Who is Filing All These Documents?
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The last week has seen a flurry of documents filed between the parties, and two hearings are coming up that I want to talk about.
Let’s jump in with a big shout-out to Fox 10 Phoenix’s Justin Lum for always being first to post new documents.
Two hearings are coming up. The recent documents relate to those upcoming hearings. There is a hearing tomorrow (February 17, 2021, at 9:30, am) on Mark Mean’s Motion to Compel Discovery and a hearing on March 22, 2021, at 9:00 am to take up the Motion to Change Venue as well as Mean’s Motion to Dismiss.
Mark Means has been alleging, complaining, and generally bitching about discovery from early days. Here is another place where his inexperience as a criminal attorney shows up. In civil cases, attorneys have to dig for evidence and information. There is no affirmative duty to exchange discovery and opposing counsel doesn’t have to volunteer any information the other side doesn’t ask for. That means that the discovery process in civil cases is more adversarial and prone to “gotcha!” moments.
In criminal cases, the law says that both sides have a duty to turn over all relevant information, including information that tends to prove the other side’s case, even information that proves the defendant isn’t guilty. The U.S. Supreme Court first ruled that in Brady v. Maryland, 373 US 83 (1963). The court’s ruling was later codified in the laws of all the states, including Idaho. In most cases, a defense attorney might send a blanket request at the beginning of the case for all discovery pursuant to the law. The duty to turn over discovery materials is ongoing, so any time the prosecutor gets new information, it has to be turned over to the defense. Not all defense attorneys even send discovery requests, but it’s a good idea to document your request in case there are discovery questions later on appeal. Usually, discovery questions in criminal cases are resolved with a phone call.
It seems that Mark Means is approaching discovery as a civil attorney would rather than as an experienced criminal lawyer would. We have not heard any complaints from Chad’s attorney, John Prior, about discovery problems. Mark Means seems to believe that information is being withheld or provided to John Prior, but not to him. Prosecutor Rob Wood’s answer is contained in his Response to Supplemental Declaration of Counsel Mark L. Means in Support of Motion to Compel. In the document, Wood lays out all the facts regarding the discovery questions. Means claimed that John Prior had received a hard drive filled with information that was not also given to Means. Wood explained that his office was unsure whether some electronic discovery and forensic reports had been provided to John Prior, and out of an abundance of caution, they re-sent the files to him on a hard drive. Wood pointed out that Means had previously received this same information as part of the earlier Madison County case against Lori (that would be the earliest charges of abandonment etc.).
There’s s no question discovery, in this case, is already voluminous. There are probably thousands of electronic messages, phone calls, computer searches, photographs, police reports, and more. It’s hard to keep track, and many lawyers have specialized databases for that purpose. It’s not surprising that Mark Means was confused about what he had, but it is surprising that he felt the need to file motions over it. That’s a civil tactic. Usually, a simple phone call can resolve the problem. Sometimes, defense attorneys and their staff even meet with prosecutor’s staff to compare discovery and ensure they have everything, not because the prosecutor is withholding evidence, but simply because mistakes and oversights happen.
There are times when the relationship between the defense and the prosecution is so damaged that they don’t trust anything the other says unless they are in front of a judge. It’s unfortunate, but that may be the case here. Collegial, professional relationships require that the parties trust one another, and once the trust breaks down, it‘s difficult to rebuild.
The next motions have to do with Mark Means’ ongoing crusade against the Fremont County jail. Again, this may be because Means has so little experience with jails. To repeat, at the risk of being obnoxious, the judge has no authority to order the jail to do anything. If the court believes privileged information was recorded, the judge’s only recourse is to exclude the evidence. Judge Boyce also has no authority to tell the jail how to run their business. He can’t tell them to let Means have face-to-face contact with Lori and can’t order the jail to give her access to a cell phone. Jail communication is recorded and monitored. That’s just a consequence of being in jail. I can’t see where a hearing has even been set on that motion, but John Prior filed his own declaration, letting the court and everyone else know he has no beef with the jail. This little jab gives some credence to the rumors I’ve heard that Means and Prior don’t get along.
Today, Means filed a motion about tomorrow’s hearing. As usual, it’s barely comprehensible. Means is asking for a status conference “under seal” with the judge. Presumably, he means private status conference that is not broadcast to the public. Status conferences are typically used to apprise the judge of how the case is going and to schedule future court dates.
Means previously filed a motion asking the judge to reconsider his decision on the motion to disqualify Rob Wood. In general, a motion for reconsideration would be used when a lawyer believed that perhaps the judge overlooked a relevant and controlling case or piece of evidence that was presented at the hearing. It isn’t used to introduce new information or evidence. The judge denied the motion without setting a hearing. In the case where there’s no new evidence to be presented, it’s the judge’s prerogative whether to set a hearing to hear additional argument or just rule on the documents submitted. Judge Boyce obviously thought he’d heard enough. Means wants the judge to reconsider his denial of the motion to reconsider because Means didn’t have the opportunity to file a memorandum, laying out all the reasons he thought the court should reconsider the decision not to disqualify Wood.
It makes less sense because tomorrow’s hearing was supposed to deal with Means’ discovery motions. There is nothing in the court record that indicates that tomorrow’s hearing had anything to do with the Motion to Reconsider or the motions he filed about jail access. It’s possible the court is just as confused, and we may have to wait until tomorrow to see what develops.
