It's too Quiet!
But are they still dancing in the background?
August 30, 2020
Caution: this is a long post. If you’ve missed this Friday’s regular post, it’s because, during this lull in the Vallow/Daybell case, I’ve been trying to think of things that might interest readers. I thought perhaps you’d like to know what I think is going on during this time.
Although there seems to be little going on, this time is anything but slack for the people involved. Let’s look at what they might be doing.
Special Prosecutor Rob Wood, police and investigators. Everything that happens in the case is based on what Rob Wood does. Wood has been careful and methodical, and he has Lori and Chad right where he wants them. They are both in jail on at least a million-dollar bail. All their communication with anyone except their lawyers is monitored and recorded. Wood has the luxury of taking his time and building his case, piece by piece. Many keep asking why neither has been charged with murder, but a prosecutor can only charge what he can prove. Let’s look at what a prosecutor in Idaho must prove to bring a first-degree murder charge:
On or about or between a particular date (This is to prove the crime is within any possible statute of limitations).
In, (County), Idaho (This is to prove the crime occurred in the state and county and so the judge in that state/county has jurisdiction).
Chad Daybell/Lori Vallow (this is to prove that they are legal entities (people or corporations that are subject to the criminal law).
Killed a human being (includes a human embryo or fetus)
Without legal justification (like self-defense)
With (Mental State):
Malice aforethought OR (Malice may be express or implied. Malice is express when there is manifested a deliberate intention to kill a human being. Malice is implied when the killing resulted from an intentional act, OR the killing is the natural consequence of an act that is dangerous to human life, AND the act was performed with knowledge of the danger and with a conscious disregard for human life. The term “aforethought” does not mean deliberation or a lapse of time, only that the malice must precede the act.
By the intentional application of torture OR (Torture is the intentional infliction of extreme and prolonged pain or brutality with the intent to cause suffering).
While perpetrating or attempting to perpetrate the following:
Aggravated battery on a child under age 12
Arson
Rape
Robbery
Burglary
Kidnapping
Mayhem(terrorism)
The outline above gives some idea of the complexity facing Rob Wood. Items 1 and 2 appear easy to prove. We know a range of dates that the crimes happened and that they happened in Fremont or Madison Counties in the State of Idaho. Item 3 is where the questions start. Let’s take them one at a time.
3. Rob Wood must prove that Chad or Lori CAUSED the death of the children. In Idaho, that can come in a couple of ways. First, they could actually have committed the killing. Second, they could have aided or abetted in its commission, or not being present, could have advised and encouraged its commission, or by fraud, contrivance or force caused intoxication to someone to cause them to commit the crime. You can already see how complex and how fact-driven the case will become. Wood is collecting information to prove how the children died.
The autopsies of the children, Tammy, Alex Cox, and Joseph Ryan, are all critical. How were they killed? The toxicology reports are essential. There are standard substances the toxicologist will test for, such as alcohol; analgesics (acetaminophen, ibuprofen, tramadol, and aspirin); antidepressants (imipramine, amitriptyline, and SSRI like Prozac and Zoloft); antihistamines (doxylamine, chlorpheniramine, diphenhydramine); antipsychotics (haloperidol and risperidone); benzodiazepines (valium, Xanax, zolpidem zopiclone, zaleplon); cannabis; cardiovascular drugs (diltiazem, disopyramide, and propranolol); cocaine; narcotics (codeine, methadone, pethidine, morphine, hydrocodone, oxycodone, fentanyl); stimulants (amphetamine, methamphetamine, MDMA/ecstasy, pseudoephedrine, fenfluramine, phentermine, caffeine). Toxicologists will also test for less common substances such as anticonvulsants (lamotrigine, valproate, phenytoin); barbiturates (phenobarbital, butalbital); designer drugs, (synthetic cathinone and cannabinoids); Digoxin; gamma-hydroxybutyrate; LSD; and environmental toxins such as carbon monoxide, cyanide, pesticides and herbicides, and heavy metals. There is no single test or a handful of tests that can identify these substances. They often must be tested for individually in a painstaking process.
While Alex Cox’s autopsy report indicates that he died of natural causes, Arizona authorities report that his death is still “under investigation,” likely because toxicology tests are still being run. Likewise, for Tammy Daybell. I suspect, like Alex, her initial report is done, but the toxicology testing could take many more months. Similarly, the initial testing for basic drugs has been completed for Joseph Ryan, but not the more sophisticated and time-consuming tests. Joe Ryan’s remains were cremated at Lori Vallow’s direction, but samples were kept and tested beginning in July 2020.
Rob Wood is also collecting information that would prove Chad and/or Lori aided, abetted, or advised or encouraged someone else to commit the murders, presumably Alex Cox. Since Cox is dead, investigators are combing through thousands of hours of text messages and cell phone pings to create a map and a timeline of each of their movements. It’s been reported that Lori and Chad used burner phones, making the process even more complicated.
4. This one seems clear since humans are dead.
5. Without legal justification. The term is something lawyers call a “term of art,” which means it has a specific legal and fairly universal definition. It covers those defenses that excuse the act. The excuse can be that the defendant was acting in self-defense or defending someone else against immediate death or serious bodily harm. Legal justification also covers mental disease or defect, in states where, unlike Idaho, the defense is permissible. Alibi is usually also considered a legal justification. In most states, the defense must notify the state of its intent to use any of these legal justifications. As you may recall, Rob Wood has asked twice for the defense attorneys to notify him if they intend to raise mental disease or defect in their cases. Mark Means has answered that the request violates Lori’s constitutional rights, but has not explicitly indicated how. Idaho Code 18-207 says, “(1) Mental condition shall not be a defense to any charge of criminal conduct.” The second paragraph of that statute deals with sentencing after conviction. Although mental disease or defect can’t be used as a defense, it can be used to mitigate a sentence once the defendant is convicted.
6. With Malice aforethought. This term is also a term of art. It generally means a deliberate intention, either to commit the killing or to commit an act that results in the killing. The facts surrounding each defendant and each victim can be very different. You can bet Rob Wood is filling files, either virtual or actual, at an astounding rate.
So far, we’ve only talked about what the state must do; turning to the defense, they must do all of that, in reverse. Some of you may remember a great quote from Ginger Rogers, who said of dancing with Fred Astaire, “I did everything he did, but backward and in high heels.” Sometimes that’s how it feels to be a defense attorney.
Lori Vallow and Chad Daybell and their attorneys, Mark Means and John Prior. While Lori and Chad cool their heels in custody, their lawyers are dancing as fast they can. There are some questions that they have to ask.
Can I attack the process that underlies the charges? If a defense attorney can attack the process, they never have to put the facts before a jury. I know many people think of this as “loophole” justice, and it is, but hear me out when I say that process is essential. As citizens, we want a fair and appropriate process for ourselves and our loved ones. A process that requires that the police respect our privacy, and get warrants to search our property and that they have probable cause before they can arrest us. A process that allows up to remain silent and have legal representation. One that requires that we receive notice of the charges against us, that we are presented with the evidence, are able to call witnesses in our defense and have the chance to confront and question the witnesses against us; that we are entitled to know if the state has evidence that might prove our innocence and the right to have our case presented to a jury of our peers. Because we want those rights, if we are ever arrested, we must make sure they are applied in EVERY case. It’s the defense attorney’s responsibility to assure that every client is afforded their constitutional rights. Sometimes that means that cases get thrown out because police didn’t follow proper procedure, or courts didn’t assure a fair process. Means and Prior are combing though the case, looking for violations – places where the police or the process were wrong. That investigation could result in motions to suppress evidence that was obtained illegally. Sometimes, if a judge throws out the evidence because of police error or misconduct, it results in a dismissal of the charges. Sometimes it also means law enforcement has to go back and reinvestigate, to see if they can find evidence that is unrelated to the illegal search or seizure. Means and Prior will be looking through every search to assure it was done legally.
Can I make an argument for a justification defense? In most states, that includes self-defense and mental disease or defect. As I’ve outlined in a few other posts, Idaho does not allow for a mental disease or defect defense. It does allow the defense to put on evidence that a mental disease or defect made it impossible for the defendant to manifest the malice aforethought necessary. There is no indication in any of the deaths except possibly Charles Vallow’s, that anyone was acting in self-defense. Alex Cox claimed he was acting in self-defense when he shot Charles. Still, the Arizona authorities have said they intend to charge Lori with conspiracy to commit murder, which suggests that they didn’t buy the self-defense excuse.
How do I raise reasonable doubt at trial? This analysis is essential, not only for trial but also for plea negotiations. If I can poke holes in the evidence, I may be able to convince the prosecutor that he doesn’t have enough evidence to convict my client or get him to plead the case to a lower and more provable charge. For example, if Means can poke holes in the conspiracy to commit murder facts, he may be able to limit Lori’s conviction to the current charges of destroying evidence. As the defense attorney reviews each piece of evidence, he will look for chances to call it into question. Did the laboratory that tested the sample use standard lab processes and procedures? Did they protect the chain of custody, or could someone have tampered with the sample? Did the FBI even look for that silly dead raccoon? If they didn’t, can I say, “you didn’t look for the raccoon, so how do you know Chad’s story about killing the raccoon isn’t true?”
Can my client get a fair jury in this jurisdiction? The defense attorneys are gathering information to make a case for moving the trial to a different venue. The argument for moving the trial requires data. That’s why people in Rexburg are reporting to social media that canvassers are surveying attitudes about and awareness of the case.
What objections must I make to protect my client’s case on appeal? Trial attorneys often work closely with appeals attorneys to assure they are preserving any grounds for appeal. Even in a case with overwhelming evidence, there may be issues for appeal. Those can range from simple rulings by the court about what evidence is admitted, to broader questions, like when does testimony become vouching? The issues on appeal are often complicated and esoteric questions of law and its application to the facts of the case.
What jury instructions are best for my client? At trial, both attorneys will be required to submit their requested jury instructions to the judge. The judge will decide which of those standard instructions will be given to the jury, and whether the instructions will be given to them orally or in writing, and if given orally, whether the jury will be able to review a recording of the instructions.
What post-trial issues must I raise? States vary on the issues that can be raised post-trial, but attorneys must think about which, if any, are appropriate to their case.
If my client is convicted, how do I mitigate the sentence he or she might receive? In murder and other complex felony cases, sentencing is a crucial phase. If the state seeks the death penalty, there will be an entire penalty phase of the case and an entire team of mitigation specialists. Even non-death penalty cases need careful preparation for sentencing. Nowhere is that more important than in states like Idaho, that still have determinate sentences where judges still have broad discretion. The information presented at sentencing can make the difference between a year before being eligible for parole and five years.
So you see, while it may seem there isn’t much going on, Fred and Ginger are dancing like crazy.
Analysis of Chad's current charges
What does the prosecutor have to prove and what is the possible sentence?
August 21, 2020
I want to say thanks to all of you that have subscribed. It’s a reality of today’s publishing market that publishers want to see that an author has an online platform. They want to know that an author has a community of people who are interested in her subject matter and her work. I started this site and my newsletters to build that platform for a book that could be two or three years in the future. The content is free, and I hope it adds to the conversation. I’ve met some interesting and remarkable people through the site, and I enjoy exchanging ideas with all of you. As of this morning, there are almost 1200 subscribers. I also know many don’t subscribe but do read the posts once they’re posted in the archive. Whichever you choose, thanks for taking the time to engage with me on this fascinating journey.
Thanks to Nola Vee for this question.
For those of you that have not heard yet, Chad Daybell was arraigned this morning on four felony charges. These are the charges that were the subject of the preliminary hearing on August 3 and August 4, 2020. There are four counts. 1) Destruction, alteration, or concealment of evidence; 2) Conspiracy to commit destruction, alteration or concealment of evidence; 3) Destruction, alteration or concealment of evidence; 4) Conspiracy to commit destruction, alteration or concealment of evidence.
Nola wants to know what the prosecution will have to prove and what the possible sentence could be for the charges Chad was arraigned on today.
Let’s run through what happened today. An arraignment is a time when the defendant is formally notified of the charges against him. The defendant is informed that they have a right to an attorney, and if they have not retained counsel, the court will appoint a public defender. The defendant is then asked to tell the judge whether they are pleading guilty or not guilty. If the defendant had a preliminary hearing, he should already have an appointed attorney. If a grand jury made the charges, he may not. If the person has just been appointed a public defender at arraignment, the judge should give the defendant additional time to meet with his new lawyer to evaluate the case. In Chad’s case, John Prior was prepared to enter Chad’s plea of not guilty.
A plea of not guilty now does not stop Chad from changing that plea to guilty later. A pretrial conference was set for December 10, 2020, at 10:30 am. The trial is scheduled for three weeks in January 2021, beginning on Monday, January 11, 2021, and finishing on Friday, January 29, 2021.
For every crime, the prosecutor must prove each and every element. The elements of IC 18-2603, Destruction, Alteration, or Concealment of evidence are:
Date. On or about or between specified dates. This assures that the charge is within the statute of limitations.
Location. In the county of Fremont. This assures that the crime occurred in a location that this court has jurisdiction over.
Chad Daybell – the charged must be a person and must be identified as the person who is alleged to have committed the crime.
Wilfully – this is the required mental state, IC 18-101 give us the definition, “a purpose or willingness to commit the act or make the omission referred to.” The law does not require proof that the defendant intended to break the law, injure another, or obtain an advantage.
Defendant knew that the evidence is the subject of a trial, proceeding, inquiry or investigation,
Defendant Destroyed, altered or concealed any book, paper, record, instrument in writing, or other object, matter or thing
That was about to be produced, used or discovered as evidence at a trial, proceeding, inquiry or investigation authorized by law,
The proceeding inquiry or investigation involves a felony offense.
Conspiracy further adds these elements:
Two or more people
Combine or conspire to commit any crime
One or more of the people does any act intended to effect the crime
For Rob Wood to prevail, he has to prove that Chad Daybell, committed an act in Fremont County, on or between specific dates, that is against the law; specifically, that Chad Dabell knew that the bodies of the children were the subject of an investigation, and he willfully concealed, destroyed or altered that evidence and that the investigation involved criminal acts. In the case of the conspiracy charges, Wood must also prove that Chad conspired or combined with one or more other persons and that one or more of them took some step or act to commit the crime.
From the evidence we know, it seems like Wood will be able to make his case. Chad is identified as the person charged (he confirmed that he was named correctly in the charging document at his arraignment today). The property is in Fremont County, Idaho. The evidence of a crime, human remains, was concealed on his property by being buried. Tylee’s remains were also dismembered and burned. He knew the evidence was the subject of an ongoing investigation into the whereabouts of the children. He conspired with one other person to conceal the evidence (probably Alex Cox).
The issue of sentencing is confusing to the layperson. All state criminal statutes lay out a maximum punishment, both in time in prison and in monetary fines, leading people to think that is the presumed sentence. It’s not. Most states also have sentencing guidelines. That means that in nearly all cases, the court will not sentence the defendant to the statutory maximum. Many states have adopted sentencing guidelines. I am most familiar with the guidelines in Oregon, which look like this:
In states that have sentencing guidelines, each crime is categorized, and the judge must follow the guidelines. It’s is called determinate sentencing. Idaho has not adopted a determinate sentencing scheme. According to IC 19-2513, the judge must determine a minimum period of confinement and a subsequent indeterminate period. For instance, The judge could sentence Chad to a maximum of five years, with a minimum of one year to be served before he would be eligible for parole. During that first year, he would not be eligible for parole, credit for good conduct, or release or furlough to any program. Once the indeterminate part of the sentence starts, he could be eligible for all those things. The fines, fees, and costs that could be assessed against Chad are also at the judge’s discretion.
