What Happened in the Discovery Hearing?

February 18, 2021
 
Hello friends:
 
Yesterday's hearing in the Vallow/Daybell case deserves some explanation. These procedural hearings can be pretty mystifying and could require us to break out the ghillie suits again and get in the weeds. Let's break it down.
 
The hearing was scheduled to address Mark Mean's Motion to Compel Discovery. At the last minute, Means filed a motion for a pretrial status conference and asked that it be done "under seal." The second part of the motion was harder to understand. Some interpreted it as Means not realizing yesterday's hearing was scheduled. Others, myself included, interpreted it to mean that Mark Means was asking the judge to reconsider the denial of his motion to reconsider the issue of disqualifying Rob Wood. 
 
After the judge decided there were no grounds to disqualify Wood, Mark Means filed a motion asking the judge to reconsider that decision. The judge was within his authority to deny the motion to reconsider without having a hearing. The judge ruled that the Rules of Criminal Procedure did not allow a motion for reconsideration (they are allowed under the civil rules) and denied the motion. I think the Means expected the court to set a hearing on the motion, and the second paragraph of Mean's last-minute motion was asking the court to reconsider that denial so he could submit his memorandum in support of his motion to reconsider. Hopefully, that makes sense. 
 
Yesterday's hearing was about discovery, so let's do a quick discovery refresher. 
 
Idaho Rule of Criminal Procedure Chapter 16 controls discovery in criminal cases. In 1963, Brady v. Maryland, 373 US 83 became the law of the land when the supreme court ruled that prosecutors must share all evidence and all information that could be expected to lead to admissible evidence with the defense, including exculpatory information. Before that time, exculpatory information, which is information that could lead to proof that the defendant is innocent, was sometimes withheld from the defense, either by prosecutors or law enforcement. 
 
IRCP chapter 16 requires that "as soon as practicable after filing pf charges against the accused the prosecuting attorney must disclose to defendant or defendant's counsel any material or information in the prosecuting attorney's possession or control, that tends to negate the guilt of the accused as to the offense charged or that would tend to reduce the punishment for the offense." Paragraph (b) says that the prosecuting attorney must, upon written request by the defendant, disclose copies or portions of them that are in the prosecution's control and that are material to the preparation of the defense or intended for use by the prosecution at trial or belong to or were procured from the defendant in the following categories:

• Statements of Defendant

• Statements of a Co-Defendant

• Defendant's prior record

• Documents and Tangible Objects (books, papers, documents, photographs, tangible objects

• Buildings or places

• Reports of examinations or testing.

Rule 16 paragraph(b) (6) was the section most discussed during the hearing. It reads: "On written request of the defendant, the prosecuting attorney must furnish to the defendant a written list of the names and addresses of all persons having knowledge of relevant facts who may be called by the state at the trial, together with any record of prior felony convictions of any of them that is within the knowledge of the prosecuting attorney. The prosecuting attorney must also furnish on written request the statements made by prosecution witnesses or prospective prosecution witnesses to the prosecuting attorney or the prosecuting attorney's agents or to any official involved in the investigation of the case unless a protective order is issued…"

Rule 16 (g) outlines Prosecution Information Not Subject to Disclosure. The rule makes clear the that following are not discoverable by the defense:

• Legal research or research of records

• Correspondence

• Reports or memoranda to the extent they contain the opinions, theories, or conclusions of the prosecuting attorney or members of the prosecuting attorney's legal staff.

• The identity of informants unless they are testifying at trial

IRCP 16 doesn't define what a statement is. Because the rules about criminal discovery often mirror the federal rules, it's sometimes helpful to look at what Federal Rule of Criminal Procedure Chapter 16 says. The Federal rules define a statement as a written or recorded statement or any relevant oral statements made by the defendant before or after an arrest in response to a government agent's interrogation. Most definitions center on a statement's formalized nature, such as a statement given orally to the police and formally documented in a police report. The Federal rules don't mention witnesses, but if we use the same definition, a witness statement is made in response to a government agent's interrogation.

Notes on a cocktail napkin are not a statement, but they may be attorney work product. The prosecutor must turn over all statements to the defense, but he does not have to turn over what is considered attorney work product. Lawyers like words. Lawyers like notes, and plans, and outlines, and more notes. That's why yellow legal pads exist. A lawyer's files are FILLED with notes, and research and thoughts, and doodles. I'm not kidding. I hired my daughter and a summer intern to digitize my old files one summer. They were entertained for hours, laughing over my notes and doodles. None of those things are discoverable to the defense. Rob Wood is entitled to strategize, theorize, and write snarky comments in the margins without fear that his thoughts will be disclosed. So is Mark Means.


When law enforcement meets with a defendant or a witness, they take a statement. That statement has a formalized process. It's written by an officer, then reviewed by superiors before it is finalized and shared with the prosecutor. Police reports are usually admissible hearsay because that process gives them an indicium of reliability. As Rob Wood points out, "every conversation the prosecutor has with a witness doesn't necessarily produce a statement."

Prosecutors meet with witnesses and victims all the time. They occasionally make notes of their meetings, but not always. The contents of those notes and their recollections of the conversation are not statements; they are work product and not subject to discovery. Suppose a prosecutor meets with a witness and the witness says something different than what she said to law enforcement. In that case, the prosecutor will ask law enforcement to reinterview the witness and get to the bottom of the conflicting statements, including interviewing corroborating witnesses. Once that is done, law enforcement will file a supplemental police report, which is discoverable to the defense.

