What does Lori have to smile about?
Hello, Friends! We have a lot to talk about. I attended Lori's hearing yesterday in Rexburg, ID.
There were three motions on the docket for yesterday's hearing. The first was the state's motion for consumptive DNA testing. On Friday, they announced they had agreed with the defense about the testing and asked the judge to take that issue off the schedule. Next were two motions filed by Lori's court-appointed attorneys, Jim Archibald and John Thomas. These motions concern how the indictment was written when it came from the Grand Jury. Chad's attorney, John Prior, reported that because their issue had been resolved, he and Chad would not be attending the hearing. Many were disappointed because this hearing would have been the first time both defendants would be in court in person with their attorneys. Because of COVID restrictions, all the earlier hearings were conducted by video conference.
The two motions presented by Lori's attorneys are both quite technical and may require some explanation. The counts in question, counts one and three, involve conspiracy. While Chad and Lori's indictments are identical, only Lori's attorneys have challenged the form of the indictment.
In general, the rule is one charge for each crime. The indictment reads:
COUNT I
CONSPIRACY TO COMMIT FIRST DEGREE MURDER
AND GRAND THEFT BY DECEPTION a Felony
The defendants, Chad Guy Daybell and Lori Norene Vallow, and Alex Cox (deceased), and other co-conspirators, both known and unknown, on or between the dates of October 26, 2018, and continuing until January 15, 2020, in the County of Madison, State of Idaho, and elsewhere, including Fremont County, Idaho, and as part of a continuing criminal transaction and a common scheme or plan in Madison and Fremont Counties, Idaho did willfully and knowingly combine, conspire, confederate and agree to commit the Murder in the First Degree of Tylee Ryan and to commit Grand Theft by Deception.
The analysis requires some further information. The crime in this count is the crime of conspiracy, not murder or grand theft.
The state must prove: (18-1701)
The crime occurred in Fremont or Madison counties
In the state of Idaho
Two or more persons
Combined or conspired to
Commit any crime that is illegal in the state of Idaho
And one or more of them did at least one act in furtherance of the conspiracy.
It's essential to know the crime does not have to be completed.
The title of the indictment is confusing. Is it charging the crime of conspiracy to commit murder and the crime of conspiracy to commit grand theft? Is it alleging one single conspiracy to commit both crimes? Or is it alleging the crime of conspiracy to commit murder and the separate crime of grand theft?
To further complicate matters, the punishment for conspiracy is the same as the punishment for the underlying crime, even if the crime wasn't completed. So, the punishment for conspiracy to commit first degree murder is the same as first degree murder, life in prison with the possibility of parole or the death penalty. The punishment for grand theft by deception is fourteen years in prison.
Prosecutor, Rob Wood, argued that the crime was conspiracy and that the conspiracy was to commit first degree murder and then grand theft by deception (by continuing to receive Tylee's Social Security payments after her death) as a single course of conduct. The defense argued that combining the crimes into a single count would be confusing to the jury and would require a lengthy jury instruction. Judge Boyce's questions seemed to indicate that he shared the defense's concern about jury confusion. The judge took the motion "under advisement" and said he would issue a decision once he had a chance to read the cases both sides cited in their motions and briefs. If the judge rules in favor of the defense, the prosecution must recall the grand jury and ask them to issue superseding indictments. Chad and Lori would have to be arraigned on the revised indictment. The process would be simple, as long as the state can reconstitute the same grand jury. If they can't, they will have to present the entire case to a new grand jury. We know the state recalled the grand jury for a day last year, although we don't know what was presented to them. As you know, grand jury deliberations are secret. It will probably be simple to recall the same jurors for a day and have them issue a new indictment.
The cleanest way to have charged the crime would have been to charge one count of Conspiracy to Commit First Degree Murder and one count of Conspiracy to Commit Grand Theft by Deception. However, different charges can arise from the same course of conduct. Although the conspiracy was likely to murder Tylee and continue to receive her Social Security payments, they can be (and probably should have been) charged as two conspiracy crimes.
