Unseal those lips!
Hello, Friends!
There are a few things to chat about. First, I filed motions concerning the court’s habit of sealing documents. Next, a hearing is coming up on August 16, 2023, to deal with other motions. So, as my friend Scott Reisch would say, “let’s talk about it.”
Those following the case know there have been many sealed documents and closed court proceedings in this case. The ease with which the judge seals documents didn’t seem right, but I wasn’t familiar enough with Idaho law to say for sure. Finally, one day, I sat down and did some legal research and discovered I was right. The judge is not following the law. Because access to courts is a fundamental right of the press, members of the media have a legal right to intervene in court cases for the limited purpose of objecting to sealed documents and closed court hearings. As an author, I’m a member of the press. As a retired attorney, I know how to research, write and file motions, which puts me in a unique position. If you want to read the motions’ text, you can find them at https://coi.isc.idaho.gov/.
Here is the gist for those who don’t want to read all the many pages of legal argument. The U.S. Constitution and the Idaho Constitution recognize the first amendment right of the press to access government records, meetings, and hearings. There is a presumption that government should operate openly and transparently so that we the people can assure that our public servants are conducting our business ethically and fairly. In Idaho, there are laws and rules that control the release of government records. The presumption in those laws is to release all records unless they fall into specific exceptions. The rules also say that before a judge can seal a record, they must first give all the parties and other interested people notice and then hold a hearing to determine whether sealing is necessary. Additionally, the rules say the court must consider whether some other less restrictive option, such as redaction, is possible. In the dozens of instances of Judge Boyce sealing documents and hearings, he never once held a hearing before issuing an order to seal the documents.
One set of motions, in particular, distressed me. These are the motions about whether or not Special Prosecutors Rob Wood and Rachel Smith should be removed from the case. The very purpose of the first amendment is to ensure that the people we elect to do our business are competent and honest. How can we, and even more importantly, the victims’ families, trust that the cases are correctly prosecuted if the judge bars us from seeing documents that touch on the prosecutor’s fitness? For me, that was the final straw. I filed the motions on July 30, 2022. There is always a three or four-day lag between the time documents are filed with the court and appear in the court database, and the time they are listed on the Idaho Judicial Branch’s Cases of Interest page. Once the documents were available to the public, many people were very interested.
If you follow true crime on YouTube, you’ve undoubtedly heard of CrimeTalk with Scott Reisch. Scott is a Colorado attorney, and his show features cases in the news. He invited me to be a guest on his show. That episode premiered on August 9, 2022. You can see it here https://www.youtube.com/watch?v=amM2LVTfWYY. The court hasn’t set a date yet to hear my motions, and none of the attorneys has filed a response to them.
There is a hearing happening at 9 am on August 16, 2023. That hearing will decide the prosecution’s motion to perform the consumptive testing. The judge will also decide on Jim Archibald’s motion to remand the case back to the grand jury because of the error of charging two crimes in one count. The indictment combines conspiracy to commit murder and theft by deception into count one. Archibald is right; crimes cannot be combined and must be charged as one count for each separate offense; to correct the error, the grand jury will have to be recalled and issue a superseding indictment on which the defendants will need to be re-arraigned. This hearing will be the first time both defendants and all the lawyers will be in court in person. I am planning to attend.
Chad’s attorney, John Prior, has objected to the state’s request for consumptive testing. The objection includes an affidavit from his expert, who got several facts wrong, that undermines his credibility. It’s always important for the lawyer to assure their expert is fully informed before making statements. The expert is correct, though; if the substance on the tools in the shed turns out to be Chad’s blood, it proves nothing because Chad used those tools and could have deposited that blood at any time.
People have asked why there is so little forensic evidence to test. Remember, the material the prosecution seeks to use up in testing is probably a fraction of the state’s forensic evidence that has already been tested. Let’s also remember that the children disappeared in September, but their bodies were not recovered until June. Forensic evidence degrades over time, especially when exposed to harsh weather conditions like a Rexburg winter.
I want to clear up a few questions and a bit of a misunderstanding. Lauren and John Matthias have a YouTube channel called Hidden True Crime. I appear as a guest on their show to provide legal analysis about the Daybell case. I don’t make programming decisions about their show, and they don’t make decisions about how I conduct my work on my book. I didn’t discuss filing motions with Lauren and John; they were not involved in the decision and did not join in the motions.
Many people have asked why one of the other media members covering the case didn’t object to the sealed documents and hearings. Journalists have a delicate tightrope to walk; on the one hand, they’re responsible for ensuring the public has factual information upon which to make informed decisions about their government. On the other hand, it’s also important for them to cultivate and maintain good relationships with those same government officials because journalists may need sources for other stories. It’s particularly true in smaller towns. Journalists are also taught not to make themselves part of a story they’re covering, so they can remain objective. I don’t fault anyone else covering this story for not taking action to get the court to unseal the records. We all make individual decisions based on our own situations. Justin Lum from Fox10 Phoenix and Nate Eaton of East Idaho News have done fantastic work on this case and should be commended. Justin won an Emmy award for his coverage.