Much of what Mark Mean is asking for is work product. Means is entitled to any and all formal statements made by the defendants or any witnesses that the prosecutor intends to call at trial. He's not entitled to dig around in Rob Wood's head to mine his thought processes.

Mark Means argued that since Wood failed to file a response or object to the discovery request within the allotted time, he waived his right to object. He also argued that Wood having contact with witnesses makes Wood a witness himself. The law says that the court can allow objections after the time limit for "good cause." Means argues that Wood is the "holder of the statements and has an obligation to produce them." Means contends that in his experience in criminal law, prosecutors very rarely initiate contact with witnesses. It simply isn't true, so we can only surmise that Mr. Means' criminal law experience is still very limited.

Wood argued that there was good cause to find his objections were not waived, and even if they were, Means wasn't entitled to the information. First, he argued that the discovery requests were illegal and improper and that they were outside the scope of IRCP 16. He made four points in his argument that supported the court finding there was good cause to allow his objections outside the time limit. 1.) the requested materials are outside the scope of IRCP 16; 2.) that the material is work product; 3.) that it's an attempt by Means to turn a "mere eight-day delay" into the authority to obtain information they would not otherwise be entitled to; 4.) that Means was trying to relitigate matters that the court had already decided. Rob Wood filed a brief with the court outlining the specifics of his arguments, which we didn't have access to.

I think Wood is correct that Means is making illegal requests for work product. Wood also points out that the procedure to get information not covered by Rule 16 is to file a motion not to make a discovery request. It's an argument that the judge discounts and says he will consider the discovery request and motion as if they had filed a proper motion.

John Prior's concern is that Wood is determining what information is relevant. Yes, and all prosecutors do that. Wood is only required to turn over information relevant to the current charges. Information such as Tammy Daybell's autopsy is not relevant to the current charges of destroying and conspiring to destroy evidence. Prior said he intends to file his own motions regarding discovery. He also says he doesn't think that Rob Wood can be trusted to turn over relevant discovery, and the reason is Summer Shiflett. But earlier, he said that Wood did all the talking in the interview, so I guess we can infer that what they really want is everything Rob Wood ever said to a witness.

Here is an interesting tidbit from the hearing. Wood and Prior had an exchange about a letter. Prior said he intended to file a motion about the contents of the letter. Wood claims he made a Brady disclosure to Prior and said a report would be coming. Prior asked for audio or video recordings, and Wood said he would send them if they existed. The following are good examples of Brady disclosures:

• An agreement not to prosecute a witness in exchange for the witness's testimony

• Any exculpatory evidence that proves or suggests the innocence of the defendant

• Any offer leniency agreements made with a witness

• When a photo of the defendant does not match a victim or witness's description

• Law enforcement dishonesty

 
What could that Brady disclosure have been? Perhaps the immunity agreement with Zulema Pastenes? I considered that it might be Tammy's autopsy, but then why would Prior ask for audio or video recordings? There's nothing definite now, but we should keep our ears open for more information. 
 
Here is the crux of the matter: Means and Prior don't care about what the witnesses said to Wood; they want to know what Rob Wood said to the witnesses. I think Wood's conversations are work product. They are no different than his notes and doodles. 
 
So, what can we conclude from the hearing? Rob Wood was eight days late responding to Means' request for discovery. The rules are clear; if you don't object within 14 days, your objection is considered waived. But it only means that you can't object to producing material that is otherwise discoverable. It doesn't mean that the defense gets anything he wants. The fact that Wood waived his right to object does not suddenly make his work product discoverable.  
 
The judge said he would not order the production of material outside the scope of Rule 16.  The judge granted Mean's motion to the extent that he ordered Rob Wood to produce a response to the question as to whether the prosecution has discussed the case with the people on the defense's list. He did not require Wood to disclose his notes, only statements. He also said that there was no basis for sanctions (usually ordering one side to pay some of the other side's attorney fees). It means Wood should give the defense a list of the people, if and when communicated with them, and perhaps a summary of the conversation. Wood could satisfy that requirement by reporting that he met with a witness on a certain day and that the witness didn't make any statements that were not in their previous reports prepared by law enforcement. 
 
Many people want to understand Mark Means' motivation. I see a lot of nasty, uncomplimentary comments about both lawyers on social media. I've said this before, but I'm going to keep saying it. The lawyers are not their clients. They are not responsible for their client's reprehensible behavior. They are responsible for ensuring their client's constitutional rights are protected. Making derogatory remarks about their appearance or their demeanor isn't helpful. Honestly, it disappoints me because I think this community is kind and smart and genuinely interested in this story. I realize this case engenders a lot of emotion. Still, I hope my community will direct that emotion constructively into understanding the case instead of making fun of the people involved. In my opinion, Mark Means thinks in very black and white terms. Nuance may not compute for him. It seems that he doesn't accept "that's how things have always been done" as a good enough answer. While it may lead him to tilt at windmills sometimes, it's also how many important advances in legal theory came about. Mark Means is not stupid. He may be somewhat naïve, but I think he has good intentions. I think he likes his client, thinks she is a victim and wants to do the best job possible for her. Could Lori Vallow and Chad Daybell have better lawyers? Probably. For now, though, these are the lawyers they have. 
 
Sorry, this newsletter had to be so long to pack everything in. Let's stay safe, kind, and grateful out there.