So, could Chad be sentenced to four consecutive sentences? Not quite, because of a legal theory called merger. If you are convicted of several crimes that arise out of the same criminal act or occurrence, the sentences for those charges merge into the most severe sentence. So in Chad’s case, there are clearly two different criminal acts or occurrences, one on September 9, 2019, for Tylee and one on September 23, 2020, for JJ. That means the maximum Chad could be sentenced to would be five years on each occurrence, with some period, to be determined by the court, to be served without parole. The sentence for JJ could be stacked consecutively on top of the sentence for Tylee, for a total of ten years. I hope that makes sense because it’s a little legal-nerdy.
It’s important to think of the bigger picture in this case, too, because JJ and Tylee’s deaths are not the only crimes. Prosecutors have to think like chess masters – always three moves ahead. Rob Wood has to look at the case from two places. First, from the granular present, where he is focusing on the case, he can prove now, and second, from the thirty thousand foot level, where those charges intersect with other parts of the case. He has to think about how other charges, even charges in other jurisdictions, can help him prosecute them to the full extent of the law. Sometimes that means going easier on one person to get them to give up another, more severe crime. That was the subject of my earlier post titled “Will Chad Turn on Lori or Vice Versa?
Nola Vee, I hope this answered your question.
Can They Do That?
Render Unto Caesar What is Caesar's and Unto God What is God's
August 21, 2020
The Church of Jesus Christ of Latter-Day Saints keeps secrets and suppresses criticism. So do many other faiths. Catholics and Muslims both come to mind. When church and state collide, sparks fly. The United States Constitution is clear; churches cannot interfere with the legal and constitutional administration of justice.
Recently, the Church of Jesus Christ of Latter-Day Saints released a letter on the subject of “Involvement in Legal Proceedings.” It’s no coincidence that the letter was dated and released on the second day of Chad Daybell’s Fremont County, Idaho preliminary hearing. Ninety-six percent of the population of Rexburg, Idaho, are members of The Church of Jesus Christ of Latter-Day Saints. The Church’s letter reminded “leaders and members of a long-standing policy that Church leaders should not involve themselves in civil or criminal cases regarding members in their units, quorums or organizations without first consulting with the Church legal counsel.”
Lori Vallow Daybell’s attorney, Mark Means, issued an open response, finding the “correspondence alarming and concerning…”
Means is right. Clearly, the letter is intended to protect the Church of Jesus Christ of Latter-Day Saints. Church doctrine is implicated in the Lori Vallow/Chad Daybell case. Both Lori and Chad are lifelong members of The Church of Jesus Christ of Latter-Day Saints, and their odd beliefs are twists on doctrines traced directly to the Church and the teachings of the first Prophet, Joseph Smith. While it follows that the Church would like to distance themselves from Chad and Lori as much as possible, the Church is not entitled to protect itself at the expense of the administration of justice, and to discourage members and leaders alike from involvement in civil and criminal cases serves to undermine justice. There is no assurance that consultation with Church lawyers, whose sole purpose is to represent the Church, will serve either the individual or justice. Just the opposite may be true. It’s not hard to imagine circumstances under which an organization like this that holds so much sway over the daily life of its members, their livelihoods, and their social connections, could offer enticements or threats to discourage members from testifying. Mr. Means is correct – that constitutes witness tampering.
Mark Means' letter, makes many relevant and important points. Those who doubt Mr. Means' intelligence or legal knowledge should take a closer look at his letter.
In my opinion, the issue boils down to two points: 1) The United States Constitution guarantees the separation of Church and state and governs the criminal justice system, and 2) The Church of Jesus Christ of Latter-Day Saints has historically recognized that separation. Let’s examine both points.
The First Amendment of the United States Constitution, as amplified in the case of Reynolds v. the U.S., 98 U.S. 145 (1878), ” has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” Many scholars point out that the first amendment is a guarantee of freedom from religion as much as it is a guarantee of the freedom of citizens to practice religion as they choose. The operation of our government and the enforcement of its laws are secular and thereby available to everyone, regardless of their religion. While many argue that our government is based on the Judeo-Christian ethics of its founders, none would argue that ecclesiastic law should supplant the secular administration of justice.
The United States Constitution enumerates the rights afforded to every citizen, regardless of race or religion. Those rights, contained in the First, Fourth, Fifth, and Sixth amendment include:
A pretrial hearing or grand jury in felony cases.
Insures a person can’t be tried for the same crime twice
Protects a person from self-incrimination.
Assures fair proceedings in any case where an individual’s life, liberty, or property are at risk.
Mandates compensation when the government takes your property.
Protects people in their homes against unreasonable search and seizure.
Requires search warrants.
Insures the right to a speedy trial by an impartial jury.
Assures an individual the right to be informed of the charges against him or her.
Guarantees the right to counsel and to call witnesses.
Requires that reasonable bail be set.
Requires sentences that are commensurate with the crime.
The Fourteenth amendment expanded the rights to all the states and ensured the due process of law in all actions, and equal protection under the law to all citizens.
These are rights that cannot be abridged by any church.
The history of the Church of Jesus Christ of Latter-Day Saints and the government of the United States is fraught with conflict. The early Church and its doctrines were unpopular, and Church members found themselves run out of several settlements before they landed in Utah. When the Saints settled in Utah, it was not a state. In fact, Brigham Young intended to form a sovereign LDS state, which would be governed by the Church. But as surrounding states began incorporating and joining the union, that dream became less plausible. Many in Utah saw the benefit of U.S.statehood, but the federal government made clear that statehood was not possible as long as the Church continued to sanction plural marriage. In September 1890, President Wilford Woodruff released the following manifesto:
“To Whom It May Concern:
Press dispatches having been sent for political purposes, from Salt Lake City, which have been widely published, to the effect that the Utah Commission, in their recent report to the Secretary of the Interior, allege that plural marriages have been contracted in Utah since last June or during the past year, also that in public discourses the leaders of the Church have taught, encouraged and urged the continuance of the practice of polygamy—
I, therefore, as President of the Church of Jesus Christ of Latter-day Saints, do hereby, in the most solemn manner, declare that these charges are false. We are not teaching polygamy or plural marriage, nor permitting any person to enter into its practice, and I deny that either forty or any other number of plural marriages have during that period been solemnized in our Temples or in any other place in the Territory.
One case has been reported, in which the parties allege that the marriage was performed in the Endowment House, in Salt Lake City, in the Spring of 1889, but I have not been able to learn who performed the ceremony; whatever was done in this matter was without my knowledge. In consequence of this alleged occurrence the Endowment House was, by my instructions, taken down without delay.
Inasmuch as laws have been enacted by Congress forbidding plural marriages, which laws have been pronounced constitutional by the court of last resort, I heareby declare my intention to submit to those laws, to use my influence with the members of the Church over which I preside to have them do likewise.
There is nothing in my teachings to the Church or in those of my associates, during the time specified, which can be reasonably construed to inculcate or encourage polygamy; and when any Elder of the Church has used language which appeared to convey such teaching, he has been promptly reproved. And I now publicly declare that my advice to the Latter-day Saints is to refrain from contracting any marriage forbidden by the law of the land.”
Woodruff’s manifesto is seen as recognition that the law of the land must be observed and obeyed. When discussing the separation of church and state, many followers of the New Testament, including members of the Church of Jesus Christ of Latter-Day Saints, cite Matthew 22:21: “Render unto Caesar what is Caesar’s and unto God what is God’s.” The LDS doctrine, as set out in Doctrine and Covenants Commentary, Desert Book Co., 1954, page 339, amplifies that scripture by directing the faithful to “obey every law of God including the constitutional laws of the land in which he lives and do so with a good and honest heart.” The constitutional law of our land assures that a person accused of a crime has the right to confront his or her accusers and the witnesses against him or her.
All this leads to the conclusion that, as Mark Means points out, the Church should not be directing its members and leadership not to “involve themselves” in civil or criminal matters without first consulting Church legal counsel. Further, Means points out, rightly, that the Church should not be pressuring the faithful to obstruct justice by defying legally- issued subpoenas. (“However well-intentioned, Church leaders sharing information in legal proceedings can sometimes be misinterpreted and even damaging. Such sharing can be especially harmful to victims and their families. Following the Church’s policy also keep the Church from being inappropriately implicated in legal matters.”)
Means also points out that the Church’s legal counsel has no duty of confidentiality or care to the member consulting them, and people consulting with those lawyers have no protection under the clergy-penitent privilege either. The Church’s legal counsel represents the Church, not the member; and the Church counsel must protect their client. Church members who received a subpoena to testify in court should consult independent legal counsel.
It’s clear (and perhaps understandable) that the Church wants to control the message coming out of the legal proceedings. It’s also clear that the Church has no place in those proceedings and should not be attempting to influence whether their members appear as witnesses.
It’s also clear that the Church’s letter may make finding a fair and impartial jury may be more difficult than ever and may support the defense’s motion to change venue to someplace with less intense Church influence.
Many have asked about whether the letter could be the basis of a mistrial. Mistrials are generally the product of something that happens during the trial and calls into question whether the defendant can get a fair trial. Some reasons would be because of juror misconduct, or because some piece of evidence was presented to the jury that tainted their ability to make a fair decision (especially if it occurred accidentally). Mistrials are also called if the jury can’t come to a conclusion and becomes deadlocked.
Who Could Be Turning?
Let's spill some tea -
will Chad turn on Lori or
vice versa?
August 19, 2020
Oddly, the answer to this question starts with the death penalty and a bunch of death penalty statistics. In 1972, the U.S. Supreme Court struck down capital punishment statutes in Furman v. Georgia, and reduced all pending death sentences to life imprisonment. Following that ruling, some states began reintroducing the death penalty with statutes that complied with the Furman decision. Presently, 28 states, the federal government and the U.S. military have the death penalty. Twenty-two states and the District of Columbia do not. Death penalty convictions have been on the decline. Convictions peaked with 279 in 1999; in 2019, there were just 34 death penalty convictions. The decrease illustrates a change in social and legal attitudes. Organizations like the Innocence Project, and documentaries like The Innocence Files and Innocent on Death Row illustrate the danger of wrongful convictions.
Some states, like Oregon, still have a death penalty statute on the books but have an ongoing moratorium on executions. Critics of lethal injection dispute the claims of a painless death, and the chemicals used in those executions are becoming harder for states to procure. The statistics seem to show the tide turning against the death penalty and in favor of life without parole sentences, also called true life and natural life sentences.
There are two states where Chad and/or Lori could be charged. The first is Idaho. Idaho has executed only three people since the death penalty was reinstated in 1977. There are presently seven men and one woman on Idaho’s death row. The three executions took place in 1994, 2011, and 2012.
The Idaho death row inmates are: Thomas Creech who was sentenced to death in 1983. He was already serving two life sentences when he was convicted of beating a fellow inmate to death. Gerald Pizzuto came to death row in 1986 for the beating deaths of two people. His appeals focus on whether he is intellectually disabled. Timothy Dunlap has been on death row since 1992. He also has a death sentence in Ohio. He was convicted of killing his girlfriend with a crossbow in Ohio, then killing a bystander in a bank robbery in Idaho a few days later. Robin Row, the only woman on Idaho’s death row was sentenced to death in 1993 for the arson deaths of her husband, son, and daughter. James Hairston’s execution of two elderly people for money landed him on death row in 1996. Erick Hall was sentenced to death once in 2004 an once in 2007 for the kidnap, rape, and murder of two women. Abdullah Azad began his death row sentence in 2004 for the arson murder of his wife, and Jonathan Renfro received his death penalty conviction in 2017 for the shooting death of a police officer.
I include this information as background. In all the cases currently on death row, the convicted person was the direct cause of the victim(s) death. The first hurdle for Idaho prosecutor Rob Wood will be to connect Chad and/or Lori to the actual mechanisms of death. In other words, Wood will have to prove it was Chad or Lori who killed Tylee and JJ, and not Alex Cox, acting as the cult hitman. Likewise, if the autopsy results for Tammy Daybell reveal she was poisoned, Wood will have to prove Chad was the one who tipped the potion into Tammy’s food or drink. Because these suspects used a lot of communications devices and applications, charges of conspiracy to commit murder will probably be easier for Wood to prove. While the statute in Idaho says that the penalty for conspiracy is the same as for the underlying crime of first-degree murder, I don’t think Wood gets to the death penalty that way. And, without the death penalty as leverage, I don’t see Rob Wood getting Chad or Lori turning on one other. Is there anything else that could create that same kind of leverage in Idaho? I don’t think so. Rob Wood would have to make significant concessions, and because of the nature of the crimes, I don’t see him doing that.
Yes, you say, but what about Arizona? The State of Arizona has a more robust relationship with the death penalty that Idaho. Since they reinstated the law in 1976, there have been 37 executions. There are three women and 116 men currently on death row. In some of those cases, there was more than one person involved. Several cases involve the deaths of children. There are no cases, however, that involve only conspiracy to commit murder or an apparent murder for hire. While I don’t see a charge that would allow Arizona to use the death penalty as leverage, I do see something that could break the cases open.
Stick with me here; I’m about to dive into the weeds. The possible charge in Arizona for Lori is conspiracy to commit murder which stems from the death of her fourth husband, Charles Vallow. Conspiricy to commit first-degree murder is punishable by life in prison without eligibility for parole until the defendant has served 25 years. Conspiracy to commit second-degree murder is punishable by life in prison with the possibility of parole after 16 years, but if there are mitigating factors, the minimum served could be decreased to ten years; if there are aggravating factors, the minimum could be increased to 25 years. These charges might offer space for negotiation, especially if the Idaho authorities are unable to connect Chad or Lori to the actual act of killing Tylee, JJ, or Tammy. The Arizona authorities could offer Lori a plea to conspiracy to commit second-degree murder for Charles Vallow, with a 10-year minimum sentence in return for her giving up information about Chad’s involvement in Idaho, especially if the information connects him directly to causing Tammy’s death.
For this to happen, the prosecutors in Arizona and Rob Wood and the Idaho Attorney General’s office would have to get together and fashion a global deal that would resolve all of Lori’s charges in both states. It’s complicated, but not impossible.
In terms of personality, I think Lori is the more pragmatic (some might say calculating) of the two. She is more likely to see the benefit of the possibility of parole in ten years, rather than 25. Lori is 47 years old, so the deal could be the difference between being paroled at age 57 or age 72.
The charges in Idaho are less clear cut than Arizona. It appears that Alex Cox was the one who actually killed Tylee and JJ and that Chad and Lori were accessories and conspirators. It also seems likely that Chad was the one who caused Tammy’s death. If Idaho can get the full story out of Lori, and better still, if she leads them to some physical evidence to support her story, they convict Chad for murdering Tammy. In return, Idaho might be willing to forgo their own conspiracy to commit murder charges against Lori and allow her to be sentenced in Arizona. Lori would probably plead guilty to the current charges of concealing or destroying evidence and perhaps some other charges, depending on the evidence. Idaho authorities could even agree to let their convictions run concurrently with the Arizona sentence. And yes, I feel the outrage that she might not be punished directly for her role in the death of her children, but if the prosecutors in both states don’t get creative and Chad and Lori remain united, the outcome could be worse.