The second of the defense motions is a bit more esoteric.
Their motion conflates two rules, one for grand juries and one for trial juries, and attempts to apply both rules to the grand jury indictment.
All criminal offenses are defined in state statute by the elements of the crime. For example, in Idaho, the prosecutor must prove beyond a reasonable doubt each of these elements of the crime of first-degree murder:
The crime happened in the state of Idaho.
The crime occurred in the county where it is charged.
The defendant killed a human being
With malice aforethought
The first rule happens pre-indictment. When the prosecutor presents a case to the grand jury, the grand jury must find probable cause to bind the defendant for trial. The grand jury must assure that there is probable cause to believe that the defendant committed every element of the crime listed in the statute. Remember, probable cause is a much lower standard than proof beyond a reasonable doubt.
Then, before the prosecutor can seek the death penalty, she has to allege that certain aggravating factors are present. Those factors are listed in the Notice of Intent to Seek the Death Penalty. The aggravating factors become additional elements the prosecutor must prove at trial. In addition to the statutory elements, the prosecutor must also prove beyond a reasonable doubt that one or more aggravating factors exist. These aggravating factors are considered additional necessary elements of the crime. In Idaho, the following is a list of possible aggravating factors:
A previous conviction for murder
More than one victim at the time of the murder
Knowingly creating a great risk of harm to many people
Committed for remuneration or the promise of remuneration
Exceptional depravity or an especially heinous or atrocious, cruel or manifesting utter disregard for human life.
Committed during the perpetration of another felony – arson, rape, robbery, burglary, kidnapping, mayhem
When the victim was a potential witness in a crime
When the defendant constitutes a continuing threat to society.
In their motion, the defense claims the same standard should apply to grand juries as to trial juries (also called petit juries) – that every element, including the aggravating factors, should be tested by the grand jury to assure there is probable cause to believe the defendant committed them. To quote their motion, "Just as Mrs. Daybell is entitled to a grand jury finding of probable cause on what charges are brought against her, she is likewise entitled to a finding of probable cause on each alleged statutory aggravating factor."
In yesterday's hearing, Lori's attorney, John Thomas, acknowledged that there is an Idaho case directly on point but said he believed the issue might be ripe for the Idaho Supreme Court to revisit it. The case, State v. Abdullah, 158 Idaho 386 (Idaho 2015), says expressly, "we also hold that there is no constitutional requirement that the State present evidence demonstrating probable cause for each aggravating circumstance to properly notify the defendant of its intent to seek the death penalty."
It's hard to see how the defense argument succeeds because Idaho statutes outline a precise sequence of events. First, the prosecution presents its case to the grand jury. Then, if the grand jury finds probable cause to believe that the defendant committed every element of the crime, they issue a true bill and an indictment. Next, the defendant is indicted for the crime, and the state has 60 days to decide whether to seek the death penalty. Finally, at trial, the prosecution must prove every element of the crime beyond a reasonable doubt, including the aggravating factors. Since the state is not even required to make a death penalty determination until 60 days after the defendant is indicted, the grand jury would only be speculating about aggravating factors.
Aggravating factors are sentence-enhancers, not charge-enhancers. It makes perfect sense to require those factors to be proven beyond a reasonable doubt at trial if the prosecutor intends to use them to enhance the defendant's sentence. Conversely, it makes no sense to require a grand jury to speculate about aggravating factors that may or may not be alleged later; aggravating factors don't affect the grand jury's decision about the charges. Judge Boyce also took this motion under advisement.
When the judge asked the attorneys whether there were any other matters, Jim Archibald said there was a matter he wanted to take up with the judge "under seal." I suspect Judge Boyce could hear my teeth grinding from three rows back in the gallery.
