Will the Judge Ban Cameras in the Courtroom? Hearing set on Unsealing motions.

Hello Friends.

There was a hearing last week on Lori Vallow's motion to limit cameras in the courtroom. Rob Wood not only concurred but suggested the court eliminate cameras altogether. However, Stephen Wright, attorney for the media, argued to keep cameras in the courtroom.

Many of you have asked whether I think the judge will ban cameras in the courtroom. I think you know how strongly I feel about transparency in the criminal justice system. Cameras go a long way to ensuring that the public can fulfill their responsibility to oversee the process and hold their government officials to account. I think the judge understands this and will permit the cameras to continue but will set stricter guidelines for where the cameras and microphones will be located. I agree that the long periods of zooming in on Lori's face were intrusive and probably unnecessary. I also understand why people are so interested in her appearance and expressions. I agree that the lawyers should know when the microphones on their tables are hot and, at a minimum, should be able to mute the microphones when speaking to their clients.

The first issue the court took up in this last hearing also had to do with Lori's appearance and whether she would be allowed to wear street clothes while she was in court. The court agreed that Lori could continue to wear street clothes when she comes to court, even during motion hearings. In most cases, inmates appear in jail garb for any hearing that doesn't involve a jury. The argument from Lori's lawyers was that every time Lori appears in court, it's live-streamed, and her lawyers don't want her to be seen in jail garb when it might influence potential jurors. That's reasonable, and the judge allowed it. Criminal defendants are entitled to appear in court in street clothes and reasonably groomed. Defense lawyers and their staff are often called upon to provide trial clothing, and many public defender offices have a trial closet of clothing for clients who are appearing at trial. People subconsciously think a person is guilty when they see them in jail scrubs. I will never forget combing the stores in Bend, Oregon, searching for turtleneck tee-shirts in the middle of summer to cover my client's questionable neck tattoo.

And while we are on the subject, can I just say something? I don't know what the rules are for Lori about her hair and makeup, but can we just stop about it? Whenever she appears in court, some people incessantly comment about her appearance and are outraged that she's allowed to style her hair and put on makeup. Around the time she was transferred from the mental hospital back to jail, she was allowed to color her hair. I don't know the circumstances, but she likely had more leeway in the mental health facility. It also looks like the lightened parts are beginning to grow out, and I doubt she will be able to color it again soon.

I'm not sure why so many people are so outraged that Lori is permitted these small amenities. Perhaps it's because she has always been considered pretty, or maybe because she so clearly was a woman who traded on her looks. Be assured that no one is allowing Lori to use her looks in court, but she is entitled to humane treatment. We live in a society where hair and makeup are part of nearly every woman's daily grooming. She is given access to a hair curler and some makeup before court. Men are allowed haircuts, shaving supplies, or beard trimmers. Women are permitted reasonable grooming supplies, including the ability to style their hair and some makeup. She is allowed to use those things under supervision either at the jail or while in the courthouse holding cell. Her attorneys will ensure that she continues to wear clothing that makes her look ordinary. They will opt for pastel colors and unremarkable styles. That's simply how things are done.

Let's remember what's important. Lori Vallow and Chad Daybell are on trial for the murder of three people. They are facing the death penalty and are entitled to a fair trial. The families of the victims are counting on this process for justice.

As you all likely know, my motions to unseal all the documents have finally been accepted, and a hearing has been set to hear them on October 13, 2022, at 9 am. As you may also know, I wrote a letter to the chair of the Idaho Supreme Court's Media Committee. I have included the text of the letter below. The court released it to the public.

___________________

September 2, 2022

Justice Gregory W. Moeller
Idaho Supreme Court
PO Box 83720
Boise, Idaho 83720

Dear Justice Moeller:

I am writing to you because you are the head of the Media committee for the court. As I understand it, the Idaho Supreme Court either has or had a Media and Court Conflicts Resolution Panel that was also known as the Fire-Brigade. Unfortunately, I have not discovered how one refers a matter to this panel, so I am contacting you directly.

I am a retired criminal defense lawyer, licensed and inactive in Oregon and Arizona. I am an author under contract with a publisher to write a book about the Lori Vallow and Chad Daybell cases. The case numbers are CR22-20-0755, CR22-21-1623, CR22-20-0838, and CR22-21-1624. The case is assigned to your Fremont County District Court successor, Judge Stephen Boyce. I have been covering this case since the beginning, and I have recently found information that I find very troubling.

Since the cases began in March 2020, Judge Boyce has ordered what is, in my experience, an unusual number of documents sealed. The number of sealed documents led me to research the criteria for sealing documents in Idaho cases. I discovered that Judge Boyce had not followed the procedures set out in ICAR 32. He did not hold a hearing after notifying parties and interested parties and did not make written findings.

As a media member, I filed motions on July 30, 2022, to unseal the documents. I filed a motion to intervene in the case to challenge the sealed documents. Judge Boyce denied my motions on August 18, 2022, finding that my motion to intervene was not a proper filing in Idaho. I revised the motions and refiled them on August 24, 2022. I purposely omitted my home mailing address in my motion and sent it to the court in a separate letter. The court didn't accept that and rejected my filings the same day pursuant to ICR 2.3(a)(4). I then rented a mailbox and refiled the documents on Friday, August 25, 2022. The motions remained in the Fremont County court's Odyssey e-file inbox "under review" for seven days before they were returned late on Friday afternoon for an error in the document footer. It's clear that the court has instructed the clerk to comb the documents for any mistakes and is playing games to avoid hearing the motions. I have now refiled my motions for the fourth time.

