What's a Bill of Particulars?
Hello Friends!
We have several subjects to discuss today.
As you know, I’ve been trying to unseal the documents in the Vallow/Daybell case. Let me clarify what and why.
In my experience, judges only seal documents under specific, limited circumstances; that is what the rules of Idaho Criminal Procedure and the Idaho Court Administrative Rules require. Here is what I.C.A.R. rule 32 requires:
I.C.A.R. 32(i) Other Prohibitions or Limitations on Disclosure and Motions Regarding the Sealing of Records. Physical and electronic records may be disclosed, or temporarily or permanently sealed, or redacted by order of the court on a case-by-case basis.
(1) Any person or the court on its own motion may move to disclose, redact, seal or unseal a part or all of the records in any judicial proceeding. The court shall hold a hearing on the motion after the moving party gives notice of the hearing to all parties to the judicial proceeding and any other interested party designated by the court. The court may order that the record immediately be redacted or sealed pending the hearing if the court finds that doing so may be necessary to prevent harm to any person or persons. In ruling on whether specific records should be disclosed, redacted or sealed by order of the court, the court shall determine and make a finding of fact as to whether the interest in privacy or public disclosure predominates. If the court redacts or seals records to protect predominating privacy interests, it must fashion the least restrictive exception from disclosure consistent with privacy interests. (Emphasis added)
(2) Before a court may enter an order redacting or sealing records, it must also make one or more of the following determinations in writing:
(A) That the documents or materials contain highly intimate facts or statements, the publication of which would be highly objectionable to a reasonable person, or
(B) That the documents or materials contain facts or statements that the court finds might be libelous, or
(C) That the documents or materials contain facts or statements, the dissemination or publication of which may compromise the financial security of, or could reasonably result in economic or financial loss or harm to a person having an interest in the documents or materials, or compromise the security of personnel, records or public property of or used by the judicial department, or
(D) That the documents or materials contain facts or statements that might threaten or endanger the life or safety of individuals, or
(E) That it is necessary to temporarily seal or redact the documents or materials to preserve the right to a fair trial, or
(F) That the documents contain personal data identifiers that should have been redacted pursuant to Idaho Rule of Electronic Filing and Service 15, Idaho Rule of Civil Procedure 2.6, or Idaho Rule of Family Law Procedure 218 in which case the court shall order that the documents be redacted in a manner consistent with the provisions of that rule.
In sum, the court MUST Notify all the parties (including Interested Parties) of a hearing date and hold a hearing on the motion to seal. The court MUST then make findings in writing as to why the documents or hearing are sealed.
There are some things in this case that most certainly should be sealed. Anything about either defendant’s medical history, including their mental health, should be sealed. That means as much, and we would all like to see and understand the reasons for Lori’s commitment, those records are absolutely off limits. Likewise, any documents or hearings that contain personal information, such as birthdates, social security numbers, and financial data, should be sealed. For example, Lori’s application to be declared indigent probably contains information that should be sealed or redacted.
On the other hand, many documents and hearings have been sealed in this case that seem to have no justification. That made me very curious, and so I filed my motions. I wanted the judge to provide the public with his reasons for sealing documents that appear to contain information that would be very interesting to the public.
The Constitution’s First Amendment protects the public’s right to access government documents and records of government actions. There is a reason this access is critical. It is the public’s responsibility to oversee the operation of the government. A government by the people and for the people, remember? The public relies on the media to report what happens in the government. This transparency is another check and balance built into our Constitution. We are responsible for ensuring that our public servants serve the interests of the people and not themselves. That means we are responsible for ensuring that everyone involved in the Vallow/Daybell case is conducting their duties with the utmost integrity and fairness to ensure that both defendants receive a fair trial. That includes Judges, court staff, law enforcement, prosecutors, and defense lawyers. Secrecy in our government functions should be rare and limited to situations where it is absolutely necessary.
