What Happened at Today's Hearing? April 28, 2021

April 28, 2021

Hello Friends!

Ready to dish about the DNA hearing today? So am I.

I don’t always agree with the things John Prior and Mark Means do, but in this case, they’re right. Oh, I know how it pains some of you when I say that, but it’s my goal to be as fair and
objective as possible.

Here’s what we understand is going on. In July 2020 (right after the children’s bodies were discovered), law enforcement served yet another search warrant on the Daybell property and seized some things from an outbuilding. It appears that there were traces of evidence on the items they seized. The lab is very backed up (most state crime labs are) and had had delays due to COVID-19. The lab is just now getting around to testing the samples. The lab reported some of the finished testing but asked for direction from the DA on testing samples where the test would consume the entire sample. The DA notified the defense, and the defense promptly objected to the DA continuing the testing. According to Wood’s response to the court, he put the testing on hold and asked the defense attorneys to give him the names of their experts within 14 days.

When the state lab tests samples, the defense has the option of having the samples retested by their own lab. In this case, where there is only enough to run a test once, the defense should have the option to have their own expert present to participate in or observe the testing.

Prosecutor Rob Wood has responded to the defense’s objection by telling the court that the DA has no objection to scheduling a time, place, and method for the defense experts to participate in the testing. That’s also typical. As we all know, criminal procedure requires that all evidence, whether inculpatory and exculpatory, be shared between the prosecutor and the defense.

Rob Wood is also right. The state is entitled to test anything they want and is not required to perform any specific test they don’t want, but they must preserve the fundamental fairness of the process. If they opt to test samples, they must make the evidence available for confirmatory testing. If the sample is so small, it will be consumed by the testing, the only option is for both sides to participate in the testing.

The attorneys spent some time in a breakout room with the judge. By the time they came into the public feed, the state and the defense had agreed to ensure the proper procedures are followed in testing the limited sample.

***

“What,” I hear you saying, “is taking them so long to decide about more serious charges?” And the truthful answer is I don’t know. I can only speculate, just like everyone else. I just speculate from a slightly elevated level, based on years of experience and an understanding of the process and procedures. Here are some possibilities.

• The Madison County DA’s Office might be overwhelmed and can’t handle the volume of work associated with this case. Probably true. Rob Wood is the elected DA. He has one Deputy Prosecutor, Troy Evans. They each have a legal assistant. Even though Rexburg, ID, has one of the lowest crime rates in the country, there is still plenty of work to keep two prosecutors busy. According to the internet, there were 127 crimes in Madison County last year (only six violent crimes). In most jurisdictions, about 80% of criminal cases settle before trial. That means the Madison county prosecutor’s office tries maybe 25 cases a year. That’s about a case a month for each lawyer. While that’s not many jury trials, prosecutors do much more than just try cases. Without a big case that is receiving national attention, that workload is more than manageable. BUT toss in a high-profile and extremely complex case like the Vallow/Daybell case, and it quickly becomes unmanageable. And if, as it appears in this case, you have not tried a case of this magnitude before as a prosecutor, it becomes a case of not knowing what you don’t know. This appears to be the reason Wood brought Rachel Smith in pro hac vice as a special prosecutor. Smith has lots of experience with complex cases, and if the workload is the only issue, we should see those charges soon.

• The prosecutor might not have a strong case. We’ve talked about circumstantial vs. demonstrative evidence before. When a case is circumstantial, it means that the circumstances point to only one answer – the defendant’s guilt. Circumstantial evidence is just as valid and persuasive as demonstrative evidence, but it takes more work to make a circumstantial case. For instance, the fact that the children’s bodies were found in his yard points heavily to Chad being involved in destroying or hiding their bodies which were evidence of a crime. But the fact they were in his yard doesn’t prove it without other corroborating evidence. There are many questions that the prosecutor needs to answer, like: exactly when and where were the children killed? How many people were involved? What was the mechanism of death, and who was actually responsible for the act that ended their lives? The exact time and place of death are essential because we need to determine the whereabouts of each potential killer and investigate any possible alibis. The precise mechanism of death can tell us a great deal about motive and the mindset of the murderer(s).

• The investigation might not be done. The fact that the crime lab is just returning test results last week from samples submitted last July tells you something about the speed at which the case is being investigated. Pouring molasses in January in Rexburg might be faster (as my old granny used to say). And let’s remember, we’ve had a global pandemic to complicate both processes and staffing. This lack of investigation could well be contributing to the problems I’ve outlined above.

• One or more of the defendants might be talking/promising to talk/unable to talk. I am still suspicious that something is going on with Lori. Judge Boyce declined to decide Lori’s objection to the pro hac vice objection and left it on hold. Today, very little was said about her. Is it possible that Lori is ill, incapacitated, or talking? Quite possible. Which? Who knows? If she is talking, it could take weeks to get all the information from her and then have law enforcement corroborate each fact in her statement. It appears that Lori is still in jail and not in a hospital. If she’s had, or is having some sort of breakdown, or has COVID-19, she could be receiving treatment in jail. Keeping her in jail would be preferable since securing a prisoner while they are in a hospital or another facility is very difficult and expensive.

***

Knowing that something is going on with Lori, let’s talk once again about mental competence. We’ve established that Idaho doesn’t recognize the insanity defense. A person in Idaho can’t avoid conviction by presenting evidence that because of mental disease or defect existing at the time of the trial, they didn’t understand the nature and quality of their actions or didn’t know their actions were wrong. But an insanity defense is very different from a claim that a defendant is not competent. The competence issue is whether a person can understand the proceedings brought against them and meaningfully participate in their defense by aiding and assisting their attorney. If a person is not competent because they can’t aid and assist, they generally receive treatment until they are competent. The issue of competence isn’t just significant if a case goes to trial; the defendant must also be competent in order to freely and voluntarily enter into a plea agreement.

Remember, this is all just speculation at this point. We don’t actually know what is going on behind the scenes.

Thank you for continuing to read and send me comments. I appreciate each of you for taking the time. Please stay safe and get vaccinated to protect yourself and those around you. It may not be perfect, but it’s the best we have right now.