None of us know what evidence the prosecutors in either state have, so this is all educated speculation on my part, based on the evidence we've all seen so far. Still, if investigators can’t prove either Chad or Lori actually did the killing, this may be the best outcome available. And don’t shoot the messenger.
Change of Venue?
What is it and why might
Chad and Lori Want one?
August 18, 2020
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As we wait for new developments in the Lori Vallow and Chad Daybell case, there is a lot of discussion on social media about a change in venue.
Venue, and its close cousin, jurisdiction, are legal fundamentals. Jurisdiction is who has authority over the case; venue is where the case will be tried—generally, jurisdiction and venue overlap. A case is tried in the state and the county or municipality where the crime happened because judges only have authority over matters that occur in the places where they preside. Once a case is charged in the county in which it occurred, it should be tried there unless there is some reason to move the proceedings.
Another interesting point is that the language used in laws and rules is quite specific and intentional. For instance, lawmakers use must and shall when the judge has no discretion to make a different decision and words like may when the court can deviate from the law under some circumstances.
Note in the following rule that the word “must” is used. The words “convenience” and “prejudice” also have specific meanings in the law. It’s unusual for a case to be moved for convenience, but I can think of instances where it might happen. Say, for example, criminal negligence caused a train crash that damaged property and injured many people in a remote area. A court might move the proceeding closer to the site to make it easier for witnesses, who might still be recovering, engineers, and accident experts who might still be working on the site, medical personnel who treated casualties, local law enforcement, and nearby property owners. Note that when a case is moved for convenience, the decision is discretionary. The judge may transfer the case. The Vallow and Daybell cases don’t fall into this category.
The other reason a trial might be moved is for prejudice, which is quite applicable to the Vallow and Daybell cases. If a change of venue is requested, the move is not discretionary if the judge first finds that there is no way to hold a fair and impartial trial in the county. The court must move the trial. There have been social media reports of people canvassing in Rexburg. They are polling the public on whether they’ve heard of the defendants, and if they have if they’ve formed an opinion about them. I expect the results of their survey will be that most people in the area know about and have formed an opinion about the case. The issue of prejudice is layered in this case. First, there has been international coverage of the case. The facts are salacious; as many as six deaths may be connected to Lori Vallow and Chad Daybell, and two of the victims are children. Second, the case involves unusual religious beliefs inspired by the teachings of The Church of Jesus Christ of Latter-Day Saints. Roughly ninety-six percent of the people in Fremont and Madison counties are members of the Church. Worldwide, Church members are angry about the way Chad and Lori and their followers twisted mainstream LDS beliefs.
Idaho Criminal Rule 21. Transfer for Trial
A motion for transfer may be made at or before arraignment or at any other time the court or these rules prescribe.
(a) For Prejudice. On motion of either party, the court must transfer the proceeding to another county if the court is satisfied that a fair and impartial trial cannot be had in the county where the case is pending.
(b) For Convenience. On motion of the defendant, the court may transfer the proceeding to another county, for the convenience of parties and witnesses, and in the interest of justice.
(c) Proceedings on Transfer.
(1) Transfer Within a Judicial District. If the proceeding is transferred to a court of proper venue within the same judicial district, the judge granting the transfer must:
(A) order the case transferred to a specific court of proper venue within the judicial district; and
(B) continue the assignment over the case, unless the administrative district judge reassigns the case to another judge of the judicial district.
(2) Transfer to a Different Judicial District. If the proceeding is transferred to a court of proper venue in a different judicial district, a new presiding judge is assigned as follows:
(A) If the original judge desires to continue the assignment over the case, the judge may so indicate in the order, suggesting a court of proper venue, and refer to the administrative director of the courts for assignment by the Supreme Court to a court of proper venue and for assignment of a specific judge to preside; or
(B) if the original judge does not desire to continue the assignment over the case, the judge must enter an order transferring the case without specifying the new place of venue, and then refer the case to the administrative director of the courts for assignment by the Supreme Court to a court of proper venue in another judicial district and assignment of a specific judge to preside in the criminal proceeding.
(d) Disqualification of Judge.
(1) Transfer Within a Judicial District. If a judge is disqualified from further handling of a proceeding which has been transferred to a court of proper venue within the same judicial district, the administrative district judge must reassign the case to another judge of the judicial district.
(2) Transfer to a Different Judicial District. If a judge is disqualified from further handling of a proceeding that has been transferred to a different judicial district, the administrative district judge of the receiving judicial district must refer the case to the administrative director of the courts for assignment by the Supreme Court to a court of proper venue and assignment of a specific judge.
The rule allows the assigned judge to either stay on the case and suggest a place of venue or relinquish the case for reassignment to a judge in the new judicial district. Candidates for relocation include Boise, in Ada County, which has a population of more than 228,000 with 15% being members of the LDS church, and Idaho Falls, in Bonneville County, with a population about 64,000, 23% of whom are Church members. Another possible location in Twin Falls, in Twin Falls County, with a population of about 87,000, about 12% of which identify themselves as Church members. If the judge finds that the defendant can’t get a fair trial in the current venue, the lawyers and judges do not have the right to dictate where the trial will be moved. The presiding judge can suggest if that judge asks to remain on the case. Ultimately, it will be the decision of the state court’s administrative director, the person who oversees the courts statewide, to decide where the trial will be held.
I expect that Chad and Lori’s defense attorneys, either jointly or separately, will move for a change of venue, and I expect it to be granted. The only question will be, where? I predict Boise because of its population, but a judge could find that Idaho Falls or Twin Fall make more sense for the convenience of people traveling. Idaho residents, I would love to hear your opinions, since I am not familiar with any of the communities.
Ineffective Assistance of Counsel
Can a bad lawyer get you a new trial?
August 14, 2020
People on social media have commented on Lori Vallow Daybell’s attorney, Mark Means. Mr. Means’ website lists family law, workers’ compensation, personal injury, bankruptcy, business litigation, and mediation as his specialties. Criminal law is missing from his resume. Means’ apparent lack of criminal law experience has been the topic of many questions, including questions about whether Means’ performance could be the basis of an appeal.
Some of you may think that I an defending Mark Means in this post because you think attorneys stick together. I don’t know Mark Means, so like you, I can only is what I’ve seen in the media. The difference is, I can also apply what I know from experience. That experience leads me to conclude that Means is not incompetent or ineffective as the law defines it.
The Idaho Rules of Professional Conduct govern lawyers in Idaho. The rule regarding competence and the related comments are as follows:
RULE 1.1: COMPETENCE A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Commentary Legal Knowledge and Skill [1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances. [2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question. [3] In an emergency lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest. [4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person. See also Rule 6.2 Thoroughness and Preparation [5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. See Rule 1.2(c).
Sixth Amendment of the U.S. Constitution guarantees “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The appellate challenge that a defendant had ineffective counsel is memorialized in Strickland v. Washington. The Strickland case outlines the test for determining if a defendant’s counsel was ineffective. Both retained, and court-appointed attorneys can be found ineffective under Strickland. The Strickland test asks two questions (what judges call a two-pronged test). 1) Was counsel’s performance deficient? And, 2) Had it not been for counsel’s deficient performance, would the result of the trial or sentencing have been different? If you recall, this is precisely what the appeals court in the Jodi Arias case said about prosecutor Juan Martinez. The court ruled even though Martinez’s performance was deficient because he was leaking information about the case to a blogger he was sleeping with, Arias was convicted on the strength of the evidence against her.
Many convictions have been upheld, including a notorious case where the defense attorney slept through most of his client’s trial, because of the no-harm-no-foul rule. In other words, a defense attorney appearing and performing little better than a potted plant is permissible if the state can prove the evidence against the defendant proved their guilt anyway.
Mr. Means doesn’t seem to be a polished and experienced trial attorney, but let’s be clear, he’s also not a potted plant. Not all lawyers excel in the courtroom. We are convinced by television that trials should look like a Law and Order episode, where, in the space of an hour, polished actors find simple solutions to complex crimes. Lawyering requires many skills, most of which don’t happen in the courtroom. A lawyer’s ability to analyze a case and communicate with their client can be more important than the ability to think fast on their feet and not stutter. It appears Mr. Means doesn’t have an experienced legal assistant, and typos and mistakes creep into his pleadings. Sometimes it’s hard for a layperson to look past style to the substance.
Lawyers are flawed, fallible humans with both strengths and weaknesses, just like everyone else. We don’t know why Lori hired Mark Means and fought to keep him on the case, but the relationship between an attorney and his client requires trust and confidence, and it appears he has Lori’s. Even if you believe he is not the most likable, accomplished, or polished trial attorney, in my estimation, he is competent, which makes it unlikely that an appeal for ineffective assistance of counsel would prevail.
Lori and Chad's Jail Call
What was that June 9, 202o jail call all about?
August 8, 2020
Since Chad’s preliminary hearing on Monday and Tuesday, there have been a lot of questions on social media about the call between Lori and Chad on the morning police found the children. Why did Rob Wood introduce the recording? What does it mean to the case? I’ve listened to the call many times. Here is my best shot at a transcription, my thoughts about its meaning and its significance to the prosecution.
Lori: Hi, Babe.
Chad: Hello.
Lori: Are you OK? This is the first thing Lori asks. Rexburg is a small community, and this case is all over local and national news. As you might recall, when police showed up at Chad’s house, it was out on the airways and social media in real-time. Nate Eaton was in a helicopter flying over the property, and someone else had already posted drone footage. Lori knew they were searching and where. That’s why her first question is, “are you OK?”
Chad: Well, They’re searching the **** property.
Lori: The house right now?
Chad: Yeah yeah for more evidence.**** so, Mark means will be talking to you. Remember, at this time, Mark Means was still representing them both. He probably had more information and was able to explain to Lori what was going on without his call being recorded. Chad may even have been able to send Lori a message through Means. Still, I doubt Chad’s communication with Means was all that substantive because Judge Eddins would later find that the attorney conflict was waivable, and Means could stay on Lori’s case.
Lori: OK, what? Are they in the house? Lori knows there’s a search on, and she is trying to find out where they are searching. She can’t ask if they are searching the yard for bodies on a recorded line.
Chad: No, they’re out on the property. Chad tells her they are looking in the backyard. He tries to sound vague and nonchalant.
Lori: Are they seizing stuff… Again? Remember, they know these calls are recorded. Lori couldn’t ask outright if police have found the bodies, so she asked if the police are seizing “stuff,” and after a pause, adds “again.” The “again” is to make it sound less like what she is really asking, which is, did they find anything in the yard yet?
Chad: They’re searching. Chad is telling her they are still looking hard.
Lori: Mmm. Lori’s response is hushed, followed by a pause
.
Chad: There’s a search warrant and so …****to take evidence with the kids, This sentence is unfortunately very garbled, but Chad is telling her there is a search warrant, and they are looking for the evidence relating to the kids. There have been other search warrants, but they have been related to Tammy’s death.
Lori: OK, mmm.
Chad: Yeah I saw you tried to put up a call, I’m glad you called.
Lori: Yeah.
Chad: So, We’ll see what transpires. Chad swallows hard here, listening to the recording.
Lori: ‘Kay.
Chad: Yeah, I don’t really…
Lori: What do you want me to do…?
Chad: What? Chad’s sharp response made some people wonder. He sounded surprised or shocked. I’m not so sure about this. They are talking over each other, and that makes the conversation confusing.
Lori: …pray? Some have speculated that this exchange, about praying, may be in code, that pray may be a code for some other action, because of Chad’s response.
Lori: What do you want me …?
Chad: Yeah, pray and …yeah
Lori: OK, what can I do for you?
Chad: I’m feeling pretty calm, I would call Mark, though maybe. Just talk with him.
Lori: Have you talked to him already?
Chad: I did call him, yes.
Lori: So he knows what they’re doing?
Chad: Yes Looks like I got a call from somebody else that I need to talk to, but I love you so much. The call could be a call from one of his family members, or it could be a call from John Prior, who began representing him later than afternoon.
Lori: OK, I love you. Should I try to call you later?
Chad: Um, I don’t know, I.. I don’t know, you can try, I’ll answer if I can. Chad knows the situation is bad, and that he may not be able to answer a phone call.
Lori: OK
Chad: I love you, and we’ll talk soon
Lori: OK baby, Iove you
Chad: Love you, bye.
Why did Rob Wood introduce this at the preliminary hearing? The call, even with its guarded language, proves the conspiracy. Wood will argue that the call proves that Chad and Lori both knew the children were buried in Chad’s backyard and that the search would inevitably turn up the bodies. This is why Lori asks if they are seizing “stuff,” and why Chad tells her, he’s not sure if he will be able to answer a later telephone call. As careful as they are trying to be, this is still the “Oh my God, they’ve caught us, what are we going to do?!” conversation. With Alex dead, they are the only two people who knew the bodies were there. The DA is trying to prove they knew.
There has also been a lot of talk on social media about John Prior’s performance in the hearing. In every case, the DA tries to build a monolithic case, piece by piece, like building a brick wall. The job of the defense is to poke lots of small holes in the case until it looks more like a flimsy bit of swiss cheese. It’s rare when a defense lawyer can build their own wall, by presenting an alibi, or a plausible alternate theory of the case. In most cases, the defense is simply trying to poke enough small holes in the prosecutor’s wall that when the judge or jury takes all the hole together, it’s enough to give them a reasonable doubt. Prior was doing that in the preliminary hearing. He was picking at small snags in the evidence because that’s his job. Was the excavation ten feet square or twenty feet? Was there a raccoon? Or maybe you didn’t look hard enough for it, because finding it would bolster Chad’s narrative. Yes, sometimes, it made him look like a jerk, and his mannerisms and body language didn’t help. Yes, he was aggressive and argumentative and dismissive at times, even with Judge Eddins. Sometimes lawyers believe that their clients expect that kind of behavior.
Can Mental Health be a trial strategy?
How Does the Defense Get Mental Health into trial in Idaho?
August 14, 2020
Hello Friends: Thanks to you, we topped 1000 subscribers this week, and a few of you took the time to give me some great feedback and questions. Chris’s question warrants a full post. Thanks, Chris!
Hi Lori
Thanks for your recent email. After reading your comments (pertinent and thorough as usual) I am left wondering that if Chad and Lori believe themselves to be these exceptional beingss in relation to LDS (or an even stranger form of it) how is this not delusional? What view would the Court take as to the mental status of people who believe that they are beyond human and also (possibly/allegedly) commit acts of conspiracy to conceal the remains of children and (potentially) serial murder/conspiracy to murder. Also would these beliefs be taken up by the prosecution as the main motive for the current and subsequent charges, or would the issues of (possible) benefit and insurance fraud be considered of equal weight. The other issue is that of the need to get people ‘out of the way’ on behalf of the alleged perpetrators, so that they can be together and unencumbered, in order to carry out their religious missions. I suppose I’m asking, at what point to the parameters of secular reason kick in to a crime that seems to arise from a (admittedly customised) religious cult-like construction of reality? Especially within the context of the LDS religion (and it’s vagaries) being mainstream(thereby influencing the views of the jurors/judge/media/witnesses etc) Would the case, indeed, need to be moved to a less LDS setting in order to get a fair trial for the victims and not just the defendants? I would love your opinion on this?
