Recordings and documents and motions, oh my!
July 28, 2021
Good Day, my friends.
There is a lot to talk about, and this newsletter might be longer than usual.
Before I dive in, though, I want to take a minute to address some true-crime community drama because you all have been asking. It seems that Lori's attorney, Mark Means, has been exchanging a lot of information with YouTube creator Awen Rees. I'm not going to respond to questions about my personal experience with Awen; I choose to focus on the case and the victims, but many of you have asked about the impact on the case. As I understand it, their relationship has been going on for some time; I don't know what information they have exchanged. Still, I want to put your mind at ease; it's doubtful that these circumstances will cause a problem in prosecuting the case. However, the exchange of information may cause problems for Means and Rees. Many people seem to think this might be grounds for a mistrial. As I've explained before, a mistrial only occurs if misconduct occurs after a jury is empaneled. The situation is not grounds for an ineffective assistance of counsel appeal either. Ineffective assistance of counsel only gets a defendant an appeal if they can prove that the case's outcome would have been different but for the defense attorney's actions. That's a strict standard to meet.
Now that we've dealt with that let's talk about what happened this week in the case. There's the motions filed by John Prior, the recorded telephone call between Melanie Gibb and Sharie Dowdle, the looming death penalty deadline, and the massive 2500-page document dump.
Prosecutor Rob Wood has until August 8, 2021, to file his intent to seek the death penalty in Chad's case. As I've said before, I will be surprised if he does not file the notice because of the way the Idaho sentencing statute works. A defendant can only be sentenced to true life – life in prison without the possibility of parole – if the prosecutor sought the death penalty. They only get to true life if the prosecutor deals on the death penalty or a jury determines there were mitigating circumstances and decline to impose it. The statute requires that the prosecutor file the notice within 60 days of the defendant's arraignment. The law is silent on whether the notice can be filed before arraignment, but constitutionally, I believe a prior filing could be challenged. Defendants are entitled to due process. One layer of due process is the necessity to assure the defendant knows and understands the charges against them. While a death penalty notice might survive a challenge if given after the first appearance, I don't believe it is permissible to notice a defendant of the intent to seek the death penalty before there is even an initial hearing. As you might recall, Lori's initial hearing was postponed because of her mental condition. The death penalty notice is more than just a single sentence. The notice contains a list of the aggravating factors that the prosecution will prove. It's a document that requires research and thought. It will also contain information that the public may not have seen before. Every time something is released to the public, it makes seating an unbiased jury more difficult. These are the reasons why Wood will probably wait until the last minute to file the notice.
Chad's attorney, John Prior, filed two motions this week, neither especially surprising. First, he filed a new motion to change the venue of the murder case. The motion wasn't unexpected, and I think the motion will be granted. Second, Prior filed a motion for a transcript of the grand jury proceedings. Grand jury proceedings are secret, but both the defense and the prosecution are entitled to the recordings and transcripts. It, too, is a motion that the judge should grant.
Recently, a lot of information has come out, and some of it is pretty shocking. First, there is the recorded phone call between Sharie Dowdle and Melanie Gibb. Sharie was a fan of Melanie Gibb's book, Feel the Fire, and had corresponded with her on Facebook. They have never met, and Sharie says they had one phone conversation that Melanie initiated. Sharie recorded that fifty-minute conversation. If you watch Lauren Matthias's interview with Sharie, the picture of how the recording happened and what she did afterward becomes clear. Sharie admits to being somewhat gullible, and she was fearful of what she heard. She gave a copy of the entire recording to the police. A copy of the complete recording was then included in the discovery materials sent to the attorneys. Sharie later sent a twenty-minute portion of the call to Annie Cushing. When Annie told Sharie she could be in trouble for recording the call; she deleted everything she had involving the call. Sharie later learned that YouTube creator, Awen Rees, had a copy of the full fifty-minute recording. Sharie says Awen could only have obtained the recording from police or from one of the attorneys who got it in discovery. The whole recording was released in one of the Facebook groups. Jess Nelson, Awen Rees's co-host, confirmed that Rees obtained the recording from Mark Means. Rees now admits that she was communicating with Means.
The call is chilling for many reasons. First, it points out how information can leak. Second, the content itself is disturbing. Melanie clearly says that Lori and Alex planned Charles's death and intended to make it look like self-defense. Melanie also says Lori told her both children had "gone dark" and then says, "you know what happens to people who go dark." She later comments that she doesn't believe the children are alive. The recording was made early in 2020 when the children were still missing. Melanie's blasé tone when discussing the events is troubling. You can listen to Lauren's interview with Sharie at https://www.youtube.com/watch?v=An85UC7JUIM; the recording of the call is available here https://youtu.be/Ju4GFKR8Vns.
Then, there is the HUGE dump of 2500 documents that Fox 10's Justin Lum obtained by requesting them under the Freedom of Information Act (FOIA). Many have asked if we will see a similar release from Idaho. I'm sure that similar FOIA requests have been made to them. There are exceptions to what must be released under FOIA. Federal agencies must disclose any information requested under the FOIA unless it falls under one of nine exemptions that protect interests such as personal privacy, national security, and law enforcement. States have similar laws. Idaho Statute 74-105 says, "Investigatory records of a law enforcement agency, as defined in section 74-101(7), Idaho Code, under the conditions set forth in section 74-124, Idaho Code" are exempt from release. It may be up to a court to determine whether Idaho's information falls into one of those exceptions. It seems to me Idaho might be more likely to fight the release than Arizona was. At that, Arizona did redact a great deal of information in the documents.
The documents that were released contained many redactions, and there were many duplicates. That's typical of discovery. Every agency involved turns over their part of a case. If there is communication between the agencies, the discovery may contain the same communication repeatedly received from everyone to who it was distributed. There were some very interesting highlights, particularly in piecing together what really happened to Charles Vallow. It appears that Alex Cox waited for 43 minutes for Charles to die before calling 911. While he waited, he called Lori. When Lori left the house, she took Charles's rental car and his phone. Lori had plenty of time to go through Charles's phone and get her story straight with Tylee before returning.
The police reports that document the interviews with Lori, Alex, and Tylee are also interesting. Tylee's statement seems very coached. I think Lori spent the time she was taking JJ to school and buying flip-flops to nail down Tylee's statement. She didn't have as much time to practice with Alex, though, and their statements have some significant factual differences. We also learned a lot about the internal dysfunction in the Cox family from a letter written by Nicole Cox, Adam Cox's wife.
We saw the texts and emails to law enforcement from Kay Woodcock. What comes through is the anguish the Woodcocks were feeling over not knowing where JJ was.
Please keep all the victims in your thoughts and prayers.
