Updates! Data Dumps! And Means' latest motion October 27, 2021

Hello Friends! No, you have not been inadvertently unsubscribed to the newsletter; I haven’t sent any recently. There are several good reasons why not. First, I hate to fill your inbox with emails that are nothing but repeats of old information – take note, Dateline. Second, I took a vacation to Oregon for a lovely week-long visit. Third, I am editing the final page proofs for my last book, The No Nonsense Guide to Divorce, which will be released in March 2022. And then, of course, there are the 2000+ documents and video files the Chandler police dropped a week ago and Mark Means’ new filing.

Finally, and most exciting, I have accepted an offer from Pegasus Books to publish Children of Darkness and Light, The Lori Vallow Story. This development and a few other related life developments have led to a BIG decision. My husband and I will be moving to Boise, Idaho, in the spring for at least a year so I can attend the trials and be closer to the sources. So those of you in Boise and Rexburg – I want coffee dates!

For all of you who have been asking about the Justice For Tylee and JJ bracelets, I plan to offer them free to my newsletter subscribers and will announce details soon.

Whew, that’s a lot! Now let’s talk a little about the case and the people at the heart of the story. Many of the documents Chandler released were duplicates of previously released information, but there were some interesting revelations, such as the text messages between many people involved. For example, there was the awkward love story that Chad sent Lori in a series of texts, which was proof once again that he should never have given up his day job to become a writer. If you want an amusing listen, catch Lauren Matthias of Hidden True Crime reading the series of texts to her husband, Dr. John Matthias.

The Idaho Supreme Court ordered that the Vallow/Daybell trials take place in Ada County and that Judge Stephen Boyce remain the assigned judge. The Ada County courthouse is in Boise. There was also a hearing last week that may have slipped under most people’s radar. The hearing was a status conference requested by the prosecutor on an expedited basis. The hearing was ordered sealed, so we can only speculate about what they discussed, but I am willing to make a semi-educated guess. On September 23, 2021, the court issued an order following a closed hearing on September 14, 2021. The court’s finding was that Lori Vallow Daybell remained incompetent, and her commitment should be extended. There was also a request by the state to order her forcibly medicated. There are no other orders that address the issue of medication, so I suspect that the status conference on October 21, 2021, was to address those concerns. If that is the case, I would expect an order to be issued by the court, probably under seal.

I share everyone’s frustration at the number of sealed hearings and documents. I hope to address the issue of the constitutionality of all of these sealed hearings and filings in a newsletter soon.

In addition to Chad’s steamy texts, there were many enlightening texts between Lori, Zulema, and Alex. I’ll be talking about those texts and their possible use in the trials in a future newsletter.

When I began this newsletter, I thought there wouldn’t be much case news to report. I had no idea we’d get an interesting new filing from Mark Means today! To quote that podcaster, “let’s talk about it.” If you haven’t seen the document, here is a link to Justin Lum of Fox News 10’s post:
https://www.facebook.com/photo/?fbid=444979103659585&set=pcb.444992133658282

Just to recap for anyone new to this, Judge Stephen Boyce ruled that Lori Vallow Daybell was incompetent and committed her to the care of the Idaho Department of Health and Welfare (IDHW) for treatment. The treatment is aimed at restoring Lori to competence so she can participate in her case. Lori’s attorney, Mark Means, expressed concern early about her treatment and filed a demand with the court that he be involved in her treatment decisions. While his demand was unusual and unlikely to be granted, his concerns may have had a sliver of reasonableness. Now I know many of you dislike Mark Means, and I am far from his biggest fan, but I also insist on pointing out when he’s even marginally correct, despite his atrocious spelling and grammar. So Means might be justified in being upset, but he’s probably upset at the wrong people and demanding the impossible.

Here is what we can gather from the filings. Lori was watching the video feed of Chad’s change of venue motion. She was watching with a clinician who has been identified as “N.C.” During that hearing, N.C. recommended that Lori contact The Church of Jesus Christ of Latter-Day Saints (LDS) to discuss her case and ask for help in getting legal counsel. Remember, Lori is currently represented by Mark Means, who is retained (the specific terms of his retainer agreement with Lori are unknown), and Jim Archibald, an experienced court-appointed death penalty lawyer. Lori said she didn’t want to make that call, but N.C. Googled the phone number in front of Lori and gave it to her. Clinicians in the treatment facility routinely give patients “homework” to complete as part of their treatment plan. N.C. later told Lori that making a phone call to the LDS church was part of her homework. N.C. even coached Lori on what to say when she made the phone call. According to Means, Lori believed the completion of the homework was mandatory.