Many thanks. Chris.
The place where psychology and the law converge is a most interesting spot. It’s the reason that
so many people, myself included, are interested in true crime. The question is: when can aberrant criminal behavior be excused by mental illness or mental defect?
I’ve been reading and listening to a lot on this subject, and I found Dr. John Mathias’ podcast, Hidden, especially informative.
There have been many attempts over the years to define when a person should not be responsible for their criminal actions because of a mental disease or defect. While many may see this as counting angels on the head of a pin, these legal nuances are what keep lawyers and judges up at night. Here are the four most common definitions.
M’Naghten. The M’Naghten test is the oldest and most narrow definition. It arose from a case in England in 1843. To be found legally insane under the M’Naghten rule, the defendant must not know either the nature and quality of the criminal act or that the act was wrong. Some jurisdictions add legally wrong or legally and morally wrong. Either the defendant must be so mentally diseased or defective that they don’t know their behavior is wrong, or that they don’t understand the true nature of their action. For example, she doesn’t understand that it’s wrong to kill your husband, OR she was so delusional she thought her husband was a bear.
Irresistible Impulse. This defense adds a layer. In this one, the defendant may also argue that even if they knew the conduct was wrong, they were unable to control their behavior or conform their conduct to the law. This defense is much broader than the M’Naghten rule and has fallen out of favor over the years.
Substantial Capacity. The standard, which was adopted in the Model Penal Code in 1962, says, “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law” (Model Penal Code § 4.01(1)). The standard fell out of favor when lawyers successfully argued that John Hinckley was insane when he attempted to assassinate President Ronald Reagan in 1982.
Durham Defense. New Hampshire is the only state that uses this standard. In this rule, the accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. It adds a layer that the mental defect must be the cause of the criminal act.
Idaho treats insanity radically different from most states. Idaho does not recognize any of the mental defect defenses, so the above definitions don’t apply as in other states. Contrary to what some commentators have said, it doesn’t mean the issue of mental disease or defect is entirely off the table.
As I outlined in my earlier newsletter, titled Let’s Talk Law, Every crime begins with a required mental state. In general terms, a crime is committed intentionally, knowingly, recklessly, or negligently. If you intentionally murder someone, that suggests some level of planning. Knowingly murdering someone suggests that you know you are killing someone but may not have planned it until the split second before it occurred. If you recklessly kill someone, you commit an act that you knew had the possibility of causing someone’s death, while negligence suggests that you didn’t consider a risk. These are general definitions because jurisdictions may slightly. What doesn’t change is that every crime starts with a mental state. Instead of mental illness being a defense, in Idaho, a defendant must prove that their mental disease or defect prevented them from forming the requisite mental state.
More angels on pins, you say? Maybe a practical explanation will help. In the Chad and Lori case, the charges are that they “did willfully conceal and/or did aid and abet another to willfully conceal human remains, knowing that the said human remains were about to be produced, used and /or discovered as evidence in a felony proceeding inquiry and/or investigation authorized by law, with the intent to prevent it from being so produced, used and/or discovered.” Under IC 18-101, “The word “willfully,” when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or make the omission referred to. It does not require any intent to violate the law, or to injure another, or to acquire any advantage.” Idaho law uses the word “willfully,” where many states use the word “intentionally.” There are a lot of willfullys and intents in Chad and Lori’s charge. To raise the issue of mental disease or defect, Chad and Lori must be able to prove they were unable to form a willful or intentional mental state. That’s going to be a tough pull for John Prior and Mark Means because juries are instructed that they may draw reasonable inferences from the evidence they are presented, including inferences about a person’s intent or willfulness. Let’s look at what Chad, Lori, and Alex did: on both occasions, they waited until Chad’s wife, Tammy, left for work. Tylee’s remains were dismembered and burned, in an obvious effort to destroy or conceal them. Later, JJ’s remains were wrapped in plastic and duct tape and buried under a layer of wood. These are not the actions of people who didn’t have the mental capacity to act willfully; they are the actions of people acting in a willful planful, and intentional way. It doesn’t mean they weren’t convinced God was telling them to do it, or that they didn’t believe they were supreme beings that would suffer no consequences; those simply aren’t defenses that are allowed under Idaho law.
In a state where mental disease or defect is a defense, Chad or Lori could argue that their religious delusions led them to believe they were saving the children by killing them. That same defense didn’t save Andrea Yates from a conviction after she drowned her five children because she believed Satan was in her, and that she had to save the children from damnation while they were still innocent enough to get into heaven. Unlike Chad or Lori, Yates had a lengthy history of hospitalizations for mental illness, including complete breaks with reality.
Chris’s question about motive is a good one. Prosecutors don’t have to prove motive. That said, we humans are meaning-seeking creatures, and understanding someone’s motive helps us make sense of their actions. Juries want to know why, so Prosecutors use theories, to explain how and why the crime might have happened, The theory of the case is the framework a prosecutor arranges the evidence around, kind of like using the picture on the jigsaw puzzle box as a guide. People are complex and can often have more than one motive for committing a crime. I expect Rob Wood to build his framework on the theory that Chad and Lori believed they were supreme beings, so all their actions were justified. Then he will show how each of their decisions sprung from that. They believed God had ordained that they be together, so they felt justified in doing whatever was needed to be together. They believed their work was so important it justified any means possible to get money to support it. They believed their work was so important that it justified killing anyone who got in their way. You can see how one unifying theory can work to answer the question of motive.
Idaho has the second-highest population of members of the Church of Jesus Christ of Latter-day Saints. Utah is number one, with 68%, Idaho has 26%, followed by Wyoming with 12%, Nevada, and Arizona with 6%. Put another way, 74% of Idaho’s population are not church members, but 97% of people living in Rexburg, Idaho, are church members. That demographic could cut both ways for Chad and Lori. Some think a jury of mostly mainstream church members would be sensitive to Chad and Lori’s beliefs. Others expect mainstream church members to be outraged. I count myself in the second camp. As I’ve said before, I am not a member of the church. However, I live in a community with a large church population. In my own experience, I find my Church of Jesus Christ of Latter-day Saints neighbors to be kind, pleasant, and above all, law-abiding. I expect members of the church to be outraged by the suggestion that their beliefs could justify the crimes Chad and Lori committed. The fact that the community is made up mostly of people who are members of the church would not be a legal basis for a change of venue. A change of venue would be justified if the defense can show there has been so much pretrial publicity the majority of people have already formed an opinion about guilt or innocence.
I hope I answered the question, Chris. Please keep them coming.
She Waived!
Why Did Lori Vallow Daybell Waive Her Right to a Preliminary Hearing?
August 6, 2020
Here is a quick update on today's developments.
Lori Vallow Daybell made a brief appearance in court today and waived her right to a preliminary hearing. Lori’s waiver was filed with the court, but Judge Eddins, leaving nothing to chance, also had Lori appear in court and confirm on the court’s record that she knew she had a right to a preliminary hearing and was waiving it.
After two days of Chad Daybell’s preliminary hearing, many wondered why Lori would make this decision. It appears, it was something she had discussed with Mark Means in advance, because the signed waiver was dated July 17, 2020.
Why would she waive her right to a preliminary hearing? Here are a few of the reasons:
Attorneys are expensive. By waiving the preliminary hearing for what appeared to be an inevitable outcome, she saved a substantial cost.
Every time a witness testifies, their story becomes more solidified. The more often a person’s testimony is recorded under oath, the harder it gets to find holes in their story. It’s better to have a witness that has not already been rigorously cross-examined. Witnesses also become more practiced with each appearance. That means that subtle changes in their body language or demeanor are lost.
The details of the conditions of the children’s bodies are horrifying. The fewer times the public hears that information, the more likely it is that a fair jury pool can be found. Likewise, her attorney probably didn’t want the public scrutiny of her reactions that would have happened in a preliminary hearing.
Chad Daybell was on the prosecutions’ witness list. That means he would have had to appear and take the stand. There is an exception to the Idaho Rules of Evidence that says spouses can’t invoke the spousal privilege in a case involving the child(ren) of either spouse. The only alternative would have been for Chad to assert his Fifth Amendment right against self-incrimination, and that would have made both of them look guilty.
The Second Day of Chad Daybell's Preliminary Hearing
Judge Finds Probable Cause and Binds Chad Daybell Over to District Court
August 4, 2020
Judge Eddins found that there was probable cause to bind Chad Daybell over to the District Court for a trial on all four charges against him.
Here are some of the highlights from today’s hearing.
Melanie Gibb seemed unflappable in the face of John Prior’s sometimes bitter cross-examination. Melanie was smart, or well advised, in how she handled her earlier lie. Melanie initially told law enforcement that JJ had been with her, but that she had returned the boy to Lori. Melanie later admitted that the statement wasn’t true. JJ had never been in her custody. She admitted her first inclination was to protect her friend, but she was confused, and her gut told her the lie was wrong. While it may reflect Melanie’s naivete, her taped conversation shows, she did reach the point where she drew the line and did the right thing. Many people have been critical of Melanie Gibb on social media. They seem to feel she could have done more to protect the children. The finder of fact (the judge or jury) will assess her credibility, and it’s important to look at the facts and the timeline when we judge her actions. Melanie knew that Lori said Charles was a zombie and that Charles was later was shot by Alex Cox in July 2019. But Melanie was told that Alex acted in self-defense and knew that no charges were brought against Alex for Charles’s death before Alex died in December 2019. Melanie was also present with Lori, earlier in the year when Charles attempted to have Lori committed. Mental health professionals said there was no basis to commit Lori.
True, Melanie heard Lori call each of the children zombies, but there was no testimony that being called a zombie meant the children had to be killed. The last day Tylee was seen was September 8, 2019. Melanie admitted that she didn’t have a relationship with Tylee. While she was skeptical of Lori’s claim that Tylee was going to college, she let it slide. JJ was last seen on September 23, 2019. Melanie and David Warwick were probably the last people, other than Lori, Chad, or Alex, to see JJ. When Deputy Hermosillo contacted Lori, and later Melanie to check on JJ’s welfare, JJ had already been dead for more than two months. Therefore, Melanie’s delay, from November 27, 2019, to December 7 or 8, 2019, had no impact either way.
David Warwick didn’t add a great deal to the story but did confirm that he had been in Lori’s home, seen Chad at Lori’s home while Chad was still married to Tammy, and had seen Alex carry JJ in and put him to bed.
The remaining witnesses, except for Special Agent Steve Daniels, were there to authenticate the cell phone information and to testify about the chain of custody of physical evidence.
Special Agent Daniels was important to the state’s case. He was the head of the FBI’s Evidence Recovery Team and was responsible for the recovery of the children’s remains. His testimony was a bookend of the earlier testimony from Det. Hermosillo. Ideally, the prosecutor wants to begin and end with compelling testimony. It’s not always possible because witnesses are not always available in the exact order you want them. Still, Rob Wood was able to present the bodies and their condition on each day, keeping the details fresher in the judge’s mind. The evidence presented was, by no means, all the evidence the state has.
A procedural note about refreshing recollection vs. admitting evidence. You saw agent Benjamin Dean, the FBI intelligence analyst, refer several times to a report. Dean was dealing with voluminous records of electronic transmissions from telephones. He referred to his report several times to “refresh his recollection.” What he did is allowed under the rules of evidence. Dean’s report was not offered as evidence; he only used it to refresh his memory about specific dates or numbers. Since it wasn’t introduced into evidence, the judge will not see the report and will have to rely on his own memory and understanding of what he heard.
Chad’s attorney didn’t present any evidence, and that is typical.
The judge took the time to review his notes and study the law before giving his decision. Remember, the judge only has to find that it is more likely than not that a felony offense occurred and that it’s more probable than not that the defendant committed the crime. In other words, it’s a low bar.
What the heck is the District Court division, and how does it differ from the Magistrate Division of the court? Most states used to differentiate between a lower level trial court and one that handled more serious matters. Many states have consolidated and declared all judges to be at the same level. Idaho still has Magistrates and District court judges. Magistrates handle small claims, juvenile corrections proceedings, civil matters with damages of less than $10,000, traffic, probate, child protective proceedings, misdemeanors, arrest warrants, searches and seizures, domestic relations, and preliminary hearings on felony matters. It makes you wonder what the District Court judges do. Well, they hear felony criminal matters, civil matters of personal injury, contract disputes and property disputes with damages of more than $10,000, and appeals from magistrates, and appeals from administrative hearings.
Next week, Lori Vallow Daybell will go through a similar preliminary hearing on the same charges.
Day One of Chad Daybell's Preliminary Hearing
Sometimes Even Bad Guys Smile In Court
It’s been a minute since I’ve spent the day with hard, heartbreaking evidence. I am sure many people who watched the hearing were experiencing this sort of thing for the first time. Please understand that trauma is cumulative, and you can’t unhear what you’ve heard. Give yourself some grace tonight. Breathe, pray, take a walk, do some yoga, hug someone, have a glass of wine, watch something silly, and give your heart and your mind space to recover. It’s a marathon, not a sprint.
The first day of this two-day preliminary hearing is in the books, and there were some interesting revelations, but before we dive into the substance, I want to talk about Chad and his demeanor. I saw a lot of comments on social media objecting to him, smiling at different times. Let me say clearly: even bad guys sometimes smile in court. It’s natural. People smile when they’re nervous, and attorneys joke to put their clients at ease. It’s unfair and unrealistic to expect that Chad will never smile in court, no matter what he may have done. For the most part, Chad appeared pretty somber. When the prosecutor brought out the first large photo, Chad averted his eyes and swallowed hard. Maybe he was afraid Rob Wood was going to start with gruesome photos.
The first witness, Detective Hermosillo of the Rexburg Police Department, had a lot of valuable information. Wood was smart to put him on first to give an overview of the case. Even though it’s only a preliminary hearing, and Judge Eddins is an experienced finder of fact, it’s still smart to start with the 30,000-foot level and work down.
Detective Hermosillo outlined some of the evidence. He provided basics, like birth certificates, adoption certificates, and the like. He settled one question; many people wondered if Chad and Lori were legally married in Hawaii. Det. Hermosillo produced and authenticated their marriage certificate from Kaui, Hawaii, on November 5, 2019. Hermosillo testified that he was present for the initial welfare check for JJ on November 26, 2019. He reported that he talked to Chad Daybell and Alex Cox first. Alex said Lori was not home. Chad said he didn’t know Lori well and didn’t have her phone number. Hermosillo thought that was odd because he already knew Chad and Lori were married. Chad finally admitted that he had Lori’s number and gave it to the police. At that time, police were not aware that Lori’s daughter Tylee had not also been seen in weeks. They obtained a search warrant the following day. When they returned, the house appeared occupied; there was food in the refrigerator and the pantry, but all of the clothing was gone. They found a contract for a storage unit in the master bedroom and obtained a warrant to search it.
They found things belonging to the children, such as bicycles and winter clothing in the unit. Hermosillo then established the last day each of the children was seen alive. He reported that he had helped serve the child protection order on Lori in Hawaii, and later been present when the search warrants were executed in Hawaii on their residence and their car. He said they located Lori Vallow through tips and from her cell phone data.
