Rob Wood Was Not Disqualified

Let's get in the weeds to find out why 

January 9, 2021
 
Hello Friends. 
 
The hearing on whether to disqualify prosecutor Rob Wood wrapped up late yesterday. The judge denied the defense motion to disqualify Wood. 
 
Some of you are curious about the legal issues and the legal argument. If that’s your jam, grab your ghillie suit because we are about to get into the weeds. 
 
Judges and lawyers rely on precedent for guidance. In this case, the issue of disqualifying a prosecutor pretrial has no precedent in Idaho. Judges don’t like making new law, so when they can’t find a precedent in their state, they look to other states. That’s what Judge Boyce did yesterday. He found a similar case from New York. Since no two cases are alike, we often have to draw conclusions from similar, but not identical, facts through analogy. 
 
Yes, there were hours of witnesses and argument. Still, the issues boil down to this: Means and Prior argued that Rob Wood’s conduct, suggesting to Summer that Lori could help herself if she talked, and badmouthing both Chad and Lori’s lawyer, was enough to get him disqualified. Prior wanted the judge to find that Wood’s conduct alone was enough to disqualify him.
 
On the other hand, the state first argued that Wood’s actions were not coercive, and even if they were, they argued the standard “no harm no foul” argument. Evans wanted the judge to find that the defense needed to prove Wood’s conduct had some effect and didn’t. 
 
The defense argued that Wood’s conduct with Summer throws all witnesses statements into question because no one knows which witnesses Wood talked to and whether what he said changed their minds about things. That was why Mark Means complained that the state had not responded to his discovery request, which was a request for a list of all the witnesses Rob Wood has talked to. 
 
There was much talk of “taint” hearings. (As an aside, ’taint has a different and vulgar meaning in urban and military slang, and my 20 years in the military makes me chuckle every time John Prior says it.) Prior is referring to a preliminary hearing to determine whether Wood’s conversations with a witness were so coercive that they “tainted” the witness’s ability to tell the truth. 
 
The judge used the New York case of People v. Paperno, 24 NY2d 294 (1981) as a road map to his decision. The facts of the case are not similar to our case. In that case, the question was whether the prosecutor’s conduct in a grand jury hearing was coercive. As in our case, there was a transcript of the grand jury hearing. The court in Paperno said there were two legal principles that applied, the advocate-witness rule and the unsworn witness rule. The advocate witness rule states that if a prosecutor is called as a witness to testify to a disputed material issue, he should be disqualified from trying the case. The court said the advocate-witness rule didn’t apply and moved on to the unsworn witness rule, which the Paperno court said required a more nuanced analysis. The rule is that the prosecutor may not inject his own credibility into the trial. Here is the heart of the Paperno case’s analysis:
 
We begin with the proposition that, on a pretrial motion to disqualify the prosecutor, it is incumbent upon the defendant to make an adequate showing that the pretrial activity of the prosecutor will render his participation in the trial unfair. A mere assertion by the defendant that he intends to question some aspect of the prosecutor’s conduct is insufficient. Rather, the defendant must demonstrate that there is a significant possibility that the prosecutor’s pretrial activity will be a material issue in the case.
 
That is the reasoning, and the rule Judge Boyce applied. Prior and Means’ burden was to show that Wood’s pretrial activity would make his participation in a later trial unfair. As the judge put it, whether Wood “engaged in conduct that jeopardized Ms. Vallow and Mr. Daybell’s right to a fair trial.”
 
The judge rejected their claim that the very act of talking to Summer should disqualify Wood and adopted the New York court’s rule that the conduct has to have resulted in unfairness. 
 
Although the first motion on this subject was filed by Mark Means, John Prior took point in the hearing. Their first witness was attorney Garrett Smith, who represents Summer Shiflett and Zulema Pastenes. Smith was questioned about the circumstances surrounding the recording. His testimony was necessary to lay the foundation for the admission of the recording. Second, they called Dr. James Davidson, a forensic psychologist who talked about the possible impact the conversation might have had on Summer. Lastly, they called Dr. Samuel Newton. Dr. Newton is a lawyer with a doctorate in U.S. history. He is an interesting character, and I think we will see him again. His doctorate area of focus is Mormon history. I suspect the defense already had plans to use him at trial; when this issue came up, they realized he could also be a good witness at this hearing because of his expertise in legal ethics. 
 
There was some interesting wrangling at the very end. At the last minute, the state moved to reopen the case and allow Summer to testify. The state filed an affidavit, explaining why they made the last-minute request. The affidavit was from Ms. Gee, who works in Wood’s office. The affidavit reported that she took a call from Summer Shiflett late in the day and then reported what Summer said. The information was offered to convince the judge that he should reopen the hearing for additional testimony. Prior objected, saying the state had their chance and didn’t offer witnesses, that Prior chose not to call Summer because he “didn’t want to put her through it,” and that the affidavit of Ms. Gee was hearsay. 
 
Hearsay is an out-of-court statement offered for the truth of the matter asserted. The statement of Ms. Gee, reporting what Summer said, is hearsay. The judge was correct to rule that Gee’s affidavit’s hearsay could not come in at the hearing. The judge also ruled that he was not going to allow the last-minute testimony. 

