Why Would Lori Waive Her Objection to Joinder?
Does she just want to see Chad,
or is there more?
September 16, 2020
I’ve thought a lot about the legal reasons Lori might waive her objection to the joinder of her trial with Chad, and to be honest, I can’t find one.
As I outlined in my last newsletter, there may be a significant argument NOT to join the cases. Here is a quick recap of that.
Under Idaho law, cases are appropriately joined when the charges and the evidence are the same. Chad and Lori’s charges are different.
Chad’s charges look like this:
Count 1: Destruction, concealment, or alteration of evidence (JJ)
Count 2: Conspiracy to destroy, conceal or, alter evidence (JJ)
Count 3: Destruction, concealment, or alteration of evidence (Tylee)
Count 4: Conspiracy to destroy, conceal or, alter evidence (Tylee)
Lori’s charges look like this:
Count 1: Conspiracy to destroy, conceal or alter evidence (JJ)
Count 2: Conspiracy to destroy, conceal or alter evidence (Tylee)
For every criminal charge, there are elements that the prosecutor must prove. Here are the elements of IC 18-2603, Destruction, alteration, or concealment of evidence:
On or about a particular date that is within the statute of limitations
In a county within the state of Idaho
A person
Knowing that any book, paper, record, instrument in writing, or other object, matter, or thing is about to be produced, used, or discovered as evidence
Wilfully
Destroys, alters, or conceals the evidence
With intent to prevent it from being produced, used, or discovered.
And here are the elements of IC 18-1701, Criminal Conspiracy
On or about a particular date that is within the statute of limitations
In a county within the state of Idaho
Two or more persons
Conspire to commit a crime or offense AND
One or more of the persons does any act to effect the crime.
As you can see, what the prosecutor has to prove is very different in both crimes. The prosecutor has to prove all this against Chad, but only the second part as to Lori. Thinking it through, Lori could be found guilty of conspiracy, based solely on her text messages and the fact Chad bought duct tape. There would not necessarily need to be any discussion of the actual way the children’s bodies were destroyed, concealed, or altered. But, to prove the first charges as to Chad, the prosecutor will have to bring in all the evidence about the condition of the evidence – the children’s bodies – and how it came to be in that condition. That’s very emotional evidence, and it’s possible, a jury could find Lori guilty on her charges based on the evidence presented to prove the charges against Chad. That is why defense attorneys oppose joint trials, and that is why I think Mark Mean should have opposed the joinder of the trials.
Although Mark Means may very well have done this same analysis and may have advised his client to oppose the joinder, ultimately, an attorney is ethically bound to follow his client’s wishes. So why would Lori want the trials joined? Many people have speculated that it is because she wants to see Chad and be in the courtroom with him, dressed up pretty. That could be one reason, but I think there might be another.
I believe Lori sees it is her responsibility as a faithful wife under the doctrine of the Church of Jesus Christ of Latter-Day Saints, to defer to her husband in all things, even in trial. In the LDS faith, wives are subject to their husband’s “priesthood” in all things. Wives only obtain their resurrection and exaltation to the Celestial Kingdom through their husbands. That is why it’s so critical in the faith for a woman to marry. According to the LDS Journal of Discourses, vol. 5, p. 291, “No woman will get into the celestial kingdom, except her husband receives her, if she is worthy to have a husband, and if not, somebody will receive her as a servant.” A woman’s salvation is dependant on her husband’s “priesthood authority,” which he receives when he is endowed with the keys to the Aaronic Priesthood in a ceremony at about age 12. Girls do not receive priesthood authority; they can’t be saved unless they are sealed to a male who has priesthood authority.
A husband’s priesthood authority gives him a greater connection to God and a better opportunity to discern God’s will through personal revelation. Lori’s traditional LDS belief in her place as a wife may be what led her to direct Mark Means not to object to the joinder. Beyond wanting to sit in the same room with him, Lori believes it is his right and responsibility to direct their legal process. Her view of Chad as “the prophet” further amplifies her desire to defer to him in all things. That may also be why John Prior’s objection to joinder was so tepid and toothless. He may have felt his response was a compromise, allowing him to preserve an objection for appeal while honoring his client’s wishes.
Mark Means filed a motion to permit Lori to wear street clothes and have access to cosmetics and hair products. That’s a very typical sort of pretrial motion. And yes, Lori is very concerned about her appearance, but her attorney is concerned about jury impressions. When a defendant appears before a jury in jailhouse orange and belly chains, the jury, on a subconscious level, jumps to the conclusion that the defendant is guilty. We never want our clients to appear before a jury in jail clothing or restraints. For example, I practiced in a jurisdiction where defendants were required to wear a leg brace style restraint under their street clothing in court. The device made them walk with a decided limp and required that they push a catch on the side to sit down. Once seated, the device wasn’t visible. In that case, I always insisted my client enter and be seated before the jury came in, so they never saw my client limping in and fumbling with the thing on their leg.
It appears that a hearing on pretrial motions, sometimes called an omnibus hearing, is scheduled for October 29, 2020, at 9 am, except for the hearing on the motion to change venue, which is scheduled for November 24, 2020, probably because it could take a full day to hear. It also appears that Lori’s trial has been moved up from April to March. That date will surely change again if her trial is joined with Chad’s.