Wood then moved in time to June 9, 2020, when the search warrant was served for Chad Daybell’s back yard. That testimony was wrenching. Hermosillo described how the FBI Evidence Recovery Team (ERT) searched with cadaver dogs, marked off grids, and then began excavating an area about four feet by two feet where the grass was shorter near the pond. The team discovered three flat white rocks; when the rocks were removed, they discovered thin wood panels. Under the panels was more dirt, and he could smell the odor of a decomposing body. There was a discussion about how Hermosillo recognized the smell from his experience at other crime scenes. Under the panels, the team unearthed a black plastic bag. When they sliced open the bag, they found a white bag covering what appeared to be a head. When they sliced that bag open, they saw brown human hair.
Hermosillo testified to the chain of custody as the remains were taken to Ada County for autopsy. The Court TV camera focused on JJ’s grandparents, Kay and Larry Woodcock. Larry was openly tearful, as Kay tried to comfort him. Hermosillo went on to describe the autopsy. He described how the black bag was wrapped in duct tape. The medical examiner opened the black bag, and then then the white kitchen trash bag with a red drawstring that covered the head. Hermosillo said JJ Vallow was clad in red pajamas and black socks. I wonder if we will hear David Warwick testify tomorrow that when he last saw JJ sleeping on Alex Cox’s shoulder, the child was wearing red pajamas. JJ’s body was wrapped in layer after layer of duct tape. The head was wrapped from eyebrow to chin, and when the tape was cut away, there was a piece of duct tape across the JJ’s mouth, “from jawline to jawline.’ His hands and arms were wrapped in more layers of duct tape, and when exposed, his wrists were bound. JJ’s ankles had also been bound. Hermosillo identified the child as JJ Vallow, from all the pictures and videos he had seen.
Det. Hermosillo testified that he was also present when the FBI’s ERT excavated an area around a fire pit that he identified as a pet cemetery. A mass he described as burned human flesh and bone melted in a green plastic bucket was discovered. Those remains were also taken to Ada County for autopsy. Hermosillo didn’t testify further about those remains, so expect there to be extensive testimony about them tomorrow. We know that those remains were identified as Tylee. One of the charges is for the destruction of evidence. Expect an in-depth and difficult discussion of the condition of Tylee’s remains.
The next witness was Detective Stubbs. He introduced the Google location data, how he compiled the data and the aerial photos with “pins” of Alex’s locations. There are three witnesses from the FBI on the witness list. They may not all testify, but I am sure they will have a lot to add about how they tracked all the players and their telephones. Perhaps we will hear more about Lori and Chad’s telephone pings around the time both children died.
Finally, we heard from Melanie Gibb. We had already heard much of her story in the interviews she did with Nate Eaton at East Idaho News and Dateline. What we had not heard was the taped telephone call she had with Chad and Lori. Both Chad and Lori claimed that people in their families are working against them. Chad claimed his sister-in-law was spreading “conspiracy theories” about Tammy’s death. Chad goes on to say that Tammy was “getting weaker and sick.” Chad claims he “begged her to go to the doctor, her heart was failing, she was physically falling apart, and she hates doctors, and she just passed away.” His testimony contradicts earlier reports that Tammy had been training to run in a road race and had been healthy and happy when she visited her family a few days before her death.
It’s no accident that Rob Wood put the testimony of the condition of JJ Vallow’s body on early. He wanted Judge Eddins to know that while JJ’s body was buried in Chad’s back yard, his little mouth taped shut and his arms and legs bound, his mother, Lori Vallow, was attesting to Melanie Gibb that JJ is “safe and happy,” promising “I know exactly where he is, he’s perfectly fine and happy,” and “I’ve done nothing wrong…” It was a chilling way to end the first day.
Now let’s talk about Chad’s attorney, John Prior. There are a lot of people on social media that want to hate both him and Lori’s attorney, Mark Means. These attorneys have a tough job. They are defending people who may have committed some of the most heinous crimes for the basest of reasons. After all, Melanie Gibb said the Lori, “Honey, you got a lot of natural desires, we all know that.”
Defense attorneys have a limited role in preliminary hearings, but this is the first opportunity Chad has had to see his attorney in court. Prior pushed back at times, mostly to demonstrate to his client that he was fighting for him. John Prior is an experienced criminal attorney with a good command of the rules of evidence, which is a critical skill in criminal trials. His objections were often more shotgun than laser-guided, and the judge grew a bit frustrated with Prior not being specific in his objections. “Judge, can I get some more foundation on that?” isn’t the way an attorney objects, even in a rural county. Prior was right, though, Rob Wood was trying shortcuts sometimes, and not being specific enough.
It’s hard to say how Mark Means will perform in the same arena. Remember, the ethics rules don’t say you have to have experience in everything, only that you have to be smart, and make a reasonable effort to prepare yourself before trial. It may be a steep learning curve for Means, but it isn’t forbidden under the Idaho Rules of Professional Conduct.
Tomorrow, we can expect the FBI agents, the medical examiner, and David Warwick for sure. Drop me an email if you have questions or comments.
Are Chad and Lori Really Mormons
And Why Does It Matter? Part Three
Did Chad and Lori's beliefs give them the motive for murder?
July 31, 2020
Did you know that the Church of Jesus Christ of Latter-day Saints has a preference for how the Church is referred to in print? Did you know they have a published style guide? I didn’t, and my ignorance was evident to some readers! Thanks to Janna N., now I know. She told me the improper references were like fingernails on a blackboard to Church members. I’m sorry; I know that feeling because I get it every time I watch a courtroom drama. One of the things I loved about my years has a criminal attorney was the chance I had to learn something new every day. I’m still learning and growing as I write the newsletter and research the book. I’m committed to accuracy, fairness, and respect as I tell the story. I appreciate it when any of you let me know where I need improvement; I’m counting on you to let me know when there are ways I can do better.
Why, in a newsletter focusing on the legal issues of the case, are we talking about how Chad and Lori’s beliefs differ from the doctrine of the Church of Jesus Christ of Latter-day Saints? Because it goes to motive. Special Prosecutor Rob Wood does not have to prove motive because proving motive is never a legal requirement. That said, we humans are meaning-seeking creatures, and the why of a case is important to a jury if they are to make sense of the evidence Rob Wood presents to them.
Let’s talk about the Seven Missions Chad wanted to accomplish with Lori.
The seven things are:
Translate ancient records.
Write a book about the translation process.
Identify locations in northeast Arizona for white camps
Presidency of Church of the Firstborn
Help establish the food distribution as the tribulations start and delegate.
Ordain individuals to translation as the camps begin
Provide supplies to righteous members of families
Translate ancient records. I mentioned in part two of this series, the possible interpretation of this entry. The Church of Jesus Christ of Latter-day Saints believes that their founder, Joseph Smith, found a collection of golden plates that were inscribed with text in an unknown language. Heavenly Father endowed Smith with the capacity to read and translate about half of those plates. According to the text that Smith translated, the remaining half of the plates were sealed. That sealed text was said to reveal “all things from the foundation of the world unto the end thereof.” The visible text claimed the sealed portion would “not go forth unto the Gentiles until the day that they shall repent of their iniquity, and become clean before the Lord.” The text that Smith translated became The Book of Mormon, which church members believe restores and amplifies the Bible. Church doctrine is based on the Bible, the Book of Mormon, and other writings that comment and interpret those documents, such as Doctrine and Covenants and The Pearl of Great Price. The latter two contain Joseph Smith’s personal modern-day revelations. Chad’s reference to ancient texts must refer to either, Biblical texts, yet undiscovered ancient documents or the sealed portion of the fabled golden plates.
It’s apparent from information coming to light about Chad that he believed he was ordained by God to lead the Church of Jesus Christ of Latter-day Saints. The history of the Church is replete with people who believe they are the “one mighty and strong.” In a letter written to William W. Phelps on November 27, 1832, Joseph Smith transcribed a revelation that he said he received from Jesus Christ:
“[I]t shall come to pass, that I, the Lord God, will send one mighty and strong, holding the sceptre of power in his hand, clothed with light for a covering, whose mouth shall utter words, eternal words; while his bowels shall be a fountain of truth, to set in order the house of God, and to arrange by lot the inheritances of the Saints, whose names are found, and the names of their fathers, and of their children enrolled in the book of the law of God: while that man, who was called of God and appointed, that putteth forth his hand to steady the ark of God, shall fall by the vivid shaft of lightning... These things I say not of myself; therefore, as the Lord speaketh, He will also fulfill.” More about this when we get to item number four.
Write a book about the translation process. Chad writes books. Granted, they’re mediocre books, but that what he does. If Chad believes he is chosen by God to be the translator of heretofore untranslated ancient texts, then indeed, he will need to document the translation process for posterity. Chad’s expectation that he will be translating ancient documents makes sense, if, as has been suggested, he believes he was Joseph Smith and the archangel Moroni in past probations. It does leave one to wonder though, if he has already been such powerful and highly favored saints, isn’t a probation as plain old Chad Daybell a step backward?
Identify locations in northeast Arizona for white camps. What the heck is a ‘white camp?’ Here again, there could be more than one meaning. The book of Mormon says that the Church “shall be a white and a delightsome people.” The Church of Jesus Christ of Latter-day Saints website explains it thus: “During the first two decades of the Church’s existence, a few black men were ordained to the priesthood. One of these men, Elijah Abel, also participated in temple ceremonies in Kirtland, Ohio, and was later baptized as proxy for deceased relatives in Nauvoo, Illinois. There is no reliable evidence that any black men were denied the priesthood during Joseph Smith’s lifetime. In a private Church council three years after Joseph Smith’s death, Brigham Young praised Q. Walker Lewis, a black man who had been ordained to the priesthood, saying, “We have one of the best Elders, an African.”4 In 1852, President Brigham Young publicly announced that men of black African descent could no longer be ordained to the priesthood, though thereafter blacks continued to join the Church through baptism and receiving the gift of the Holy Ghost. Following the death of Brigham Young, subsequent Church presidents restricted blacks from receiving the temple endowment or being married in the temple. Over time, Church leaders and members advanced many theories to explain the priesthood and temple restrictions. None of these explanations is accepted today as the official doctrine of the Church.”
The meaning of Chad’s third entry may also have nothing to do with race. Chad’s friend-turned-foe, Julie Rowe, reported visions of camps of white tents that would provide refuge for the 144,000 chosen people during the time of tribulation. We know that Chad and Lori were active in groups like Preparing a People, that were openly planning for the end of days. These are groups that talk openly about the need to establish camps for the chosen, where they will be safe.
Presidency of Church of the Firstborn. Here is where Chad’s narcissistic delusions really shine. Why bother with the presidency of the world-wide Church of Jesus Christ of Latter-day Saints organization when you can be president of the Church of the Firstborn? Author Ivan J. Barratt, writes, “The Church of the Firstborn is Christ’s heavenly church, and its members are exalted beings who gain an inheritance in the highest heaven of the celestial world and for whom the family continues in eternity. He quotes Joseph Smith: ‘When persons have proved themselves faithful in all things required by the Lord, it is their privilege to receive covenants and obligations that will enable them to be heirs of God as members of the Church of the Firstborn. They are “sealed by the Holy Spirit of promise” and are those “into whose hands the Father has given all things” (D&C 76:51-55). They will be priests and priestesses, kings and queens, receiving the Father’s glory, having the fulness of knowledge, wisdom, power, and dominion (D&C 76:56-62; cf. 107:19). At the second coming of Jesus Christ, the “general assembly of the Church of the Firstborn” will descend with him (Heb. 12:22-23; JST Gen. 9:23; D&C 76:54, 63).’ In other words, members of The Church of the Firstborn will become gods, and Chad Daybell will be the president and leader of all of them.
Help establish the food distribution as the tribulations start and delegate. While it’s certain that Chad and Lori will have many more important things to do when the tribulation starts, Chad wants to be sure the food distribution system is in place for the faithful. The entry also appears to relate to item number seven, Provide supplies to righteous members of families. The entry implies that Chad and Lori will determine who is righteous, which determines which people receive supplies once the tribulation disrupts supply chains.
Ordain individuals to translation as the camps begin. Presumably, Chad, as the president of the Church of the Firstborn, will have the power to ordain people to translation. If you recall from part two of this newsletter, The Church of Jesus Christ of Latter-day Saints teaches that a few extraordinary figures from the Bible were “translated beings,” including the prophets, Enoch, Elijah, Moses, and the apostle John, whom they identify as John the Beloved. Translated beings cannot feel pain and cannot die. According to Chad, they also don’t need food or sleep, can’t reproduce, do not feel sorrow, and heal at an accelerated rate if injured. The Prophet Joseph Smith explained the role of translated beings: “Many have supposed that the doctrine of translation was a doctrine whereby men were taken immediately into the presence of God, and into an eternal fullness, but this is a mistaken idea. Their place of habitation is that of the terrestrial order, and a place prepared for such characters He held in reserve to be ministering angels unto many planets, and who as yet have not entered into so great a fullness as those who are resurrected from the dead” (TPJS, p. 170).” According to Ian Pawlowski’s notes, Chad said a person could be translated after being tested for three days. The tests may be physical, emotional, or spiritual. Chad seems to suggest that he and Lori should translate people so that they can lead the camps while Chad and Lori get about their important work. It seems to be another delegation of duties.
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.
Are Chad Daybell and Lori Vallow Really Mormons?
And Why Does It matter? Part Two of Three
Were Chad and Lori's beliefs motive for murder?
July 23, 2020
I'm taking time, during the lull in activity, to delve deeper into some legal issues. Thanks for all of you that took the time to reach out and let me know that you are finding the newsletter informative and enjoyable. If you have ideas for future topics, please drop me an email at the address below.
Shortly after Lori Vallow was arrested in Hawaii, documents surfaced that drew considerable attention. The first document is the one created by Ian Palowsky. Ian is the second husband of Melani Cox Budreau Palowsky, Lori Vallow’s niece. Lori’s sister, Stacy, was Melani’s mother. Melani is also a follower of Chad Daybell. She was married to Brandon Boudreaux, until, in a move that surprised many, Melani divorced Brandon. After meeting Ian on a dating site and knowing him for a matter of days, Melani married Ian Palowsky. Melani began telling Ian about Chad’s teachings, and Ian started keeping notes on his computer. Portions of those notes are reproduced here.
The document gives us our first glimpse into Lori and Chad’s thought process, and there is so much to unpack.
Probations. In Part 1 of this series, I outlined the LDS history with reincarnation, or as Chad and others call it, “multiple probations.” It isn’t a concept that Chad made up. There is evidence in his own writings that Joseph Smith believed souls needed to be sent to Earth more than once to achieve exaltation and take their place in the celestial kingdom. It was the fourth prophet, Wilford Woodruff, who labeled reincarnation a “doctrine of the devil” in 1869. One of Smith’s wives, Eliza Snow, wrote that Smith taught her and many of his close associates about reincarnation. Snow never wavered in her belief throughout her life. We need a quick review of the LDS doctrine about the levels of heaven to understand Ian’s notes. Mormons believe the highest level of heaven is the celestial kingdom and that within that kingdom, there are a further three levels. According to Ian’s notes, Chad said a person must serve a minimum of nine probations (lives) to be exalted. Exaltation means that you have achieved the top of the three levels in the celestial kingdom. Only those who achieve the highest level will be Heavenly Fathers and Mothers to their own planets and will live in the actual presence of God. These are the 144,000 identified in Revelations and are identified by Joseph Smith as the Church of the Firstborn. Only those who are exalted because they have “kept all the commandments of the Lord” will become part of the Church of the Firstborn. Bruce R. McConkie, author and member of the Twelve Apostles, described it “As The Church of Jesus Christ is God’s earthly church, so The Church of the Firstborn is God’s heavenly church.”