Lori placed the call to the number that was given to her. She told the receptionist who she was and that she was seeking legal assistance with her criminal case. According to Means’ motion, Lori’s call was transferred to someone named Daniel S. McConkie. Means alleges that Mr. McConkie told Lori he had “30+ years of criminal litigation as a prosecutor” and that he knew “every detail of her case.” Means claims that these assurances led Lori to make disclosures that she would not have otherwise made. (I interpret this to mean Lori made incriminating statements.) Means claims that McConkie never told Lori that he could not give her legal advice because he is not licensed in Idaho or that their communication was not protected by attorney-client privilege.

Now, this part is interesting. The Utah Bar Association lists sixteen McConkies, and those familiar with LDS history will tell you McConkie is a common name. There is a Daniel S. McConkie, admitted to the bar in 1984 and listed as a partner in Kirton McConkie. The Kirton McConkie website says Daniel S. McConkie is a member of the Insurance and Litigation sections of the firm but has an extensive background in criminal prosecution and defense. There are other McConkies listed who are or have been members of the Kirton McConkie firm. Specifically, there is an Oscar, admitted in 1952 and listed as deceased, and what appears to be his son, Oscar Jr., admitted in 1980 and listed as inactive. There is also a David McConkie, whose status is listed as SuspNP. Experience tells me this designation means suspended for non-payment, probably of bar dues. A Daniel S. McConkie Jr. is a professor at Northern Illinois University (NIU) College of Law. He is about the right age to be the elder Daniel’s son and has been a visiting professor at the J. Reuben Clark Law School at Brigham Young University. His profile on the NIU website indicates he has experience as both a federal and state prosecutor and teaches criminal law and procedure. All this leads one to wonder, who in the hell did Lori Vallow talk to? Was one of these two Daniel McConkies working at LDS Church headquarters in Salt Lake City and available to take Lori’s call when the receptionist transferred it? Or, has Mark Means simply gotten the wrong end of the stick once again?

Means claims that the LDS attorney, who may or may not be Daniel S. McConkie, told Lori he would get back to her and promptly called Prosecutor Rob Wood instead. According to Means, McConkie told Wood about the statements Lori made. Presumably, those statements were incriminating; otherwise, Means wouldn’t be in such a sweat. Then, to add insult to injury, Wood called Lori’s court-appointed lawyer (who Means identifies as Mr. “Archibal”) and not Means, to tell the defense about the unsolicited call from the LDS lawyer. Means claims that Wood minimally told Lori’s defense co-counsel that Lori “wishes for a ‘new’ not stated appointed attorney,” whatever that means. Means also says he believes his co-counsel, Archibal(d), called and spoke to McConkie.

When Lori later told N.C. that she’d made the call, N.C. said “good,” but, according to Means, expressed concern when Lori told N.C. she had told Means about the call. I’m about the read between the lines and speculate a bit. I think it’s likely that N.C. had some well-founded concerns about the quality of the legal representation Lori is receiving. It’s possible that to help Lori remain grounded in reality and begin to take charge of her case - and knowing Lori is a devout LDS follower - N.C. suggested Lori ask the Church for help in finding qualified counsel. Lori has been excommunicated from the LDS Church for apostasy, and I have my doubts about whether the Church would be of any use to Lori, but N.C. may not have known that.

Means motion claims that Lori is obsessed with the LDS religion and believes that the Church controls everything, including the Idaho legal system and that the clinician’s suggestion was illegal and unethical. (Again? This is his go-to claim.) So let me break it down.

