrey Barattiero.” The state responded that the defense notice was not timely. The prosecution asked for the defense's notice of alibi on June 15, 2021, while Lori's case was stayed. The Idaho code requires that the defense responds to such a request within ten days. However, Lori's case was stayed at the time of the request. Once Lori was ruled competent and arraigned on April 19, 2022, the defense had ten days to respond. They did not file their notice until January 5, 2023. It was likely an oversight. You may recall Lori changed attorneys about the time the state filed its demand. The state further says that “all previously disclosed evidence establishes the Defendant's participation in the charged crimes of murder, conspiracy and grand theft. As alibi does not apply to a conspiracy charge the alibi disclosure is misplaced as to those charges. The state lists previously disclosed evidence and witnesses that will be called, including Melanie Gibb, Melani Pawlowski, David Warwick, Apple Business Records, Google Business Records, Shawn Derrick, Blue Sky Properties Business Records, Zulema Pastenes, Ron Ball, David Stubbs, and Ray Hermosillo.” The last three are from the Rexburg Police Department. I expect if the defense attempts to offer alibi evidence, the state will object, claiming that the notice was not filed on time.

Now, I want to address a couple of questions from followers. 

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Why does it seem that trials are more about strategy versus actual guilt or innocence? It frustrates me to listen to defense attorneys obviously twisting the truth or out right denying the truth. I am talking about cases where the evidence is very clear and damping. How do you defend a person that you yourself believe to be guilty and fight or strategize to get them off? I am a court junkie, and I watch all sorts of cases, and there are tons of lawyers that spin the truth to make their client look good. They may even admit the things their client has done, but they still try to avoid any punishment for them. This is very common in CPS cases, bond hearings, all the way to heinous murders like the Sterling Koehn case and the case of the foster mom who beat a 2 year old to death. I sometimes avoid anything the defense says, after I have watched them do this. I am not saying all defense attorneys do that; however, I find that type of thinking and rhetoric with the lawyers that are “talking heads” on certain channels. I have heard a podcast about the Lori Vallow case, argue her guilt, then argue how to get her off. Why would anyone do that? I understand the constitutional rights we have, and I agree that the prosecution should have the evidence that shows guilt. I just do not understand how one can, not only sit next to a defendant they know or believe are guilty, but then stand up and literally argue to the judge and jury that the defendant is not guilty. They are literally arguing to put them back on the street, putting others in danger. But they won the chess match, so it is ok with them. I hear “talking head attorneys” say all the time, “I only need one.” And then you get to the level of hiring people to try to stack the jury with people you can easily convince to say not guilty. Again, it seems and looks and sounds to me, like it doesn't matter if they are literally guilty, it only matters what you can say or do to get them off. It make sense to me why lawyers are seen the way some of them are. Don't get me wrong, I know for sure there are prosecutors that will do the same by trying to manipulate things, just to convict someone, regardless if they truly are innocent. Of course, there are no circumstances where “all” people of some group that are all bad. I just have such a hard time respecting the profession, as I did prior to getting involved in “trial watching.”

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I read your comment and I have to tell you this has been bothering me for ever. The fact that defendants and their lawyers who knows their client is guilty will get up and try to convince the jury that he's not guilty. How is that even legal?? I do not understand that. It's something that pisses me off so much because how is it that they will spin a story they will tell lies to get their client a lesser sentence or perhaps even deemed innocent when they know outright that this person is a murderer or a sex offender you-name-it they're going to defend this person and try to get the jury to see them as an innocent human being not a disgusting criminal. How can we even say we have a justice system? Our system is so filled with Injustice I would never call it a justice system. Thank you so much for such a well-thought-out and well expressed comment you left. I agree with you one hundred percent on the many issues and innuendos you brought up regarding this problem we are talking about. Have a great weekend.

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This is a hard question, but I'm glad you asked because we can do hard things here. I understand and sympathize with both of these questioners. I don't want to sound like someone parsing words or using semantics, but here are some important legal principles to this discussion.

Every defendant is innocent until proven guilty beyond a reasonable doubt. That's how our system safeguards our citizens from government overreach. When I represent a person charged with a crime, I am legally required to presume they are innocent. Yes, I may be privy to discovery that seems to prove their guilt, but in the eyes of the law, they are innocent until they are either found guilty by a finder of fact or plead guilty. It is the prosecutor's job to prove their case beyond a reasonable doubt. The defendant is not required to put on any evidence and is not required to prove their innocence.

The defendant may decide to put on evidence that tends to disprove the prosecution's claims, but the burden to prove the case is on the prosecution. Whether I, as the defense attorney, know facts that prove my client's guilt or not, I am legally and ethically bound to protect my client's confidences and zealously represent my client's interest. It is also my duty to ensure that my client's due process rights are protected. That means ensuring that the jury is made up of unbiased people, that the prosecutor does not introduce illegally obtained evidence, and that the judge follows the rules of evidence, allowing only the most reliable information to be presented to the jury. If the trier of fact determines that the prosecution has not proven its case, the defendant must be found not guilty. The prosecution has nearly unlimited resources to investigate a case. If the prosecution does not present sufficient evidence to convince the finder of fact of the defendant's guilt, the evidence must not exist, or the prosecutor must not have done their job. Yes, there is sometimes a difference between actual guilt and legal guilt. A person who committed a crime can be found not guilty because the prosecution didn't prove the case—notice I said not guilty, which is not the same as innocent. You are right; in our system, it does not matter whether the accused person is guilty if the government can't prove it. That's the rule of law, and that's what keeps us all safe from government abuse of power.

There is no such thing in our system as “stacking the jury.” Manipulating a jury is illegal. That said, both sides often hire jury consultants and do mock trials to try out arguments. In my opinion, jury consultants are hardly more effective than water witchers. Those who claim to be able to determine how a person might decide a case are simply pointing out individual biases. Anyone with a little common sense can find that out. Trying to determine whether a juror might find your client guilty by asking what their favorite vegetable or favorite color is, is just silly.

I have to be honest. In the 27 years that I practiced law, I found very few clients that had no redeeming qualities. In nearly all cases, I found something likable about them, even those accused of terrible crimes. As a law student, I met a serial killer while helping one of my professors with a post-conviction motion. He was pretty charming and likable. Over the years, I met many people who had inflicted terrible harm on others. There were only a handful I could not find some intrinsic human value in. While I was never naive enough to think anyone could save them all, every once in a while, if you crack the door, one gets out; I'm proud to have played a small part in a few of those escapes.

Our legal system isn't perfect. It sometimes leads to inequitable results. Sometimes innocent people are convicted, and sometimes guilty people escape accountability. Still, it's a system that assures that by protecting the rights of the guilty, we also protect our rights if we are accused of a crime.

I hope I have answered your question. 

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Lori Hellis is a criminal and family attorney who practiced law for nearly 30 years before retiring to write. Her book about the Vallow Daybell case, Children of Darkness and Light, is expected to be released in the fall of 2024.