What's so grand about a grand jury?

Hello Friends! There have been some significant developments in the Lori Vallow and Chad Daybell case today.

Last evening, Court TV announced that according to “multiple unnamed sources,” the Fremont County Prosecutor will convene a grand jury investigation into the deaths of JJ Vallow, Tylee Ryan, and Tammy Daybell. The Grand Jury will convene on May 17, 2021, at the Fremont County Courthouse and last until May 20, 2021.

To understand just how important this development is, it’s essential to understand what a grand jury is and how it functions. Grand juries are a quirky holdover from English law that our founding fathers thought an essential check on power. As we all learned in Civics class, our US Constitution’s focus is on protecting individual liberty by providing checks on government power. The use of grand juries arose in England sometime in the twelfth century and developed into a safeguard to protect an individual citizen from the monarchy’s power. Our founding fathers saw it as an essential check on prosecutorial power.

Let’s look at the typical sequence of events. A crime comes to the attention of the police, who investigate and report their findings to the prosecutor. At this point, the suspect may be in custody, or the police may have cited the defendant and released them. The prosecutor reviews the police citation and the facts of the case to determine if the facts support a criminal charge and which crime should be charged.

When a prosecutor decides that the investigation has reached the point where he is ready to file charges, the prosecutor must file an information, a complaint, or an indictment.

• If the crime being charged is a misdemeanor, carrying a penalty of incarceration for one year or less, the prosecutor may charge the crime on his own by issuing a Prosecutor’s Information. Once the prosecutor files an information, the court will either issue an arrest warrant or a notice for the defendant to appear. Typically, defendants in misdemeanor cases are cited to appear rather than arrested.

• If the crime is a felony, the prosecutor has two options: either he must present the case to a grand jury, or the court must hold a preliminary hearing. The purpose of either is to determine if there is sufficient evidence to bind the defendant over for trial. In about half of the states in the US, including Idaho, the prosecutor has the choice of convening a grand jury or scheduling a preliminary hearing. Some states favor one over the other. In Idaho, most cases are presented in preliminary hearings, and grand juries are the exception.

First, let’s look specifically at how grand juries work in Idaho and then discuss why a prosecutor might choose one over the other.

Idaho Criminal Rule 6 covers the Formation of the Grand Jury. Idaho grand juries are made up of 16 qualified jurors. At least 12 of those jurors must be present to constitute a quorum that permits them to deliberate and take action. The Prosecutor files a motion with the court, asking that a grand jury be empaneled. The court issues grand jury summons to a group of citizens, using the process laid out in the Idaho Uniform Jury Selection and Service Act. Potential Grand Jurors are summoned to the courthouse, where a selection process takes place. A district judge conducts the selection process with a prosecutor, a court reporter, and a court clerk present. The court clerk administers an oath to all prospective jurors that each of them swears to answer truthfully the questions put to them as to their qualifications to serve.

The judge will then question potential grand jurors to determine whether they are qualified and any facts that would disqualify them. Once 16 jurors have been qualified, the judge impanels them by asking them to swear the following oath:

Do each of you, as jurors of the grand jury, affirm that you will diligently inquire into, and true presentment make of all public offenses against the state of Idaho, committed or triable within this county, of which you shall have or can obtain legal evidence? That you will keep your own counsel, and that of the other members of the grand jury, and of the government and will not, except when required in the due course of judicial proceeding, disclose the testimony of any witness examined before you, nor anything which you or any other grand juror may have said nor the manner in which you or any other grand juror may have voted in any matter before you? That you will present no person through malice, hatred, or ill will, nor leave any unpresented through fear, favor or affection, or for any reward or the promise of hope thereof? Do you therefore affirm that you will in all your presentments follow these instructions and present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding, so help you God?

The judge selects a juror to act as the presiding juror. That person runs the grand jury. They decide when and where each session will start and end. They take roll of the jurors at the beginning of each session; they communicate with the court and decide if a juror should be disqualified. The presiding juror may issue subpoenas for additional witnesses if a majority of the panel agrees. The presiding juror decides the sequence of witnesses and discharges witnesses when their testimony is finished. They issue the oath to witnesses and advise witnesses if they are the target of the investigation. They review the indictment for correctness and assure it is properly signed. A deputy presiding juror is also selected to fill in for the presiding juror if they cannot attend a session.