My initial motions made clear that the judge was not following proper procedure in sealing documents. In most jurisdictions and in Federal courts, journalists file a motion to intervene in a case to challenge sealed documents. We saw that happen recently in the Mar-a-Lago search warrants. Yet, when I filed a motion to intervene, the judge denied my motion, saying that in Idaho, a motion to intervene is not allowed because an Idaho case ruled that the only parties to a criminal case are the defendant(s) and the state. So I resubmitted the motions as a Non-Party Movant. When a person files a document, it is filed through the online portal (not like the one in Lori’s closet). Then, the document goes into an inbox to the individual court, where it waits to be accepted. The judge refuses to accept my motions because of minor formatting errors, and I keep correcting and resubmitting. As long as he doesn’t get them out of the inbox, they are never officially filed, and he doesn’t have to deal with them. I think the last time is the fourth time I’ve submitted them. One of the submissions sat for seven days in the inbox before they were rejected.
After I submitted them the first time, I was contacted by several people who told me the sealed documents were a coverup. I can’t get into specifics, but based on that information, I believe the documents have nothing to do with Lori or Chad getting a fair trial and everything to do with professional misconduct. I also think one of those mysterious documents simply labeled “order” contains a secret and sealed gag order. The Idaho Supreme Court has a Media and Courts Conflict Resolution Panel, and I have submitted the issue to them. It may not be purely coincidental that the court finally accepted my motions today.
Please understand I believe passionately in the Constitution and the rule of law; I spent much of my professional life protecting those ideals. Lori and Chad are entitled to a fair trial, unblemished by misconduct or bias. Based on what I know, it’s my opinion that Judge Boyce is not sealing documents to ensure a fair trial; instead, he is sealing records to protect reputations – including his own, and it’s wrong. I sincerely hope I am wrong and will offer public apologies if I am.
Next, Lori’s lawyers, Jim Archibald and John Thomas followed up their motions to return the case to the grand jury with a request for a bill of particulars. You may remember they argued the motion at the August 16, 2022 hearing, and Judge Boyce took the matter under advisement. We have not heard there was a decision, but with so many sealed documents and hearings, it’s hard to tell.
Let’s talk about demurrers and bills of particulars. To do so, we have to get a little elementary, so if this is repetitive, forgive me.
The Constitution ensures that every defendant has the right to know the charges and confront the witnesses and evidence against them. To protect that right, criminal procedure is quite formulaic. When there has been a crime committed, the prosecution must either submit the evidence to a grand jury or the court must hold a preliminary hearing in either case. The purpose is to ensure that there is probable cause to believe the defendant committed a crime. Once there is probable cause, an indictment is issued, and the defendant is arraigned on it. The charging document must be accurate so that the defendant has notice of what they are accused of.
If the defense believes the indictment is defective, they must file what is called a demurrer. The demurrer says that even if the factual allegations in the indictment are true, they don’t rise to the level of a chargeable crime. That is different from a bill of particulars.
A request for a bill of particulars asks the prosecution to explain the charges more fully. The indictment is typically done in Idaho by preliminary hearing. We saw a preliminary hearing in Chad’s charges after the children’s bodies were found. The state is not required to put on all its evidence, just enough to prove probable cause. This gives the defense a road map of how the state arrived at the charges. While the defense receives a transcript of the testimony the grand jury heard, the grand jury’s deliberations are secret. The defense, in this case, is arguing that there’s no way to see how the grand jury arrived at their decision. The defense also points out that the charges are pled in the alternative. It’s a common tactic in prosecution. Cast a wide net by pleading alternative theories of the case, then narrow them down as the investigation and preparation for trial continue. It’s not unusual for the defense to ask the prosecution to narrow down the options. Under Idaho law, the court is not required to order the prosecution to provide the defense with a bill of particulars.
Lastly, the court has scheduled a hearing on September 15, 2022. There is no indication of what the hearing is for or whether it will be open to the public. The court has not set a date on my motions yet.
It’s hard to believe it’s already early September. The trial that seemed so far away is now just around the corner. Happy Pumpkin Spice, everyone.
