Why Did the Judge Vacate Today's Hearing After a Private Conference?
Well, well, well. What does it mean?
Fremont County moved up the hearing on Prosecutor Rob Wood's motion to compel discovery from March 10 to today. I'm not sure why they changed the date, but I can assure you it's not unusual. Court hearings are carved in Jello, not in marble. In advance of the hearing, both sides filed motions and briefs. Let's see if we can boil down the issues.
As I wrote in my last newsletter, expert witnesses are treated differently than lay witnesses. The basis of all the rules of evidence and the rules of criminal procedure is to present the most accurate, credible, and reliable information to the finder of fact. The finder of fact can either be the judge or a jury. If a person presents themselves as having special knowledge or skill in a particular area, it carries more weight with the finder of fact. Experts can express opinions, and lay witnesses can't. That's why we want to be sure that the expert's credentials are the real deal and why we want to discover and possibly impeach them with any information that might indicate bias. If, for example, the case involves a vehicular homicide and the defense hires an accident reconstruction expert, we want to know what education makes him an expert, how long he's been an expert, if he teaches others to be experts, or publishes articles about his expert knowledge. We want to know if he only takes cases from the defense side or is often hired by either side. We want to know how many times he's testified in court. We want to know how he reached his conclusions and if he's offering diagrams or computer simulations, who prepared them.
The rules require that each side discloses to the other any expert witnesses they plan to call and reveal their educations, experience, and any articles or books they have published, and their specific report about their evaluation of the issues in the case. In the Vallow-Daybell case, the experts for the hearing on the motion to change venue are intended to testify whether there is bias in the Fremont County community. There seem to be several potential witnesses.
Early in the case, the defense employed a couple of people to take the community's temperature. One was Andrea Schaat; the other was Joe Adriany. Ms. Schaat doesn't have an online presence that I could find, so there's no way to know her qualifications. Joe Adriany is a private investigator. Mr. Adriany operates something called Columbo Investigations. He doesn't have a website either. From the disclosures provided by the defense, it appears Mr. Adriany has law enforcement experience but no credentials related to determining bias in a community. Why hire these people? The most straightforward answer is probably money.
Research surveys usually cost between $35,000 and $100,000, depending on the survey size. Here is the problem: survey results have a very short shelf-life. A single headline or new development can change public opinion and render an expensive survey irrelevant. You don't want to peak too soon. There were likely problems finding the money for a study. The ultimate situation just before the hearing was that Mark Means had given Rob Wood the information he was seeking. He provided Rob Wood with the name and the qualifications of the person doing the study. However, Rob Wood had also filed what are called Motions In Limine. And, yes, this is yet another case of lawyers and judges using Latin phrases to make it seem they're smarter than you. A motion in limine is a motion to limit evidence or testimony being introduced. It's a preemptive strike. It's to keep the information from ever being introduced at the hearing or trial. Rob Wood wanted to limit the defense from calling either of the first to informal pollsters.
So here's the weird part: first, the judge called Mark Means into a breakout room (the Zoom equivalent of going into chambers with the judge). A few minutes later, Prosecutor Rob Wood let the clerk know that the judge asked for Wood, Chad Daybell's attorney John Prior, and the court reporter to join the private conference. After several minutes, the court resumed the public zoom session and announced that the private conference had been recorded and the judge was ordering it sealed. He then announced that based on that conference, there was good cause to vacate today's hearing and the hearing set for March 22, 2021. The court set a pretrial scheduling hearing for April 7, 2021, at 1:30. The March 22 hearing was set to hear the motion to change venue and Mean's Motion to Dismiss. Now we're left to read the tea leaves and decide what this means. There are a few possibilities.
The parties agreed to the change of venue, and the hearing wasn't needed. But if that were the case, why seal the record? It would be more likely that the judge would simply announce the agreement.
The defendants have agreed to a plea. Possible. If so, we can expect a motion to change their plea from not guilty to guilty and be sentenced. Possible, but a bit unlikely. Why would either plead to these charges when Rob Wood has made clear murder charges are coming? I can't imagine any prosecutor making a deal not to prosecute murders in return for pleas in these low-level felonies, so what would they gain by pleading guilty?
My best guess? New charges are coming that will make all these hearings irrelevant. Tantalizingly possible. What good would it do to have all these hearings IF the state intends to dismiss the current charges after they are included in a new indictment that included murder charges? I've said all along that I believe Rob Wood was waiting for Tylee's autopsy report. I think the way her body was disposed of is a critical part of Wood's case, and I expect the charges to reflect it. I also realize that grand jury proceedings are probably pretty cumbersome under the rules about COVID-19. I think today's events may indicate new charges are imminent.
