What are all these motions about?

January 27, 2021

Hello! It's been a minute since there's been a new development in the Lori Vallow case, but documents and more documents have dropped this week.

The sudden surge of documents from Mark Means is just another example of his lack of criminal law experience.

One of the most significant places that criminal and civil procedural rules are different is in the area of discovery.

Discovery materials are books, papers, records, recordings, photographs, videos, interviews, and much more. Any tangible item that contains information about the case is discovery. In civil cases, the discovery rules allow many more opportunities to ambush your opponent. In criminal law, the seminal case of Brady vs. Maryland, 373 U.S. 83 (1963) established the requirement that ALL materials, including information that proves the defendant’s innocence, must be disclosed by both sides. If the prosecutor fails to turn over information in his possession, that evidence will not be allowed at trial. Because of these rules, discovery motions, while common in civil cases, are rare in criminal cases.

Because Rob Wood is legally required to turn over all relevant information, Means should not need to file motions to compel discovery. The prosecutor is not required to point out or highlight information or indicate the information he finds important in any way. The prosecutor is required to organize the information in a reasonable form. You can’t just take thousands of pages of paper, toss them in a box in any order and hand it over. The prosecutor must make sure that the information is in a useable form. These days that means each piece of evidence is usually in an individual file on a digital storage device or is transmitted electronically directly to defense counsel.

Means sent a request to Rob Wood on December 17, 2020, for discovery. Wood’s response was to say that he had sent all relevant discovery, but he would resend everything out of an abundance of caution. Presumably, that is what was on the hard drive John Prior received. Because there is a reciprocal duty to disclose evidence, discovery disputes are unusual. In general, if there is an error or oversight, a simple telephone call or email is sufficient to correct the problem and obtain the materials. Means should have been able to call Rob Wood and let him know he had not received his copy of the hard drive.

The collegial relationship between a prosecutor and a defense attorney is based on mutual trust. It’s a relationship best summed up by President Ronald Reagan, who famously said, “trust but verify.” Trust is a delicate thing and is easily compromised. No doubt, Mark Means’ recent effort to disqualify Rob Wood and his continuing attacks on Wood’s professional character has eroded what little professional relationship they may have had.

There are professional relationships between attorneys that are so fraught with hostility and mistrust that the only safe place for them to communicate is in front of a judge. It may be that the relationship between Means and Wood has reached that point. It’s a frustrating situation that can cause the best lawyer to make the odd impatient remark. To his credit, Wood appears to be taking the high road most of the time, although he did make some unnecessary remarks to Summer Shiflett about Means’ competence.

Realistically, like Dorothy had the power to go home all the time by just clicking the heels of her ruby slippers, Wood has the power to make Means disappear any time he wants. Once Wood files murder charges, both of the current defense attorneys are disqualified. Those who theorize that Means is angling to be fired might be right. It seems like the golden couple is out of money, and no one likes working for free.

Many people wonder why Rob Wood is waiting. Like most prosecutors, Wood plays his cards close to the vest. His thought process is one of the things I hope to explore when the case is over, and I’m able to interview people for the book. I speculate that he is waiting for the autopsy reports on the children. As we know from his conversation with Summer, Tylee’s remains were sent to the FBI lab, and Wood told Summer that process could take a long time.

There were other documents filed this week. Wood filed a notice identifying an expert he plans to call at the hearing on the change of venue, and Wood filed motions about access to his client. Let’s get Wood’s expert out of the way first. Chad’s attorney, John Prior, and Lori’s attorney Mark Means had some sort of survey done to determine how many people in the Rexburg area had heard about the case and formed an opinion about innocence or guilt. Presumably, the results of that survey were included with their motion to change venue. Wood is challenging the science, or lack of it, behind the survey methods. It appears to be a careful move to head off any later challenges on appeal because I doubt Wood opposes a change of venue. Wood wants a clean trial without the chance that the convictions will be overturned because of a jury pool tainted by pretrial publicity.

Mark Means also filed another motion about access to his client. I see both sides of this problem. Like most jails, inmates visit through glass and talk through a telephone system. All of their conversations, other than those with their lawyers, are recorded. In some jails, there are separate places for attorneys to meet with their clients. While the attorney and client are still required to communicate by phone through glass, there is a desk surface, and some even have a slot to pass documents back and forth. Jails also have rooms for private face to face visits between lawyers and their clients with prior arrangement. It doesn’t appear that Madison County jail has separate attorney rooms. Means reports that from March 2020 until June 2020, he could only meet with Lori through the glass. Then, apparently, in June 2020, Means began meeting with Lori face to face. But, when he arrived at the Jail in January 2021, he was told he could, once again, only meet with his client through the glass, using the phone system. It appears to be because of COVID-19 restrictions. Means points out that the jail has previously recorded his calls with his client, which makes him suspicious that they will do so again. He also points out that when his client is allowed to talk on the telephone with him, there is always a deputy nearby. Means is right – any defendant must have free, unfettered, and confidential access to their attorney.

The case against Lori Vallow includes a lot of data, including a lot of digital records. In this kind of issue, the lawyer must have use of his laptop and a decent wifi connection to review the evidence with his client. That’s hard to do when the lawyer sits on a stool talking through a phone while juggling his laptop. As you can see from the picture, there is nowhere to rest the computer and no way to show it to his client. Means is asking for his client to be allowed a cell phone so that she can speak to him anytime she wants, presumably with more privacy—that’s problematic. I’m sure we can all think of scenarios where a cell phone in the jail could compromise security, even if the phone is somehow restricted to only allow her access to her attorney.

Means may have a good argument for everything, but here is the problem: the judge does not have the authority to order the jail to do anything. That’s right, the judge can suggest and request, but he has no authority to order, so Means’ is barking up the wrong tree, so to speak.

Over the years, I had the best success when I had an excellent rapport with the jail supervisor. The jail never wants to be the reason an inmate gets a new trial or wins an appeal, so they are willing to work with you. Still, it comes down to trust. If you have a reputation as a defense attorney who follows the rules, you often get some leeway. As an example, I represented a young man in a very serious case. He was a juvenile, being tried as an adult. My client was a somewhat quirky guy with some very serious trust issues, and I found it hard to establish enough of a relationship with him to have a serious discussion. After several visits, the only thing I knew about my client is that he was craving a Starbucks mocha. I had a chat with the duty supervisor, who permitted me to bring my client a coffee drink. I got that break was because I had consistently shown that I was a lawyer who followed the rules when it came to contact with my clients. The coffee did the trick. It was the chink in my client’s armor that opened the door.

For all these reasons, I don’t think Means’ motions are going anywhere, and his actions beg the question, why is he spending his client’s nonexistent money filing them?

Judge Boyce will hold a hearing on Means’ Motion to Compel Discovery on February 17, 2021, at 9:30. I expect at that time, Rob Wood will come to court with proof that he has given Means all the discovery he is entitled to, and the hearing will be brief and pointless. No hearing has been set on his other motion about jail access, but it would not surprise me if it’s set at the same time.


Thanks for all the messages, I do answer every email. I hope you are all staying safe and avoiding the worst of the winter weather. We even had snow flurries in Phoenix!