We Have a Trial Date!

Hello Good Friends! I hope you are all doing well and enjoying your holiday season.
 
Let’s start by reviewing the hearing on December 8, 2022. There was a lot that came out of the hearing. First, it was the first time Lori and Chad were in the courtroom at the same time. Some people in the courtroom claimed they were exchanging glances; others claimed they both looked straight ahead. Unfortunately, I didn’t attend, so I wasn’t there to observe and give my impressions. Later, Chad was dismissed from the courtroom once the issue of a trial date was settled.
 
We Have a Trial Date! The judge reviewed the speedy trial timelines before setting the trial for April 3, 2023. Chad Daybell has waived his speedy trial rights. According to the court’s calculations, Chad had been in custody for 912 days. Lori Vallow Daybell has not waived her speedy trial rights and has been in custody for 1022 days. The judge said the trial would continue to be a joint trial. Lori’s attorney, Jim Archibald, said by his calculations, her trial needed to be set by February 21, 2023, and that if the trial were not set by then, he would file a motion to dismiss her case for lack of speedy trial. Archibald said that his calculation included the extended time the judge added for good cause that resulted in the January trial date and did not include the time Lori’s case was stayed for her most recent mental health evaluation.
 
The judge said he hoped jury selection could begin in late March so that the substance of the trial could start promptly on April 3, 2023. The prosecution pointed out that the ten-week estimate of trial time did not include time for the jury to deliberate and did not include time for the penalty phase if the defendants are found guilty.
 
The judge said he would issue a scheduling order that would include deadlines for pretrial motions.
 
Discovery and Lori’s Motion to Compel. John Prior told the court that the prosecutor, Rob Wood, had just handed him a thumb drive with 115 items of new discovery on it. He also reported that he has 60 to 70 other things he has asked for and doesn’t have. Additionally, the court previously ordered the state to produce a transcript of the supplemental grand jury proceedings, and Prior said he still has not received it.
 
The prosecution said they hope to have the report from the consumptive DNA testing in about three weeks. During the discussion on scheduling, John Prior asked the court to set the trial either in October 2023 or later into 2024 because he feels the prosecution is “slow walking” discovery.
 
I can’t disagree. While Prior didn’t yet know what was on the thumb drive, he said that from the index, it appeared the information was voluminous. It’s outrageous to think that more than two years after their original arrests, the state is just now providing the defense with what appears to be new discovery.
 
The judge then took up Lori’s motion to compel discovery. As usual, the judge waffled. Archibald and Thomas claim (likely true) that the prosecution continues to have law enforcement interview witnesses and is not producing their statements. Specifically, they claim the FBI recently reinterviewed Melanie Gibb, Zulema Pastenes, and Melani Pawlowski, and the state has not created any new reports from those interviews. The defense only learned of the interviews when their investigator went to talk to Zulema and was told she was in Rexburg with her attorney. John Thomas was outraged and caught off guard by Rob Wood standing up and saying there were no new reports, he tried to put his investigator on to rebut Wood but had trouble getting past the hearsay objections.
 
The judge then granted the defense’s motion to compel discovery but said the order would simply direct the state to comply with the discovery rules. Since the parties can’t agree on what the rules require, his ruling amounted (as usual) to punting the issue.
 
So let’s dive into the weeds a bit. When a prosecutor prepares a case for trial, they will meet witnesses and review their testimony. If it appears that trial preparation might result in new information, the prosecutor has law enforcement document the witness statement so it can be provided to the defense. Wood claims that he’s met with the witnesses, but they didn’t say anything new – but we know Wood had law enforcement reinterview them. It makes you wonder, doesn’t it?
 
The prosecution has a constitutional obligation to divulge EVERYTHING to the defense. The reason is that the prosecution has the unlimited resources and power of the state behind them. Transparency levels the playing field. The only thing the state does not have to produce is attorney work product. Think of it this way: if I sit down with a witness statement, outline my questions based on the statement, make notes about where it will fit in my opening and closings, and how a particular case figures into the case, that’s work product, and the other side doesn’t get it. On the other hand, if I sit down with a witness to review their testimony and they suddenly remember something new, I need to have law enforcement record the new information and produce it to the other side. Not everything in the prosecutor’s office is automatically protected by attorney work-product privilege.
 
A prosecutor should only prosecute a case they believe they can prove beyond a reasonable doubt after fully disclosing all their evidence to the defense. If they have to hide evidence to ambush the defense, it’s unconstitutional, and they have no business prosecuting. These are most certainly issues that will come up on appeal.
 
Motions about the Death Penalty. John Prior told the court he intended to file similar motions to the ones before the court, so they decided to postpone argument so they can hear all of these motions together.
 
Bill of Particulars. The court already considered argument from John Prior on this issue. John Thomas added a few comments. He argued that the indictment does not comport with the law and does not give a plain, concise and definite statement of the precise facts. Thomas pointed out that the court and the defense have questioned the clear meaning of the indictment, but the state claimed it was a thinly veiled attempt to discover their theory and work product. Thomas was right when he argued that the state’s theory should be transparent, that they are supposed to be the ministers of justice, and should be looking out for the fairness of the process “without passion or prejudice.” Work product includes the opinions of the prosecutor and nothing more. For some reason, the prosecution believes that everything they do in their office is “work product.” And does anyone else find Rachel Smith a little a little condescending when she says, “while I applaud the defense for their creative argument…?”
 
True Crime Wednesday. Join me tonight for our weekly discussion of true crime cases. Tonight we will be discussing Missing Children; is it really an epidemic? Find me here at 6 pm Pacific, https://youtu.be/3qUixU5knW8.
 
Don’t miss our TGIF discussion of the Vallow/Daybell case; We Have a Trial Date! Friday at 6 pm Pacific. You can find it here https://youtu.be/437ffvwUFy0.