Here is where I think DDA Evans let his side down. There are numerous ways to justify reopening a case. Every time a lawyer files a motion with the court, they must cite the law that allows them to ask for the relief they request. Every state has rules of procedure that govern how the court operates. In most states, Idaho included, there are both rules of civil procedure and rules of criminal procedure. And, as in most states, many of the civil procedure rules also apply in criminal cases. These rules are pretty esoteric (but we’ve got our ghillie suits on, right?) and have to do with how you modify the initial pleadings, add parties, conduct discovery, and how you conduct a trial. Within those rules are provisions for when you can reopen evidence in the case. There were plenty of other actual procedural rules that could have been the basis for Evans’ motion to allow Summer’s testimony. Instead, he cited a rule of professional conduct. The rules of civil and criminal procedure govern how judges conduct trials, and they bind judges. Professional conduct rules are ethical rules that govern attorney conduct and how the bar association deals with violations. The rules of professional conduct are not justification for a motion, and a judge has no authority to enforce them; only the state bar association can do that.  
 
The law favors a beginning, middle, and end to hearings and trials and discourages reopening testimony once a party rests. Prior argued that both he and Means were required to disclose all their witnesses and exhibits in advance, and the late offering of new testimony amounted to an ambush.  The judge agreed. 
 
Despite Evan’s mediocre performance, the judge found the law was on Wood’s side and denied the motion to disqualify Wood.
 
As I watched some of the comments about the case scroll by during the live feed, I decided  I need to respond to a few. 
 
I began this newsletter because I wanted people to have a place where they could find clear-eyed explanations of the complex legal issues associated with the case. I hope I have provided that, and that going forward, you’ll look to this newsletter for reliable information. 
 
I understand this case engenders a lot of passion and that when these hearings happen, people approach them with a lot of emotion. Our system is designed to protect the rights of the little guy against the government abusing its power. Sometimes that means that guilty people get a break. Erring on the side of fairness and caution isn’t being easy on crime; it’s protecting the system we all rely on and cherish.
 
Judge Boyce was not “useless.” He acted just as I expected him to. He was not too easy on anyone, and the hearing was not a waste. The defense attorneys raised an issue that they believed was in their client’s best interest. It’s their job to raise those issues and preserve them on appeal. A judge listened to the issues and arguments, applied the law, and made a decision. 
 
Both John Prior and Mark Means did their jobs competently. Yes, Mark Means is inexperienced in criminal law, but he is not an altogether inexperienced lawyer. He acquitted himself nicely in this hearing. Yes, John Prior looked grumpy. I, myself, have what many call a “resting bitch face.” When a lawyer is working hard in the moment to follow the hearing, take notes, and formulate arguments on the fly, we don’t have time to pay attention to whether we have a pleasant look on our face. Yes, it’s hard for some to hear John Prior talk about ethics because he was charged with a felony for inappropriately touching a woman. He agreed to plead to a lesser misdemeanor charge in the middle of his trial, and because the conviction was for a misdemeanor and not a felony, he can continue to practice. No, I don’t think he looked or sounded drunk in the hearing. Yes, he has a couple of annoying verbal tics. Most lawyers do. We develop them in place of the uhs and ums that are part of everyday speech. Mine are “so” and “well,” his are “quite frankly” and “quite honestly,” and yes, they are annoying. So annoying, in fact, that I would not recommend turning them into a drinking game if you hope to get through an entire hearing without blacking out. I practiced with a lawyer who dropped his hands on the table to punctuate his speech. Now that was annoying. “Your honor, BANG, I don’t believe the police can demonstrate their search BANG was lawful under the fourth amendment BANG and that their intrusion into my client’s home BANG was a violation of my client’s BANG fourth amendment rights BANG against illegal search and seizure BANG.”
 
The state of Idaho requires that attorneys who represent defendants in capital cases be certified by the state. The specific requirements for certification are set by the state, and the state maintains a roster of those who are certified. Neither Prior nor Means are on that list. If and when Chad Daybell is charged with murder, it is possible that Prior could act as a second to Chad’s lead capital attorney. If it’s accurate that Mark Means has never tried a felony, he would not be qualified to act as a second to Lori’s lead capital attorney. 
 
Some significant things came out of the recording and this phase of the case, and I don’t want to overlook them.
 
Wood told Summer the state of Idaho is close to filing murder charges. He also told her that although the decision had not yet been made, the death penalty was on the table for both Chad and Lori. He told Summer that they had a strong case against Lori. We can question Wood’s motive in giving Summer this information, but we can’t discount its significance. For people who have expressed concern about whether either will ever be held accountable, the answer appears to be yes, they will. 
 
One of the most powerful witnesses against Chad and Lori may be Zulema Pastenes, and that’s the other significant piece of information from all of this. Zulema signed an immunity agreement in exchange for her testimony. I don’t want this to get lost in questions about the hearing. Zulema married Alex just two weeks before his death. If, as many expect, Chad and Lori try to pin everything on Alex, Zulema is the key. She may have information to refute that claim. Even if Alex was the primary actor, she might provide a lot of information about the conspiracy. Is it possible that Zulema and Alex’s marriage was more than just a marriage of convenience because the prophet told them to get married? Perhaps Zulema cares enough about Alex that she doesn’t want his memory blackened after his death. We don’t know the extent of Zulema’s involvement. While Charles and Alex both died in Arizona, Zulema may have some criminal exposure in Idaho under the conspiracy theory. That may have been the real reason Wood was in Arizona, to broker a joint immunity deal between Arizona, Idaho, and Zulema. It could be that meeting with Summer was just an afterthought because Garrett Smith also represented her. 
 
I don’t know about you, but this ghillie suit is making me sweat. As always, email me with questions and comments.