Translations. Chad uses the word “translation in two different ways. First, LDS believe that Joseph Smith found a set of golden tablets buried in the woods of New York. The tablets were inscribed in an unknown language that Smith was given the ability by God to read. Using this God-given ability, Smith translated and transcribed the text into the Book of Mormon. According to Smith, at least half of the plates remained sealed from him. The sealed text was said to reveal “all things from the foundation of the world unto the end thereof.” The visible text claimed the sealed portion would “not go forth unto the Gentiles until the day that they shall repent of their iniquity, and become clean before the Lord.” Chad’s list of seven things he and Lori were to do, included translating ancient documents. The list does not specify which documents, but one can suppose that translated beings would be able to translate the sealed portions of the golden tablets.
The word “translated” also has a different meaning in LDS doctrine; Mormons teach that a few extraordinary figures from the Bible were “translated beings,” including the prophets, Enoch, Elijah, Moses, and the apostle John, whom they identify as John the Beloved. Translated beings cannot feel pain and cannot die. According to Chad, they also don’t need food or sleep, can’t reproduce, do not feel sorrow, and heal at an accelerated rate if injured. The Prophet Joseph Smith explained the role of translated beings: “Many have supposed that the doctrine of translation was a doctrine whereby men were taken immediately into the presence of God, and into an eternal fullness, but this is a mistaken idea. Their place of habitation is that of the terrestrial order, and a place prepared for such characters He held in reserve to be ministering angels unto many planets, and who as yet have not entered into so great a fullness as those who are resurrected from the dead” (TPJS, p. 170).” According to Ian’s notes, a person can be translated after being tested for three days. The tests may be physical, emotional, or spiritual.
Light and Dark. Chad Daybell believes that a near-death experience he had as a young man gave him supernatural abilities to communicate with spirits “beyond the veil.” Those beyond the veil are preexisting spirits and those who have already died and await the resurrection. Chad believes that he receives information from the beings beyond the veil. He believes they give him information about people’s past lives, prophesies of future events, and give him the ability to identify dark spirits. Chad says there are 50 dark translated beings. They can force a person’s spirit from their body and take it over. Once severed, the only way to rescue the untethered spirit is to kill the body. Chad provided Lori with a list of her family members and their relative light and dark readings. He noted on the list if they had lived past lives. Chad says that Charles Vallow, Lori’s fourth husband, who also lived in 1700s London, was light, while Joseph Ryan, Lori’s third husband was dark, and “is now sealed away.” Tylee Ryan was a dark being, but JJ Vallow was light, although his assessment must have changed since just before he disappeared, Lori told her friend, Melanie Gibb, that JJ was a zombie. Melanie Gibb also overheard Lori calling Tylee a zombie. All of Lori’s birth family are light; Lori’s son, Colby Ryan, is light, but his wife is dark. Lori’s niece, Melani Boudreaux Pawlowski, was light, but her former husband, Brandon Boudreax, was dark. It’s been reported that Chad also said his wife, Tammy Daybell, had gone dark just before her death. The mark of darkness is associated with the Genesis figure of Cain. The Book of Mormon says of Cain, “He entered into an unholy covenant with Satan by which he became known as Master Mahan, or “master of this great secret,” and by which he could ‘murder and get gain’”
Sealings. Sealing is a ritual performed by an LDS Temple Official; husbands, wives, and children are sealed to one another. Mormons believe sealed families remain together in heaven if the patriarch is exalted, he becomes the Heavenly Father of his own celestial kingdom, surrounded by his Heavenly Wives and Heavenly Children. Mormon families are sealed to one another “for time and eternity.” A woman who is sealed to a husband who dies may remarry, but their second marriage is only for time (during their time on Earth). When the woman dies, she is taken into the celestial kingdom of the husband she is sealed to for eternity. LDS members believe that everyone older than age eight must be baptized to be admitted to heaven and remain together in eternity. Those family members who resisted LDS baptisms in life may be baptized after death. The rite seals the dead family member to the rest of the family. Mainstream LDS leaders are quick to point out that baptism for the dead is only an invitation to join, that the dead person’s spirit can decline. The church does not recognize divorce in time and eternity. Once a woman is sealed to a man, she cannot be sealed to another. A man, however, can be sealed to more than one woman in celestial polygamous marriage. Chad and Lori say they were sealed to one another in the Temple in 2018. Chad says even though Lori was married to Charles, and Chad was married to Tammy, Chad and Lori had been married to each other in a past life, and so had already been sealed for time and eternity. Chad, of course, could have as many wives has he wanted in heaven, so being sealed to both Tammy and Lori was perfectly fine.
What? No Live-Stream of the Preliminary Hearings?
Why Did DA Rob Wood Ask That The Preliminary Hearings not be Streamed?
July 21, 2020
HAPPY END OF THE WORLD EVE! On the outside chance that Chad and Lori are right, it's been great getting to know all of you.
Since they're probably not right, and the world isn't ending tomorrow, you may want to take advantage of the new archive function on our website http://thelorivallowstory.com
But you want to see everything? Me too! But Prosecutor Rob Wood, who has been appointed special prosecutor on the Vallow/Daybell cases, asked that Lori and Chad’s preliminary hearings on the Fremont County charges not be live-streamed. He asked because he said it could make finding an impartial jury difficult. He’s right, and while it makes those of us who are invested in the case bristle, it’s actually a good move. Wood wants to assure that he does everything to protect the process so that neither Chad nor Lori have the basis for appeal. Wood has an obligation not to put on evidence aimed at inflaming or offending a jury’s sensibilities. Pretrial publicity is going to continue to be a problem in this case. Wood is not asking to close the hearing or limit public access; he is only asking that the hearing not be live-streamed. Most hearings are not live-streamed. The reason the Vallow/Daybell hearings have been broadcast is that COVID-19 restrictions kept court spectators, including the media, out of the courtroom.
Some things to think about:
This is a preliminary hearing on the charges of conspiring to conceal or destroy evidence.
A preliminary hearing is just the next step in the charging process. A defendant is charged with a document called a DA’s Information. If the potential charge is a felony, there is a further step in the charging process. That step is either a grand jury or a preliminary hearing. Jurisdictions vary on whether their process favors preliminary hearings or grand juries. Either way, the purpose of the hearing is to determine first, if an offense has been committed, and second, whether there is probable cause to believe the defendant committed the offense. The term probable cause has a specific legal definition: The existence of circumstances that would lead a reasonable and prudent person to believe in the guilt of a person. It’s a much lower standard than proof beyond a reasonable doubt. If beyond a reasonable doubt is 99%, probable cause is 51%. The only question is whether the judge believes it’s more likely than not that this defendant committed this crime.
Idaho Criminal Rule 5.1. Preliminary Hearing; Probable Cause Finding; Discharge or Commitment of Defendant; Procedure
(a) Preliminary Hearing. Unless indicted by a grand jury, a defendant charged in a complaint with any felony is entitled to a preliminary hearing. If the defendant waives the preliminary hearing, the magistrate must immediately file a written order in the district court requiring the defendant to answer. If a waiver of preliminary hearing form is used, the waiver form must be the Supreme Court waiver of preliminary hearing form found in Appendix A of these rules. If the defendant does not waive the preliminary hearing, the magistrate must schedule a preliminary hearing within a reasonable time, but in any event not later than 14 days following the defendant’s initial appearance if the defendant is in custody and no later than 21 days after the initial appearance if the defendant is not in custody. Time limits in this subsection may be extended with the consent of the defendant and on showing of good cause, taking into account the public interest and prompt disposition of criminal cases. In the absence of consent by the defendant, time limits may be extended only on a showing that extraordinary circumstances exist. Extraordinary circumstances include disqualification of the magistrate by the defendant pursuant to Rule 25.
(b) Probable Cause Finding. If the magistrate finds that a public offense has been committed and that there is probable or sufficient cause to believe that the defendant committed the offense, the magistrate must immediately require the defendant to answer in the district court. The finding of probable cause must be based on substantial evidence on every material element of the offense charged. Hearsay in the form of testimony or affidavits, including written certifications or declarations under penalty of perjury, may be admitted to show the following:
(1) the existence or nonexistence of business or medical facts and records,
(2) judgments and convictions of courts,
(3) ownership of real or personal property, and
(4) reports of scientific examinations of evidence by state or federal agencies or officials or by state-certified laboratories, provided the magistrate determines the source of said evidence to be credible. Nothing in this rule prevents the admission of evidence under any recognized exception to the hearsay rule of evidence. The defendant is entitled to cross-examine witnesses produced against the defendant at the hearing and may introduce evidence in the defendant’s own behalf. Motions to suppress must be made in a trial court as provided in Rule 12. However, if at the preliminary hearing the evidence shows facts which would ultimately require the suppression of evidence sought to be used against the defendant, the evidence must be excluded and must not be considered by the magistrate in determining probable cause. A record of the proceedings must be made by stenographic means or recording devices.
Rob Wood will present only the information necessary to prove there is probable cause that Lori and Chad conspired to hide the evidence of a crime. While information about the children’s deaths will come out, Wood will do his best not to tip his hand by putting on any evidence relating to how the children died. Wood will describe and show photos of the children’s burial, the condition of their bodies, and the autopsy reports. That is information that if live-streamed, that will surely inflame people’s feelings about the case, including people who could be jurors.
It’s possible that after the preliminary hearing, Chad or Lori may see the handwriting on the wall and decide to break their silence. Until now, all the information they have received has been filtered through their lawyers. The preliminary hearing is their first opportunity to see the DA in action, to see some of the evidence against them, and to experience a taste of what a trial would involve. Some of the evidence will be very hard to view. A good defense attorney will help their client by reviewing the evidence with them in advance so that the first time the client views the evidence is not in court. Evidence in murder cases is not for the faint of heart, and can’t be unseen. We all think we’re ready until someone puts the photos in front of us. As someone who has seen a lot of grisly photos, I don’t recommend it for everyone. Trauma is cumulative, and it’s vital to know your limits. And, as calculating as it might sound, Wood also doesn’t want to blunt the impact of the evidence by making it public before the trial. Don’t forget, the best trials are tactical and highly choreographed.
Martinez vs. Prior
Why was one disbarred and not the other?
What Would Spiderman Do?
July 19, 2020
Errata: Some pesky errors crept into the past couple of posts. Many thanks to eagle-eyed readers who caught them. I love it when someone catches a mistake because it means you’re reading! There are three corrections. In the article What’s the Deal on the Sealed Documents? I incorrectly said that Mark Means was asked about his past representation of Chad at Chad’s arraignment. Of course, it was at Lori’s arraignment, where Judge Eddins asked about the conflict. Second, I incorrectly identified the county where Chad is being held as “Jefferson” County in that post. Chad is being held in Fremont County. Third, in the first installment of How Did Chad and Lori’s Beliefs Create Motive? I incorrectly identified the end of polygamy in 1952. The correct year was 1852. Thanks for keeping me straight!
While we wait for more news in the Lori Vallow case, care to take a deep dive into the weeds of attorney ethics with me? It’s about to get a little esoteric in here, so if this isn’t your cup of tea, feel free to skip it.
As many people know, Juan Martinez, the Mesa, AZ prosecutor of the Jodi Arias case was disbarred late last week. People are curious about why he was disbarred, and Chad’s lawyer, John Prior, is still practicing. For those who want to delve deeper into the ethics rules, I’ve included the text of some of the rules as well as the commentary used to interpret them.
The rules of professional responsibility vary slightly from state to state. Here is the relevant passage about misconduct from the Idaho Rules of Professional Conduct.
*RULE 8.4 MISCONDUCT It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. *(Rule 8.4 amended 3-17-05) Commentary [1] Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer’s behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client of action the client is lawfully entitled to take. [2] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. [3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule. [4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law. [5] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.
The rules in Arizona are nearly identical. States also have special rules for prosecutors. The rules are necessary because prosecuting attorneys have tremendous power. They have broad discretion in who they prosecute and when. The Arizona rule that applies to Martinez is this:
ER 3.8. Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of any ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under ER 3.6 or this Rule.
(g) When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to the court in which the defendant was convicted and to the corresponding prosecutorial authority, and to defendant’s counsel or, if defendant is not represented, the defendant and the indigent defense appointing authority in the jurisdiction, and
(2) if the judgment of conviction was entered by a court in which the prosecutor exercises prosecutorial authority, make reasonable efforts to inquire into the matter or to refer the matter to the appropriate law enforcement or prosecutorial agency for its investigation into the matter.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall take appropriate steps, including giving notice to the victim, to set aside the conviction.
(i) A prosecutor who concludes in good faith that information is not subject to subsections (g) or (h) of this Rule does not violate those subsections even if this conclusion is later determined to have been erroneous.
COMMENT
[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.
[2] Paragraph (c) does not apply to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of a suspect who has knowingly waived the rights to counsel and silence.
[3] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.
[4] Paragraph (e) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship.
[5] Paragraph (f) supplements ER 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with ER 3.6 (b) or (c).
[6] Paragraph (f) reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case. In addition, paragraph (f) requires a prosecutor to exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements, even when such persons are not under the direct supervision of the prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law enforcement personnel and other relevant individuals.
[7] Evidence is considered new when it was unknown to a trial prosecutor at the time the conviction was entered or, if known to a trial prosecutor, was not disclosed to the defense, either deliberately or inadvertently.
According to Justin Lum of Fox News 10, “In July 2019, FOX 10 reported that Martinez is due to face a disciplinary hearing as a result of an ethics complaint that was filed in March of that year. The complaint accused Martinez of leaking information to a blogger he was having an affair with, communicating with a dismissed juror, and sexually harassing several female coworkers.” Many of you will recognize Justin Lum’s name because of his involvement in the coverage of the Lori Vallow case. Martinez opted to consent to be disbarred rather than face a trial.
The first allegation, that Martinez leaked information, may be the most serious. The judge issued a gag order in that case. Despite the order, Martinez leaked information to Trial Divas blogger Jen Woods, with whom he was having an affair. Gag orders always create frustration on the part of the public in high-visibility cases but are necessary to ensure a fair process. If prosecutors are allowed to circumvent the orders, the defendant’s right to a fair trial is compromised. The comments to the Idaho rules point out, “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” Leaking information is misconduct because it risks the defendant’s ability to have their case heard by an impartial jury. The story is just made more titillating by the sexual relationship between Martinez and the blogger.
The other allegations are that Martinez had contact with a dismissed juror and that he sexually harassed coworkers. Contact with a person who was an active juror on the case would have been grounds for a mistrial and would likely have gotten Martinez in deep trouble immediately. Contact with a juror who was already dismissed from the case is still problematic because it could give Martinez insight into the sitting jury members’ thoughts and personalities. Jury selection has been compared to water witching, and lawyers agonize over their selections from limited information about jurors. Access to inside information about jurors could be a huge and unfair advantage.
