Will Preliminary Hearings be live-streamed?
To zoom or not to zoom, that is the question.
Sunday, July 26, 2020
By now, you’ve seen that special prosecutor Rob Wood has requested that Chad Daybell and Lori Vallow’s preliminary hearings not be broadcast. Chad’s lawyer, John Prior, has objected. And you’re thinking, “what the heck is going on?” If you think that’s backward from what usually happens, you’re not wrong.
Tomorrow, Monday, July 27, 2020, there is a hearing set to determine whether the preliminary hearings, now set for Chad on August 3 and 4 and for Lori on August 10 and 11 will be live-streamed. Don’t get me wrong; I want them live-streamed as much as the next person; I want as much firsthand information as possible for my book.
Lawyers get good at sleuthing out what their opponent is thinking by what they do. Let me see if I can outline what both may be thinking.
I’ve heard and seen a lot in Facebook groups and podcasts that people are nervous that Chad and Lori won’t be charged for the deaths of the children. I believe murder charges are coming. Let’s remember that the state only gets one shot at this. Think about it this way. A shotgun approach won’t work. The shot needs to be a precision sniper shot, and that takes time to set up.Rob Wood is carefully and methodically putting his case together. He wants a first-degree murder charge.
Under Idaho law (IC 18-4003), there are aggravating factors to be met. Here are the aggravating factors:
Poison or
Lying in wait or
Torture intended to inflict suffering, execute vengeance, extort something or for sadistic reasons or
Any willful, deliberate and premeditated killing
Murder of a peace officer, fireman, judge or DA
Murder while under a sentence on parole for a prior murder
Murder while committing or attempting:
Battery on a child under age 12.
Arson
Rape
Robbery
Burglary
Kidnapping
Mayhem
Terrorism
Under IC 18-204, “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense or aid and abet in its commission, or, not being present have advised and encouraged its commission, or who, by fraud, contrivance, or force, occasion the intoxication of another for the purpose of causing him to commit any other crime, or who, by threats, menaces, command or coercion compel another to commit any crime are principals in any crime so committed.”
That is why collecting the most minute piece of evidence is crucial. Facts matter. Speculation does not. Rob wood is combing through the evidence with tweezers and a magnifying glass.
So why would he not want the preliminary hearings live streamed? Here are two reasons. First, the investigations are not complete. To charge Chad and Lori with murder, he needs to forge an unbreakable chain of facts. He has to be able to prove every element of his case. Lawyers often start with what the jury will be instructed and work backward, using the instructions as a roadmap for the case, so let’s take a look at the uniform jury instruction in Idaho. The bracketed information is optional language based on the theory of the case. (Idaho Criminal Jury Instructions can be found at https://isc.idaho.gov/main/criminal-jury-instructions.
701. Murder is the killing of a human being [without legal justification or excuse and] [with malice aforethought]
[or]
[by the intentional application of torture]
[or]
[in the perpetration of, or attempt to perpetrate, [an aggravated battery on a child under twelve (12) years of age] [arson] [rape] [robbery] [burglary] [kidnapping] [mayhem] [an act of terrorism] [use of a [weapon of mass destruction] [or] [biological weapon] [or] [chemical weapon]]] .
[A “human being” includes a human embryo or fetus.]
[The killing of a human being is legally [justified] [or] [excused] when (describe the particular justification or excuse, such as “done in self-defense”). You will be instructed later on the elements of legal [justification] [and] [excuse.]
704. In order for the defendant to be guilty of First Degree Murder with malice aforethought, the state must prove each of the following:
1. On or about [date]
2. in the state of Idaho
3. the defendant [name] engaged in conduct which caused the death of [name of decedent],
4. the defendant acted without justification or excuse,
5. with malice aforethought, and
6. [the murder was perpetrated by means of poison];
[or]
[the murder was perpetrated by lying in wait];
[or]
[the murder was a willful, deliberate, and premeditated killing. Premeditation means to consider beforehand whether to kill or not to kill, and then to decide to kill. There does not have to be any appreciable period of time during which the decision to kill was considered, as long as it was reflected upon before the decision was made. A mere unconsidered and rash impulse, even though it includes an intent to kill, is not premeditation];
If you find that the state has failed to prove beyond a reasonable doubt any of the elements one(1) – five(5) above or failed to prove any of the circumstances listed in element six(6), you must find the defendant not guilty of First Degree Murder. If you find that elements one(1) – five(5) above have been proven beyond a reasonable doubt, and you unanimously agree that the state has proven any of the above circumstance[s] under element six(6) beyond a reasonable doubt, you must find the defendant guilty of first degree murder. [You are not required to agree as to which circumstance under element six (6) you find to exist.]
If you find that the state has failed to prove any of the above, you must find the defendant not guilty of first degree murder. If you find that all of the above have been proven beyond a reasonable doubt, then you must find the defendant guilty of first degree murder.
As you can see, understanding the method and manner of death are essential. Rob Wood has a lot to accomplish. He has to prove all the elements of the crime, as outlined in the above jury instructions beyond a reasonable doubt.
What does this have to do with the preliminary hearings, you ask? Wood is still looking at the events and the deaths with those tweezers and that magnifying glass. In the midst of that, he has to deal with the charges he filed to keep Chad and Lori in jail. Those charges were necessary, but they also get in the way. Lori and Chad were charged with the destruction or concealment of evidence.
18-2603. DESTRUCTION, ALTERATION OR CONCEALMENT OF EVIDENCE. Every person who, 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 upon any trial, proceeding, inquiry, or investigation whatever, authorized by law, wilfully destroys, alters or conceals the same, with intent thereby to prevent it from being produced, used or discovered, is guilty of a misdemeanor, unless the trial, proceeding, inquiry or investigation is criminal in nature and involves a felony offense, in which case said person is guilty of a felony and subject to a maximum fine of ten thousand dollars ($10,000) and a maximum sentence of five (5) years in prison.
Rob Wood must go to court in August to prove that there is sufficient evidence that Chad and Lori willfully destroyed altered or concealed evidence to prevent it from being discovered to bind them over for trial. The standard of proof isn’t high, but it will still require that he outline the way the bodies were found and the condition in which they were found. It means introducing a lot of sensitive information about the crimes at a time when Wood is still tweezing through the evidence. I would expect Wood’s case to include Alex’s cell phone pings, details about how the search was conducted, testimony from the searchers, and photographs of the bodies. That’s information Wood does not want available to anyone who can grab a screenshot; it tips his hand about his trial strategy, makes his investigation more difficult, and make it less likely that a fair and impartial jury can be seated in any later murder charges.
Why might John Prior, Chad’s attorney, want the preliminary hearings live-streamed? For many of the reasons I outlined above. First, it gives him a preview of Rob Wood’s case. Second, it rushes the investigations, and third, it puts prejudicial information into the public consciousness that may skew a jury later. All of those factors weigh in a defendant’s favor. At long range, a scatter of shotgun pellets is much easier to survive than a surgical sniper’s bullet; the less time a shooter has to line up his shot, the better. The issue of finding an impartial jury with the massive publicity, in this case, is an issue that could tie up appeals for years. That will be particularly crucial if Wood decides to seek the death penalty.
I know it’s hard to be patient. I know it’s agonizing, waiting for the other shoe to drop, but let’s give Rob Wood some grace as he works to line up the perfect shot.
On Friday: Part Three of the series on whether Chad and Lori's beliefs were a motive for murder.