As most of you know, I filed a motion to intervene in the case to challenge all the sealed documents and proceedings. When I arrived in the courtroom, the trial court administrator knew exactly who I was and introduced herself to me. She gave the impression that I had been the topic of discussion with the court. I don't doubt it because unsealing the documents at this point will be a big job. I am sure some things will need to be redacted before the documents and transcripts of hearings can be released. Fremont County is a very small jurisdiction. I recognize the workload to redact documents and the recordings or transcripts of hearings will be a hardship; that doesn't relieve them of the responsibility to follow the law.
I am sure you all realize this, but these are my motions. I appear with Lauren Matthias on her YouTube channel, Hidden True Crime, when she invites me as a guest. Neither Lauren nor her husband, Dr. John Matthias, has anything to do with the motions I filed for access to sealed information. Many have asked why other news outlets didn't file motions or join in mine. Most journalists try to avoid any appearance that they have become part of the story they are covering. As a book author, I have less concern with the day-to-day reporting of the case. Because I am a retired attorney, I had the skill set necessary to draft and file the documents and argue the motions without the need for legal counsel.
I have requested a hearing on my motions to unseal the documents and hearings, but a date hasn't been set yet. I will go to Rexburg to present my argument in person when that hearing is set. I will, of course, keep you all posted.
Now a bit about the atmosphere in the courtroom and the appearance of parties and the attorneys. Nate Eaton was there, working with Court TV to live-stream the hearing. It's been all over YouTube, so I'm sure it will be easy to find. Prosecutors Rob Wood and Lindsey Blake appeared on behalf of the state. Lori was there with her attorneys, John Thomas and Jim Archibald. Lori wore black slacks, black shoes with chunky heels and a modest, gray, long-sleeved blouse made of silky polyester material. Her clothing looked to me like the typical clothing a defense attorney would provide for their client. She appeared thin. She crossed her legs left over right under the table and bounced her left foot through most of the hearing. When she walked into the courtroom, she glanced over her shoulder and smiled at someone in the gallery. Throughout the hearing, she sometimes smiled, looked bored, and sometimes perplexed. She glanced over her shoulder several times and smiled each time. At one point, she looked toward the ceiling and closed her eyes. She seemed to snicker when the judge discussed the delay because of her lack of competency and the trial date. She said something to Jim Archibald, then shook her head and smiled. When Judge Boyce was discussing the issue of the confusion in counts one and three and the possible sentences, he asked, "do you pick the lower one, do you pick the higher one, or both…." Lori broke into a wide smile. Prosecutor Rob Wood looked tired, and every time the camera landed on Lori, Rexburg Police Department detectives Ron Ball and Ray Hermosillo could be seen behind her. When Lori shielded her mouth with her left hand to say something to Jim Archibald, she was wearing a broad black band on her left ring finger that appeared made of black rubber. She likely asked her attorneys for a wedding ring for court, and this is what the jail permitted. Lori's hair was curled, and the front was held back by a hair band. Inmates are permitted reasonable grooming aids before court. Men are allowed to shave, and women are allowed to style their hair.
Lori entered the courthouse in shackles and wearing a bullet proof vest. It appeared she had a leg restraint under her slacks in the courtroom. This is a device that makes it nearly impossible for a defendant to run. Nate Eaton, of East Idaho News caught her grinning from the police car as she was driven away.
Yesterday afternoon, Vinnie Politan interviewed JJ's grandparents, Larry and Kay Woodcock. We know this entire case has been hard on Larry and Kay, and we send them our love and prayers. They said they watched yesterday's hearing by video, and they were surprised at Lori's demeanor. It seemed to them that she was not taking it very seriously. Larry and Kay expressed frustration that the children's remains have not been released so that they can have funerals. I know the awful level of uncertainty has been hard for them, and the fact that they can't get any sort of closure by honoring Tylee and JJ with a service is just more uncertainty. It's hard for them to think of their beloved children as "evidence." I also know the importance of preserving the opportunity for additional forensic testing until the trial is over. Yes, their autopsies are complete, but either side could ask for further testing or a second autopsy at any time. So they continue to wait patiently for resolution.