Sexual harassment of coworkers is also fundamentally about power, and about creating an atmosphere of hostility in the workplace. Taken together, the allegations prove that Martinez was a man who believed the rules didn’t apply to him. Working from a “totality of the circumstances,” we can conclude that Martinez committed misconduct in situations where he was held to a higher standard because of his position as a prosecutor.
Turning to Chad Daybells’ present attorney, John Prior, there are some similar issues. The ABA Journal reported on Prior’s case, “Faced with the possibility of a maximum 20-year prison sentence if he had been found guilty of felony battery for allegedly forcing himself on a woman in his law office conference room last year, an Idaho attorney has taken a mid-trial plea to misdemeanor battery. John Prior, 50, will now face a maximum of six months in jail and a $1,000 fine when he is sentenced in November in the Canyon County case, according to the Idaho Statesman and KTVB. Prior was indicted by a grand jury for felony battery with intent to commit rape after being accused of attacking a 20-year-old woman who said she came to his Nampa office seeking a job and advice on a child-custody case, the Statesman reports. Before the trial concluded Friday with Prior’s plea, his lawyer, Scott Fouser, told the jury during opening statements that Prior paid the woman, who was in dire straits financially, for sex. She then lied about the incident to her boyfriend, her family, and police, Fouser said. However, the woman testified before Prior took his plea that she refused when he offered her a job and help with the custody case in exchange for having sex with him, the Associated Press reported earlier. The state attorney general’s office prosecuted the case.”
Prior was sentenced to 120 days in jail, which he served. The issue of sexual relationships is treated differently in different states. For example, Oregon is clear about sexual contact between a lawyer and client, including prospective clients. Their rule 1.8(j) reads “A lawyer shall not have sexual relations with a current client of the lawyer unless a consensual sexual relationship existed between them before the client-lawyer relationship commenced; or have sexual relations with a representative of a current client of the lawyer if the sexual relations would, or would likely, damage or prejudice the client in the representation.” Idaho has no such rule.
It’s clear that Prior saw the handwriting on the wall, and pled guilty to a misdemeanor mid-trial to avoid conviction for a felony. In general, state bar associations frown on felonies. It’s also true that bar disciplinary rules focus more on crimes that reflect on a person’s ability to practice law, and that usually means crimes of dishonesty. Over the years, state bar associations have moved away from disciplinary actions based on what in the old days, we called “moral turpitude.” The Idaho commentary says, “ Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.” I have requested Mr. Prior’s disciplinary history from the Idaho State Bar Association to determine if he was sanctioned by the bar for the criminal conviction.
While Prior’s conduct, if true, is reprehensible, Martinez’s conduct has a much greater impact on the fairness and integrity of the criminal justice system. Martinez’s actions were not only personally repugnant but were also an abuse of his power as a prosecutor. To quote Spider-Man, “with great power comes great responsibility.”
Look for Part Two of How Did Chad and Lori's Beliefs Create Motive? on Friday
Have questions or an idea for a future newsletter? Email me at info@thelorivallowstory.com.
Lori Hellis is an author and an experienced criminal attorney. Her book, Children of Darkness and Light, The Lori Vallow Story, is expected out in 2022.
Are Chad Daybell and Lori Vallow Really Mormons?
Were Chad and Lori's Beliefs
the Motive For Murder?
July 18, 2020
Hello Friends and Subscribers: You may have noticed that your weekly email didn't arrive yesterday. Writing yesterday's post on the pretrial conference and bail reduction put me a little behind. Here is the promised post. Thanks again for your support and your interest in my perspective on the case.
Prosecutors in a criminal case do not have to prove motive. That said, humans are meaning-seeking creatures, and juries look for reasons why something happened. Be assured that puzzling out the why of Chad and Lori’s actions is forefront in the mind of prosecuting attorneys. Motive is also essential because prosecutors do have to prove the defendant’s mental state, whether the crime occurred intentionally, knowingly, or recklessly. Chad and Lori’s religious beliefs are central to their mental state and motive.
I am not a member of the LDS Church, and my analysis is strictly that of a layperson. In this post, I attempt to point up differences and similarities so that we can begin to understand where the doctrine warp happened for Chad and his followers. This article is not a comment on the LDS Church, or the truth of its doctrine and the opinions and reasoning are entirely mine. On this site, I use the labels LDS and Mormon interchangeably. When I discuss mainstream church doctrine, I drew the information directly from their website at thechurchofjesuschrist.org.
The Mormon religion is a dynamic faith based on the teachings and prophesies of figures who are living or who have lived in the recent past. At the time the Church was formed, founder Joseph Smith was alive and preaching and teaching; the fundamental doctrines of the Church changed and flexed, based on Joseph Smith’s revelations from God. Because of this, a belief in individual and personal revelation is the very foundation of the Mormon Church. The underpinnings of LDS doctrine change and grow based on the revelations of its current living prophet. Thus, the history of the LDS church is a history of change.
The doctrine of the Church of Jesus Christ of Latter-Day-Saints begins with the Christian Bible, as supplemented by the revelations of Joseph Smith and other prophets. These revelations are preserved in the Book of Mormon, Doctrine and Covenants, and other writings which are considered to be of equal authority to the Bible. The body of LDS written doctrine is added to and revised by new revelations. Revelation and prophesy are subject to interpretation by the individual members. As church leaders move the Church in one direction or another, members can and often do disagree or doubt the truth of a prophet’s revelations. These disagreements created schisms within the Church that lead to breakaway groups.
One of the clearest examples is the Church’s stance on plural marriage. The original teachings of Joseph Smith did not include plural marriage. Whether it was because he received a revelation from God, or as some say because he had a wandering eye, he claimed that it was God’s plan for Mormon men to marry more than one wife. The idea was not popular when Smith first introduced it, and he kept his own plural marriages secret for a long time. Slowly, his inner circle began marrying second and third wives, until, by 1952, the practice became widespread. The LDS plural marriage practice was not popular among non-Mormons. LDS members were persecuted for their beliefs and often chased out of their settlements. When they arrived in Utah, they intended to establish a state, where they could worship as they chose. They flourished for a time, but as territories began becoming states, the polygamous lifestyle came under scrutiny. After bloody battles, persecution, and shunning, the United States Congress ultimately outlawed plural marriage, and in 1890, the fourth Mormon Prophet, Wilford Woodruff, issued his “Manifesto.” The document recognized that plural marriages were forbidden by the government, and advised the faithful to abandon the lifestyle. While plural marriage was only openly and widely practiced for about 40 years, no other teachings of the Church have resounded so loudly. Several large sects split from the LDS church over the issue of plural marriage, and the practice continues to this day in small, hidden communities.
The continued practice of plural marriage in these communities forced them to become insular, secretive, and isolated. Removed from the influence of the mainstream Mormon community, they quickly devolved into cults, complete with charismatic leaders and abominable practices like “blood atonement.” People who have been taught to believe that their leaders receive infallible revelations from God are easily convinced to comply with succeeding revelation, no matter how outrageous. This analysis is not an indictment of the LDS church. Undoubtedly, had the mainstream Church been able to provide a check to some of these prophet’s claims, the excesses associated with the likes of the LeBaron family, and Warren Jeffs would not have happened.
The doomsday prepper movement within the LDS church is another example of a departure from mainstream LDS thought. The Church draws heavily from the Bible’s book of Revelations and believes that the end times may be very near. They teach preparedness and self-sufficiency, encouraging members to set aside enough money and supplies to survive for one year. Like most LDS teachings, it’s sensible. Taken to the extreme, as with the fringe groups associated with the Daybell and Vallow case, it’s terrifying.
If we are to understand how Chad Daybell warped LDS teaching, we have to begin with an understanding of some underlying church doctrine. Central to all Mormon teaching is an understanding of heaven. The Church believes in pre-existence; the idea that souls exist in heaven before being sent to Earth, Souls in heaven are sent to Earth to be tested and perfected. People don’t remember their preexistent time in heaven because God creates a veil in their memory.
There are three levels of heaven in LDS theology, the celestial, the terrestrial, and the telestial. The telestial kingdom is reserved for gentiles - all those who are not Mormon. The Terrestial kingdom is for Mormons, who were tempted by the craftiness of man and have not lived according to the covenants. Only those who have lived according to Mormon doctrine, and have been baptized and married are admitted to the celestial kingdom. There are also three levels in the celestial kingdom, and only those who have become exalted will live on the highest level, in the actual presence of God. Marriage is an essential part of LDS doctrine because the Mormons believe that the exalted who occupy the celestial kingdom are responsible for creating the preexistent souls to be sent to Earth for testing and perfection. This LDS doctrine of celestial kingdoms relies heavily on the Bible passage in John 14:2, “In my Father’s house there are many mansions,” as proof that these kingdoms exist in heaven.
Further, Mormon doctrine asserts that people can become gods. They teach that Heavenly Father (God) was once like us, but was exalted to his place as our God and that each man (women are excluded) can become “exalted” and thereby become Heavenly Fathers over their own kingdoms or worlds. Women are exalted only if they are married to an exalted man. Their role in the celestial kingdom mirrors their role on Earth: to produce children. Women are to “keep sweet, and be obedient and subservient to their husbands. On Earth, women must produce children to provide physical bodies for the preexistent souls in heaven who are waiting to be born. As Heavenly Mothers, their role will be to produce spirit children. The spirits of women who die unmarried must be sealed to men to assure their chance at the celestial kingdom, where men are permitted to have multiple wives.
The topic of reincarnation is a theological hot button in Mormon teaching and scholarship. There are scholars, such as Dr. Robert Beckstead, who believe Joseph Smith’s teachings included a scheme of reincarnation. Since the word “reincarnation” didn’t come into widespread use until long after Joseph Smith died, investigators parse Smith’s works for clues to his beliefs. Scholars argue that if you begin with a preexistent soul and a doctrine where souls may only progress to spiritual perfection while in a body, multiple incarnations make sense. Many people who surrounded Smith, including one of his wives, the scholarly Eliza Snow, believed in reincarnation and said they received instruction on the subject from Smith himself.
When Chad Daybell began teaching his followers about “multiple probations,” he was drawing directly on the writings of Joseph Smith and his contemporaries. Many of Chad Daybell’s teachings come from the early days of the Church. In fact, it was not until 1869 that then prophet Wilford Woodruff declared reincarnation a “doctrine of the devil.” Daybell delves deeply into the teachings of LDS prophet, Joseph Smith; but were the mainstream Church diverged through the revelations of later prophets, Daybell, and other splinter sects remain doggedly faithful to Smith’s original writings and teachings.
While the term “zombie” is foreign to LDS doctrine, the idea is not. Early Mormon scholars discussed and wrote extensively about many of the philosophical questions of the day. They wondered about the nature of man and the nature of consciousness and concluded that man was made of three parts: a soul, a spirit, and a body. The modern Church explains it this way: “In scripture, the term soul is used as a synonym for spirit to describe a person in four different phases of his or her eternal existence. Soul is used to describe a person in premortal life—before birth (see Abraham 3:23). During earth life, the soul is joined with a physical body (see Abraham 5:7). At death, the soul leaves the body and goes to the spirit world to await resurrection (see Alma 40:11–14). In the Resurrection, the body and soul are inseparably connected, which is called “the redemption of the soul” (see Alma 40:23; Doctrine and Covenants 88:15–16).”
Early scholars believed the body and soul could be severed. A body could be corrupted, making it unsuitable to be resurrected, and the soul could be subject to the “sleep of death.” The idea that the body and soul can exist independently of each other is central to Smith’s doctrine. Joseph Smith also wrote and taught about demons and the ability of demons to inhabit a physical body. It’s not a vast intellectual jump to conclude a person’s soul can be forced from its body so that an evil spirit can inhabit it, and that the only way to rescue the severed soul is to kill the body.
The mainstream Church evolved and matured through the revelations of its successive living prophets, to reflect a more scientific, inclusive, and moderate view of the world. At every one of those junctures, the seed of a schism was planted.
Next Week: Part Two A look at Chad’s specific beliefs as outlined by Ian Pawlowski.
Have questions? Email me at info@thelorivallowstory.com.
Lori Hellis is an author and an experienced criminal attorney. Her book, Children of Darkness and Light, The Lori Vallow Story, is expected out in 2022.
Pretrial Conference and Bail Reduction
What the Heck Happened?
July 17, 2020
I want to thank the nearly 800 people who have signed up to receive this newsletter. It shows that people are interested in the legal aspect of the Lori Vallow and Chad Daybell case, and I’m happy I can provide some insight. Thanks too, to those of you who took the time to email me with your questions and comments. I look forward to connecting with more of you.
I am working with my web expert to add an archive function to the website so you can access past posts. We’ve tried several different approaches but they’ve all been buggy. I will let you know when the problem is solved.
Judge Mallard heard a few issues and set a trial date in January. So what happened today, and why?
Lori entered a not guilty plea and her trial on the three misdemeanor charges for January 25, 2021, to January 29, 2021. East Idaho News reporter Nate Eaton reported that DA Rob Woods and Lori’s attorney, Mark Means, have been discussing consolidating Lori’s Madison County Charges with the charges in Fremont County. If those charges are consolidated, this date will almost certainly be canceled.
I watched the live feed as Judge Michelle Mallard took up the issue of Lori’s bail again. She lowered Lori’s bail from $1 Million to $150,000. I know this causes a great deal of anxiety for the family, and everyone invested in the case, so let me outline what happened and why. Idaho defendants who are in custody have an absolute right to bail unless they are charged with a crime punishable by death. Idaho Criminal Rule 46 lays out the factors a judge must consider when setting bail.
Defendant’s employment status, history, and financial condition. Lori is unemployed and seems to have a spotty work history. We aren’t privy to Lori’s financial situation, but presumably, her lawyer is. He reports that she has “limited financial ability.” Surely, she has no access to any money she does have while she is in jail.
The nature and extent of the defendant’s family relationships. Rob Wood commented that her only family relationship is with Chad, who is her co-conspirator in the charges from Fremont County. It’s doubtful that there is a family member who would be willing and appropriate for Lori to be released to in a third-party release agreement.
Defendant’s past and present residences. Lori has a history of moving. Residential instability means higher bail.
Defendant’s character and reputation. Ouch. Everyone knows Lori honeymooned in Hawaii while her children were buried in Chad’s backyard.
The persons who agree to assist the defendant in attending court at the proper time. This factor could relate to item #2, a family member, or could relate to an advocate or a representative from a mental health or drug treatment facility. It probably doesn’t have much application to Lori’s case.
The nature of the current charge and any mitigating or aggravating factors that may bear on the likelihood of conviction and the possible penalty. This factor applies only to the charges currently pending in Madison County. Those are the Obstructing a Police officer, soliciting a crime and contempt. One of the things the judge needs to consider is what the ultimate sentence might be if the defendant is convicted, and how long they have already been in custody. Judge Mallard noted that Lori had already been in jail for about five months. Judges sometimes set a minimal bail if the defendant has already been in custody as long or longer than any a potential sentence.
Defendant’s prior criminal record, if any, and if defendant has previously been released pending trial or hearing, whether defendant appeared as required. Lori has no criminal record and has never failed to appear for a hearing or trial.
