This Week's Recap - Continuances and Motions to Sever
Hello Friends! It’s been a busy week for me, writing three newsletters! On to number three!
First, though, I want to give you an update on the status of my book. Nonfiction books, like mine, Children of Darkness and Light, The Lori Vallow Story, are sold on a book proposal rather than a completed manuscript. The author creates a proposal that outlines who they are, what the story is about, who their audience will be, and provides sample chapters. My proposal finished at 60 pages. Once the proposal is completed, the author or their agent sends the proposal out to publishers, hoping to interest one in buying the book. I explained all of this because my agent began submitting my proposal to publishers this week. It’s exciting and nerve-wracking because a good book deal will allow me to devote my full attention to telling the whole story once the trials are over. So please send some good energy into the universe on the book’s behalf, and I want to thank everyone who has supported the newsletter and the future book so far.
I love getting questions from readers, and lately, my inbox has been full. Tyler Burton asked, of the motion to sever the trials, “How does this interface strategically with Chad’s defense. possible separation of trials. possible change of venue, possible divorce? I imagine it can be used for Chad’s defense to some extent, too?”
Well, Tyler, you’ve anticipated the focus of today’s newsletter. A few things happened this week that are important. First, there was a status hearing on September 8, 2021. All the lawyers and Chad Daybell were present. First, Judge Boyce took up Lori’s case. He reported that he had received the full report from Lori’s treatment provider and was satisfied that Lori was still incompetent and needed more time for treatment. The judge continued her commitment for an additional 180 days (six months) but said that they would revisit his order if she became competent sooner.
The judge then turned his attention to Chad’s case and reviewed all of the pending issues. In every case, the defense can and should challenge any defects or deficiencies in the charging process, including how the grand jury was conducted and whether the charging indictment is correct. If those challenges aren’t filed before other more substantive motions, they can be presumed to have been waived. The judge recognized that it isn’t possible to formulate those objections without a complete transcript of the grand jury. The judge said he had been told it was nearly finished, but not quite. He granted John Prior extra time to file any of those motions. The judge also decided on his own motion to continue Chad’s trial that was scheduled to begin on November 8, 2021. As you may recall, Chad waived his speedy trial rights.
The reason the judge continued the trial is that there are several pending motion hearings. The state filed a notice about lab testing. They notified the defense that certain testing would require using up some small forensic samples. The judge has set a hearing on September 20, 2021, to deal with that issue. A hearing is scheduled for October 5, 2021, at 9 am on Chad’s motion to change venue. The judge cited these pending motions and the new motion to sever the cases as sufficient reason to vacate the November trial date. The judge said he would set a new trial date after the decision in the change of venue motion.
Probably the most significant development was the motion to sever the cases. I have discussed joinder and severance in several previous newsletters. In short, cases are joined for judicial and prosecutorial efficiency. Trials are severed for fairness. If there is any chance that the evidence against one defendant could prejudice the other, the cases should be severed. Here is the Idaho rule:
Idaho Criminal Rule 14. Relief from Prejudicial Joinder
If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in a complaint, indictment or information, the court may order the state to elect between counts, grant separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the state to deliver to the court for inspection in camera any statements or confessions made by the defendants that the state intends to introduce in evidence at the trial.
Many readers have asked if I think the motion to sever telegraphs Chad’s trial strategy. I think, when added to his children’s comments in their recent 48 Hours interview, it may. Severing the trials means that only evidence relevant to the charges against Chad will come in at trial. It means the jury will not be watching the body language of a mother who allegedly killed her children during Chad’s trial. It also means that Chad can raise any defense without Lori sitting next to him. More importantly, without Lori’s lawyer presenting rebutting testimony and turning the whole thing into a he said/she said battle.
I think this may signal a change in strategy and perhaps even a change of heart for Chad. Nothing makes reality come crashing in faster than a notice that the prosecutor intends to seek the death penalty. I am not sure if he has come around so far as entertaining a plea offer, but clearly, he’s come around enough to be willing to throw Lori under the bus with an “I was framed” defense. It’s hard to gauge whether such a defense could be successful because we can’t see all the evidence. If there are incriminating text messages, it may be hard to make the case that Lori and Alex did all the dirty work and set him up to take the fall. I think the “I was set up” argument is harder to make when it comes to Tammy’s death. I suppose he could argue that he was manipulated by Lori, taken in by her feminine wiles, all the while unaware that she was a schizophrenic who manipulated him into believing her delusions were messages from God.
Recently, a reader called me out on describing possible arguments the defense could make. Please know that when I talk about viable arguments the defense might make, I am not expressing an opinion about the case or saying that I would make that argument if I were Chad’s attorney. I’m only illustrating the place where the facts and the law intersect.
When I was in practice, an attorney I knew had the best win/loss record among the local defense bar. He also was notorious for making arguments that most of us would have been embarrassed by. We called them the arguments you needed to put a bag over your head to make. But his win record was better than anyone else’s because occasionally, he’d win on one of those silly arguments. That’s sometimes that way it works. Just because I point out a possible argument does not mean the defense will or should take that position. It only means the law and facts could support the argument.