The judge will then charge the jury by giving them detailed instructions regarding their duties and their powers and responsibilities. The judge does this orally, and a written copy is also provided to the jurors.

Once the jurors are empaneled and understand their duties and authority, the prosecutor presents their evidence to the grand jury. The evidence may take the form of documents, recordings, or witnesses. If the prosecutor is aware of exculpatory evidence, he must present it to the grand jury. The prosecutor instructs the grand jury on the applicable law and the standard of proof. The standard of proof is that it’s more likely than not that probable cause exists to bind the defendant over for trial. If that sounds like a low standard, it is. Sol Wachter, the New York State Chief Judge, famously once said, “a grand jury would indict a ham sandwich if that’s what you wanted.” The rules of evidence do not apply in grand jury proceedings, and the prosecutor may present hearsay evidence.

In Idaho, Grand Jury proceedings are recorded, either by a court reporter or electronically. The recordings must be made available to the prosecutor, the person charged, their attorney, and anyone accused of perjury before the grand jury. Grand jury recordings are not available to the public or members of the media. Grand jury proceedings are secret, and grand jurors are sworn to keep what they hear confidential. The only people present are the panel, the prosecutor, the court recorder, and any witnesses. The only exception is that a child witness may have a support person present.

The reason Rob Wood and Rachel Smith have asked the court for a grand jury rather than a preliminary hearing must be obvious by now. Compare what we saw at Chad Daybell’s preliminary hearing on the current charges with the grand jury process. The advantage is that grand juries are secret. The secrecy is vital in this case because of all the pretrial publicity. Prosecutors do not want their case made public for fear it will further taint the jury pool with information about the case.

So what happens now? According to Court TV, the court has issued grand jury subpoenas to community members in the jury pool. Those names are often drawn from licensed drivers. The summoned community members will appear at the courthouse, and the court will select and qualify 16 people. Usually, the court randomly selects 16 people from the summoned pool and questions them. If the judge finds a juror isn’t qualified or can’t be fair, the judge replaces that juror with another juror from the pool and questions them, repeating the process until 16 qualified jurors are seated. The jury is then sworn in, and the prosecutor begins presenting the evidence.

The grand jury is scheduled to meet from May 17 to May 20. When he requests a grand jury, the prosecutor tells the court how long he believes it will take to present his case. While it’s an estimate, I think we can expect the grand jury to reach an agreement and issue indictments by May 20, 2021. And yes, I do expect the grand jury will issue indictments. I don’t believe Rob Wood and Rachel Smith would be asking for a grand jury if they didn’t think they could meet their burden of proof.

I’m sure this news comes as a great relief to many of the family members related to the case. It’s important to remember that if the grand jury indicts Lori and Chad, it’s only the beginning of a long road. While it gives the families hope of closure, there are still awful and emotional days ahead for them.

We don’t know what the charges will be or if any of them will carry the death penalty. There will be months of pretrial jockeying, and court hearings before trials are set. I would not expect murder trials until late 2022 at the earliest.

There are continuing rumors about Lori’s mental health. While she may have experienced a mental health crisis while in jail, it appears that the prosecutor believes she is competent and is pressing forward with the more serious charges.

As I’ve discussed before in this newsletter, Idaho does not permit defendants to use the insanity defense. The exception would be if the defendant were so mentally ill that they couldn’t form the necessary mental state (knowingly, intentionally, etc.) to commit the crime. In general, evidence that a person took steps to avoid detection is proof that they knew what they were doing was wrong, and therefore were competent at the time of the crime. The more significant issue is her current mental state. Is she able to understand the nature of the charges against her and the proceedings and aid and assist her counsel? If a person is found to be incompetent to stand trial, there is a process by which the defendant receives treatment to be restored to competency. It’s rare for a person to be found permanently unable to aid and assist. Usually, a finding that the defendant is incompetent is temporary and results in delay, not dismissal.

I know we all will be waiting impatiently for May 20, 2021, and the results of the grand jury.