Any facts indicating the possibility of violations of law if defendant is released without restrictions. Another essential function of bail is to give the defendant an incentive not to commit crimes while on release, especially crimes relating to their existing charges, such as tampering with evidence or attempting to influence witnesses.
Any other facts tending to indicate that the defendant has strong ties to the community and is not likely to flee the jurisdiction. There is not much evidence that Lori has strong ties to the Madison County community. She just moved there in September 2019. Presumably, she no longer has an apartment or other residence.
What reasonable restrictions, conditions, and prohibitions should be placed on defendant’s activities, movements, associations, and residences. The judge ordered that if she is released, she is to have no contact with Chad or any other possible co-conspirators in the Fremont County case.
Judge Mallard considered the factors, then lowered Lori’s bail. Like a lot of states, Idaho has a bond schedule that provides guidelines for the sheriff in setting bond. The recommended bond for Resisting or Obstructing a Police Offer is $300. Judge Mallard considered the overall situation when she set the bond at $50,000 for each charge for a total of $150,000.
Why fight over bond if she’s still being held on one million in Fremont County, and what does this all mean? Lawyers must work their cases step by step, and case by case. Mark Means has to deal with two cases. He has to play a little game of chess, trying to anticipate future moves. Lori’s million-dollar bail could be lowered, or the Fremont County charges could be dismissed for some technical flaw (unlikely, but it does happen). Means has to work both cases separately unless and until they are consolidated. With the cases in different counties, consolidating would take a bit of administrative wrangling. It would probably also assure that Rob Wood would stay on the case. Consolidation isn’t the same as a change in venue. If the charges are consolidated, they will belong to one county or the other. Rob Wood, who is very familiar with the case, could be loaned to Fremont County, either as the lead prosecutor, or to prosecute the remaining Madison County charges. Rest assured that prosecutors are talking to each other, including the DAs in Madison and Fremont Counties, the Idaho Attorney General, and the prosecutors in Chander and Gilbert, Arizona. The FBI has been assisting with investigation in the case, but so far, there hasn’t been a hint of federal prosecution. That said, federal prosecutors usually wait for state prosecutions first. Although the charges are in multiple jurisdictions, I think it’s safe to say they are all working together.
What if Lori’s bail is lowered in Fremont County, or there is a problem that means those charges have to be dismissed? I can assure you that the DAs in Madison and Fremont Counties have a murder indictment teed up and ready. They will wait until their case is thoroughly investigated, or until some legal issue forces their hand. There are a few reasons for the long run-up to murder charges. First, once the charges are filed, as long as the defendant is in jail, they have a right to a speedy trial. That means they have a right to have a jury trial on the charges within 60 days. While most defendants in murder prosecutions waive that right to give their legal teams more time to prepare for trial, the DA has to be ready if the defendant asserts their speedy trial rights. Also, the prosecution only gets one shot at the charges. If a trial is held and Lori is found not guilty, she cannot be retried for the same crime.
These small and seemingly insignificant hearings are essential and necessary to get to a trial on the ultimate question of who, if anyone, killed at least five people. Like DAs and law enforcement, we have to learn to be patient observers.
This week’s regular Friday post will be the first of three parts on the LDS beliefs that may have led Chad and Lori to murder.
Thanks again for joining me on this journey.
Have questions? Email me at info@thelorivallowstory.com.
Lori Hellis is an author and an experienced criminal attorney. Her book, Children of Darkness and Light, The Lori Vallow Story, is expected out in 2022.
Not Guilty Plea and other Motions
Change of Venue and a Not Guilty Plea? What do these new documents mean?
July 16, 2020
Lori Vallow Daybell’s attorney, Mark Means, filed a new document yesterday. The document actually combines several things. First, it enters Lori’s plea of not guilty to the remaining Madison County charges of Resisting or Obstructing an Officer, Solicitation of a Crime and Contempt. It also makes three motions. Not all jurisdictions allow attorneys to combine motions into one document because their computer databases can’t track three motions in one document, but apparently, it’s still allowed in Idaho.
Let’s take the motions one at a time.
First, there’s a Motion RE: Reservation of Affirmative Defenses. What’s an affirmative defense? It’s any challenge to the procedure or the factual basis surrounding the charges. Mark Means outlines the specifics in his motion, and he wants more time because he says he doesn’t have all the discovery. Affirmative defenses have to be pled early in a case. If you don’t notify the prosecution that you intend to assert an affirmative defense, you lose it. The most typical affirmative defenses are self-defense, alibi, and mental capacity, but there are other, more procedural challenges too. Means outlines the specific defenses he wants more time to decide if he will assert.
Jurisdiction is a very technical challenge. In every case, the first question any court makes it to ask whether the court has jurisdiction. There are two kinds of jurisdiction: jurisdiction over the subject matter and jurisdiction over the person. In other words, is there a law that makes the conduct a crime, and did the crime occur within an area where the court has jurisdiction? To determine personal jurisdiction the court asks whether there is something about the person’s location or residency at thet time the crime was committed that gives the court authority over her. Lori’s remaining charges are: Resisting and Obstructing an Officer, for lying to police about JJ’s whereabouts, Solicitation of a Crime, for asking Melanie Gibb to lie about JJ’s whereabouts, and Contempt, for failing to comply with the court’s order to produce the children. The crimes occurred in Idaho, where the criminal behavior violates a state statute; it is believed that Lori was present in Idaho at the time the crimes occurred. I doubt there is a challenge to jurisdiction, but it’s a “use it or lose it” defense, so Means is smart to preserve it just in case. Yes, I said Mark Means was smart. I realize that opinion may be unpopular, but let’s table that discussion for another day.
Improper service. Every legal action must be served on a defendant so they know they are bring charged with a crime. In Lori’s case, she was served with the order to produce the children while she was still in Hawaii. Once the judge issued the arrest warrant, she was also served with it.
Two other objections Means wants to preserve are “defendant did not knowingly violate any order,” and “inability to comply.” Here is where the cringy argument comes in: at the time the court issued its order for Lori to produce the children, they were already dead. You can’t produce dead children to prove they are alive and well. Impossibility is a defense to contempt. I’m a little surprised the DA didn’t dismiss this count with the others. The DA may argue that while it was impossible for Lori to produce the children, it wasn’t impossible for her to answer, because she could have notified the court the children were dead instead of ignoring the order.
The last defense Means seeks to preserve is that the two charges, Resisting and Obstructing an Officer and the Solicitation of a crime, are actually the same offense; that soliciting Melanie to lie about JJ’s whereabouts is just a subset of the offense of obstructing the police investigation. Criminal charging is not an exact science. Usually, the DA will charge the most serious crime that arises out of a specific course of conduct. The DA will argue that the crimes were separate and distinct acts, first lying to the police about where JJ was and then asking Melanie to lie. Means will argue that it was all the same course of conduct, and it will be up to the judge to decide.
Don’t confuse this with another tactic in charging a case, where the DA charges the same conduct under several theories. For example, a DA might charge the same murder as a felony murder (committed while the defendant was committing another felony, like rape) and as aggravated murder because the victim was under the age of fourteen. It’s a way of making sure that when a trial comes, the DA is able to argue several different theories of how the crime was committed.
Sometimes what seems like catchall phrases in legal documents can be very important. In this case, Means says he “expressly reserves the right to assert additional defenses once the state has complied with discovery requests in these cases.” That means that he is reserving the right to assert the other affirmative defenses, like alibi, self-defense, and mental disease or defect at a later date in “these cases. (plural)” Sneaky or sloppy? Not sure, but it seems he is attempting to lump this case in with the conspiracy charges in Fremont County.
Second, there is a Motion For Bond Reduction. Every time this comes up, people hyperventilate – just quit it. Lori’s bond in Madison County was set based on the more severe felony charges. Now that the abandonment charges have been dismissed, it makes sense to ask for a reduction in the bond on the remaining charges. Her bond on the more serious charges out of Fremont County is still set at $1 Million, and I don’t expect the judge to lower it, so no more hyperventilating. The DA is not going to allow Lori or Chad to be released if he can help it. As it stands, there is no reason to rush the investigation; they are working methodically to build a case for murder. It’s like a massive jigsaw puzzle with pieces that can fit together more than one way, and it’s crucial that they don’t rush. Once murder charges are filed, the defendant’s speedy trial rights attach. While most defendants waive that right so they can take their time building a defense, the DA must be ready to present their case within 60 days in case the defendant asserts her right to a speedy trial.
Third, Means reserved the right to ask for a Change of Venue. This could be important for a couple of reasons. Means could ask that the charges be moved from Madison County to Fremont County and consolidated with Lori’s other charges. It might make it easier to defend these charges since evidence in the Fremont County case could make these charges moot. The other reason for a change of venue is because all of the pretrial publicity will make it challenging to seat a fair and impartial jury. To get the court to order a change of venue, Means will have to show that Lori will be unfairly prejudiced if the case remains in Madison County and that an impartial jury could be found if the case was moved to another jurisdiction. Let me illustrate. I practiced in a rural area that covered three counties with one medium-sized city and many small towns. When a woman was accused of starving her adopted child to death in one of the small towns, the story was all over. The case was reported on the local news, but in the rural county and small town where the crime happened, nearly everyone knew someone connected to the case. The court ordered the trial moved to the neighboring county where the city was located; it was more likely that jury members wouldn’t know any of the people and have heard so much about the case. In the case of Lori Vallow, because of all the national attention, it may not be possible to find a venue that is less affected by the news.
This Week: A three-part series on Chad and Lori's beliefs.
Coming soon: posts on why cult leaders are so successful and why mothers kill their children.
Have questions? Email me at info@thelorivallowstory.com.
Lori Hellis is an author and an experienced criminal attorney. Her book, Children of Darkness and Light, The Lori Vallow Story, is expected out in 2022.
Sealed Document? Say What?
Why Did a Judge Seal The Documents About Mark Means' Conflict of Interest?
July 13, 2020
Before I jump into this, I want to thank all of you for your interest and your positive feedback about these newsletter posts. Subscriptions grow every day. For those of you who would like to see the past postings, there is now a link on the website that will take you to the Mailchimp archive. I know the link-hopping is clumsy, and I apologize. My web expert and I are working on a better interface, but in the meantime, you can get to those past posts at thelorivallowstory.com if you like. Some of the available posts:
Let’s Talk Law, discusses the law in Idaho and under what circumstances Lori and Chad can be charged with Murder.
Let’s Talk About Insanity, discusses insanity and capacity defenses in Idaho.
Lori’s New Charges, discusses why the original charges were dismissed
.
Let’s Talk about Evidence, examines the difference between types of evidence.
Now, to answer some questions about the issue of the sealed document. Judge Faren Eddins – yes, that Judge Eddins, the one who Lori disqualified in Madison County, but who is presiding in Jefferson County – (more about that later in this post) issued an order sealing some court filings. The filings having to do with the conflict of interest Mark Means may have because he previously, and briefly, representing Chad Daybell. As you may recall, Judge Eddins asked Means about it at Chad’s arraignment.
The documents are sealed, and I don’t know what’s in them any more than you do. But I do know why this might have happened. Let’s dive down the speculation rabbit-hole together.
For those who think Mark Means is out of his depth, he did a smart thing here. You heard me; he did a smart thing. I did a deep dive into the ethics issue in last week’s post, “Does Mark Means Have an Ethics Problem?” I’m going to take a quick pass over ethics rules here, for those who missed it. The avoidance of conflicts of interest is at the heart of ethics rules. The rule is that you can’t represent someone if you have previously represented someone else whose interests are opposed to your new potential client. Under some circumstances, the conflict can be waived. The specific situations where the conflict can be waived vary slightly from state to state. If the conflict is waived, it must be in writing and signed by both the former client and the potential client.
It’s clear that Lori wants to keep Mark Means. There are many reasons people don’t want to change attorneys. People form relationships with their lawyers. Rebuilding that trusting relationship with someone new may not be desirable or possible. Some clients just don’t have the emotional bandwidth to do it. Replacing your lawyer is also expensive. You have to pay someone to become as familiar with your case as the first lawyer, who had been there from the start, was. It requires a lot of duplication. I expect in Lori’s case, it’s a combination of both things. Lori and Mark Means already have a lot invested in each other.
Means’ representation of Chad was brief, and probably not very substantive. Means likely didn’t have much contact with Chad before he was arrested. Means may have given Chad some basic advice about how to handle the ongoing investigation and his contact with law enforcement, such as, “don’t’ talk to the police,” and “yes, you have to honor a legal search warrant.” Means may have had a discussion with both Chad and Lori about the scope of his representation. He may very well have told them he could give Chad general advice, but if charges were filed, he would need a separate lawyer. Means’ brief representation of Chad was before any charges were filed against Chad, and before the DA had any obligation to send Means discovery materials related to Chad. Means ended his representation before he got any information specific to Chad; all he had was the discovery he received from the DA on Lori’s case. In other words, Means didn’t know anything specific to Chad, and probably didn’t receive any confidential information directly from Chad. Means asked for the filings related to the conflict to be sealed because he owes a duty to both Chad and Lori, not to disclose any confidential information or private conversations they may have had. When Judge Eddins asked for Means to file something about the potential conflict, he had to do it under seal, because putting the specifics his conversations with Chad and Lori in writing would be a violation of that obligation to keep client communication confidential. In our system, we favor open and public court proceedings because, as Supreme Court Justice Brandeis said, “sunlight is the best disinfectant.” The statute that Means cited in the motion and order is specific about when things can be sealed.
When lawyers file motions, they cite to the law that gives the judge the authority to do what they are asking. In this case, there are two instances where a document can be sealed; the first is to “prevent harm.” The analysis for this one may be a little squishy. The harm has to outweigh the benefit of the disclosure, so the judge has to balance the benefit and the harm. The second reason is so that the person can get a fair trial. This one is a little more persuasive. At every step in a criminal case, the decision a judge makes, even as in this very preliminary matter, can set the stage for a later appeal. Judges don’t like to be overruled, especially in high-profile murder cases.
It’s likely that once the case is finished, any sealed documents will be unsealed.
While I think it’s foolish for a lawyer to continue to represent a client when there is even a perceived conflict of interest, I understand why it happens. Lawyers want to protect their clients; sometimes, that puts us in a rock-and-hard-place situation. I’ve been there myself, but choosing to continue with a client under these circumstances could put your career at risk. If I could talk to Mark Means, I would tell him to remember that when it comes to these situations, no good deed goes unpunished.
On the subject of Judge Eddins, it’s not at all unusual for a rural judge to serve in more than one county. Often, the only way neighboring counties can afford enough judges to avoid conflicts is by sharing them. Lori disqualified Judge Eddins in Madison County. The Madison County charges of abandonment and contempt, have been dismissed. The new charges were filed in Fremont County because Chad’s property is just over the county line. Judge Eddins has not been disqualified from those charges in Fremont County. Lori may move to disqualify him again in those charges. Then again, she might not. The calculus of when and why to disqualify a judge is a topic for another post; I will explore the subject if and when she tries to disqualify Judge Eddins again.
This Week: A three-part series on Chad and Lori's beliefs.
Coming soon: posts on why cult leaders are so successful and why mothers kill their children.
Have questions? Email me at info@thelorivallowstory.com.
Lori Hellis is an author and an experienced criminal attorney. Her book, Children of Darkness and Light, The Lori Vallow Story, is expected out in 2022.