As I am sure you know, the Daybell case has garnered international attention. I write a popular blog about the legal issues in the case and have appeared on two popular YouTube true crime programs discussing the case. People interested in the case know me, so after I filed motions to unseal the documents, I was contacted by an internet detective. This person is an avid internet researcher and gave me some troubling information.

Early in the case, the internet detective researched all the people involved and found some social media posts that bothered them. It seems that several people close to the case, including the judges, the prosecutors, and law enforcement officers, were posting inappropriate comments online. The internet detective, who wishes to remain anonymous, documented their findings and sent copies to both the prosecution and the defense. Judge Boyce and Judge Eddins, prosecutors, and law enforcement may have been in a county employee Facebook group. It's difficult to substantiate since they have all scrubbed their social media accounts.

Mr. Daybell's attorney, John Prior, filed motions based on the information. First, he asked to dismiss the indictments because of irregularities in the grand jury. I speculate that at least one of the jurors must have seen the information in the Facebook group posts. Judge Boyce denied the defense motion. Next, Mr. Prior filed a motion to dismiss the case and/or to disqualify all three prosecutors. Judge Boyce also denied those motions. Mr. Prior then sought leave to file an interlocutory appeal of the decision. Today, the court held a hearing on that motion. The hearing was, of course, closed to the public. All motions, hearings, documents, and information associated with those motions have been sealed. I understand Judge Boyce has also issued a secret sealed gag order in the case. This level of secrecy is alarming and likely illegal.

The first amendment protects press access to criminal matters to ensure that the government is doing its job properly. That transparency ensures that the defendants receive a fair trial, and the victims' families can be assured justice has been served. It is impossible to fully explore the extent of the possible prejudice to the defendants in this case because of the level of secrecy. Yet, each time Judge Boyce seals another document, he claims he is doing so to protect the defendant's right to a fair trial.

In fact, it appears Judge Boyce has engaged in a systematic coverup of the possible misconduct of the prosecutors, law enforcement, himself, and his judicial colleague. As recently as August 25, 2022, he entered another order, reaffirming the sealing of all the documents relating to the misconduct, doubling down.

In the meantime, my motion to unseal the documents is repeatedly rejected so that Judge Boyce does not have to rule on them and risk opening the documents.

While the pretrial social media posts were ill-advised, possibly prejudicial, and in violation of RPC 3.6, it is the systematic coverup of the information that is most troubling.

Yesterday, Ms. Vallow's attorneys filed a motion to exclude cameras from the courtroom for future court proceedings. Unfortunately, that motion has the potential to further limit the access of the press to the proceedings.

Your honor, I sincerely hope I am wrong. But as a former officer of the court myself and a lifelong advocate for the rule of law and the Constitution, I can't sit by and watch these government officials subvert justice. I hope you can assist me in bringing this conspiracy of silence into the open.

___________________

Copies of this letter were sent to all the attorneys, the judge who acts as the Judicial Administrator for the Seventh District, and Judge Boyce. It has been published in the court record and is available to the public.

Some people have expressed concern that my motions will unfairly benefit the defense. Not true. Remember, if illegality or misconduct is going on in this case, it could undermine any convictions. As I said in this letter, I sincerely hope I am wrong about what is in the sealed documents. I believe that unsealing the documents will reveal that there has been a systematic attempt to cover up misconduct on the part of the prosecution. The fact that the prosecution and the investigative team members may have commented about the case and the evidence on social media would have been bothersome but not necessarily fatal to the state's case. The fact that they, with the help of the judge, may have covered up that misconduct is.

This is a case that can make careers. Unfortunately, if history is any indication, it can also destroy careers. Let's remember Casey Anthony's lawyer, Jose Baez; his representation of Anthony cost him tens of thousands of dollars to defend against complaints against him. And who can forget that the prosecutor, Juan Martinez, and the defense attorney, Kirk Nurmi, were both disbarred because of their work on the Jodi Arias case? Mark Means may have been right in what he was saying all those months ago; it's also possible that he went about it wrongly and will likely be disbarred over it.

When this kind of case falls to you, it's easy to conclude that you're the best person to prosecute or defend it. Rob Wood has been heard saying that even though Tylee and JJ were only in Rexburg for a short time, he felt they belonged to the community. Over the months and years, he has also formed a relationship with family members, particularly Kay and Larry Woodcock. It's only human not to want to let people down and to feel committed to seeing the case through to the end. However, those things don't take away from the problems that may have arisen with his continuing representation.

The people who read my newsletter trust me to be objective and tell the truth. I told the truth when I said Mark Means was not equipped to handle Lori's case. I also told the truth when I said I thought John Prior was competent, even though many of you don't like him. I'm telling you the truth now, as I know it today. I believe there has been a coverup of an exchange of some small town, good-ol’-boy, mean-spirited gossip. The gossip isn't the problem; the coverup is. Had Judge Boyce been a more experienced judge, he could have handled it openly and moved on. Instead, I think he got scared and tried to keep it quiet to protect people's professional reputations.

For those old enough to remember Richard Nixon, it wasn't the break-in to the Democratic Party's headquarters at the Watergate Hotel that ruined him. Instead, it was a systematic coverup.

I don't know if the hearing on my motions will be live-streamed, but I hope it will be. Of course, it depends on the judge's decision on cameras in the courtroom. I expect the judge and all the parties will come to that hearing locked and loaded for argument.