Was it unethical for N.C. to assign Lori the “homework” of calling the Church? This one is hard for me to say. I’ll defer to the mental health experts – perhaps Dr. John Matthias will weigh in? But as I see it, it could be that N.C. was working with Lori on being grounded in reality and taking charge of her case. It’s also possible Lori herself has expressed concern about the quality of representation she is receiving. If that’s the case, then N.C. encouraging Lori to make some phone calls makes sense. The suggestion to call the LDS Church was undoubtedly ill-advised, but N.C. may not know as much about this case as we do.

Was Prosecutor Rob Wood ethically obligated to disclose the unsolicited call he received from an LDS attorney who might be one of the Daniel S. McConkies? Yes, he was. And it appears he fulfilled his ethical obligation by reporting the call to Jim Archibald. We know Rob Wood and Mark Means are hostile to one another, so who could blame Rob Wood for calling Lori’s other lawyer, the one he may have a more collegial relationship with, instead of Means? It’s been rumored that Means doesn’t get along with Archibald any better than he gets along with Wood, so if true, it’s understandable why Means might have felt out of the loop.

Mark Means doesn’t like that Rob Wood is a member of the LDS Church and doesn’t hide his church membership. Means contends that the knowledge of Wood’s church membership means Woods “has been allowed to attempted manipulation of essential witness(es).” I gather from that word salad that Means thinks Woods is trying to influence witnesses by letting slip his LDS-ness. Means also claims that the LDS Church somehow “embedded itself into this case by way of its public statement dated 8/4/21.” If Means had looked at the document he attached to his motion, he would have noticed that the letter is dated August 4, 2020, and was sent to all “General Authorities, General Officers, and the following leaders in the United States and Canada: Area Seventies; State, Mission, District and Temple Presidents; Bishop and Branch Presidents; Members of Ward and Stake Councils” The letter is general, and reminded Church “leaders and members of a long-standing policy that Church leaders should not involve themselves in civil or criminal cases regarding members in their units quorums or organizations without first consulting Church legal counsel.” The letter does not mention any specific case. Still, the timing seemed suspect since the letter was issued when Chad Daybell’s preliminary hearing was happening in Rexburg on the destruction of evidence charges. Mark Means replied in a long and citation-laden letter.

Let’s look at what Means is demanding. First, he wants the state to disclose communication, including but not limited to Brady violation disclosures. We’ve talked about Brady v. Maryland before. The case established the rule that the prosecutor in a criminal case must disclose all information to the defense, even (or especially) if the information is exculpatory. Every state’s rules of criminal procedure includes this requirement. The rule isn’t flexible, but it is easily met. I think Wood’s disclosure to Archibal(d) that he received an unsolicited phone call from an LDS Church lawyer is sufficient. Next, Means wants the judge to allow criminal depositions and out-of-state subpoenas. Both are unusual. Not all states even permit depositions in criminal cases, and most require the court’s order if they allow them. Means wants to subpoena the LDS Church lawyer so he can depose him. The judge does not have the power to subpoena a witness in another state, and it’s unclear what relevance their information would have except perhaps to support Means’ last demand that the judge “disqualify the Idaho Department of Health and Welfare.” What does that even mean? Does that judge have the authority to do so? I don’t think so. The law requires that if a defendant is incompetent, the judge must commit them to the IDHW for restoration. Even if Judge Boyce agreed that N.C.’s actions were unethical or illegal, he doesn’t have the authority to disqualify the entire IDHW from Lori’s treatment. He doesn’t even have the power to tell the IDHW to take N.C. off Lori’s case. The Idaho Department of Health and Welfare is a separate department of the Idaho government, just like the Idaho Judicial Department. One department can’t tell the other how to do their job. The IDHW could not tell Judge Boyce how to conduct a trial in his courtroom, even if the trial involved someone who was committed to IDHW.

So, to sum up, once again, Means’ motion seems to be much ado about very little. If anyone is at fault, it may be the clinician, N.C. It’s also possible Means just tipped his hand about his theory of the case that Lori Vallow Daybell was so obsessed with the LDS Church she didn’t understand she was killing human beings and so, therefore, can’t be culpable. I don’t think a jury will buy what he may be selling.

Finally, I would be remiss in not thanking all of you for your continued support. Many of your comments about the upcoming book made it into the proposal and helped convince my publisher that this is a story the public wants to read. Your comments, likes, subscribes, and follows mean the world to me.