Tammy's Autopsy and other news

Emma Daybell's comments to Court TV, and what all the new developments mean

February 13, 2021
 
It’s time for a quick round-up of recent news in the Lori Vallow/Chad Daybell case. There have been several developments.
 
First, Tammy Daybell’s autopsy was returned, ending months of speculation. When the autopsy results were returned for Lori’s third husband, Joseph Ryan, and her brother, Alex Cox, both ruled their deaths were from natural causes, and both were quickly released. Both of those deaths were in Arizona, but I still believe Arizona officials are deferring to Rob Wood, the special prosecutor in Idaho, and that we can read something into Tammy Daybell’s autopsy report being treated differently. 
 
There were two documents released dealing with Tammy’s autopsy. The first was a statement from Fremont County Sheriff Len Humphries on February 4, 2021, which read, “Yesterday the Fremont County Sheriff’s Office received the autopsy report on Tammy Daybell’s body from the Utah Medical Examiner. The contents of this report will not be made public at this time as it is evidence in an open and ongoing investigation. We will release additional information as it becomes available.” 
 
The second was a longer letter dated February 1, 2021, from Idaho Deputy Attorney General Colleen D. Zahn to Fremont County Prosecutor Lindsey Blake. As you may recall, former Fremont County Prosecutor Marcia Murdoch asked the Idaho AG to take over Tammy’s case in April 2020. There were several reasons. Murdoch was not running for reelection, opening the position to the uncertainty of a contested election and threatening continuity in the investigation of Tammy’s death. But other issues complicated the investigation. The most significant was that Tammy was buried and later exhumed in Utah, and the Utah Medical Examiner was responsible for the autopsy. Working between states is much easier when done by state agencies rather than at the county level. Additionally, counties have far smaller budgets to pay for investigations. For all these reasons, the inquiry into Tammy’s death was transferred to the Idaho Attorney General’s Office.
 
The February 1, 2021 letter said at the request of the present Fremont County prosecutor, Lindsey Blake, the AG was returning the case to Fremont County. Here is what we can surmise from this. Sometime before February 1, 2021, prosecutors knew Tammy’s autopsy was back. They also knew there was information in the report that was significant. Madison County Deputy Prosecutor Rob Wood has been appointed a special prosecutor for any cases surrounding Vallow and Daybell. That means that he can file charges out of any county in Idaho but cannot file charges on cases within the Attorney General’s authority. Once the autopsy report was back, the only person who could ask for the case back was Fremont County Prosecutor Lindsey Blake. She did so to make it possible for Rob Wood to file charges surrounding Tammy’s death. 
 
Here is where I dive into some moderately-educated speculation. 

• I think that Rob Wood is waiting for the autopsy reports on the children before he drops all the murder and conspiracy to commit murder charges. I suspect that JJ’s report is complete, except perhaps for toxicology. Wood told Summer that Tylee’s remains were at the FBI crime lab, and her autopsy could take some time to complete. I think that how Tylee died and how her body was disposed of are so heinous that Wood is waiting until he has the full story her remains can tell to formulate the charges.

• Looking at the timing, I think it’s possible Zulema Pastenes told authorities what substance to look for in Tammy’s autopsy. It may also change what they are looking for in the children’s autopsies.

• Prosecutors want to close cases with confessions because that removes the possibility of years of appeals. The more evidence that stacks up, the better. I’m certain Rob Wood knew what was in Tammy’s autopsy before the report was released because he asked the Fremont County Prosecutor to get the case back from the AG before the sheriff announced the report was back. And I’m sure Wood shared that information with the defense attorneys. Remember all the early demands to see the autopsy report? Means isn’t asking anymore, which seems to signal he’s seen it. I’m sure Wood’s disclosure of the autopsy results is what led Mark Means to take to Twitter. His series of Tweets seem a bit panicky. My advice to Mark: stay off Twitter. It’s not a good look for you.

• John Prior is a realist, and Mark Means is an idealist. I think Prior is more likely to convince Chad to cut his losses and talk.

 
 
Tammy’s autopsy isn’t the only news in the case. Lori’s attorney, Mark Means, filed a motion on January 31, 2021, asking Judge Boyce to reconsider his decision on Means’ motion to disqualify Rob Wood. The judge issued a ruling on February 10, 2021, denying the motion. The judge also took a little swipe at Mark Means’ lack of criminal law experience, pointing out that while the Idaho Rules of Civil Procedure allow such motions, the Idaho Rules of Criminal Procedure do not. That is because the proper recourse in a criminal trial is an appeal, not a motion to reconsider. 
 
Lastly, Court TV posted a telephone interview they did with Emma Daybell Murray. It’s the first time any of Chad and Tammy Daybell’s children have done anything other than sticking their tongue out at reporters. According to Emma, she and her siblings have not seen a copy of her mother’s autopsy report. When Emma was in touch with the Fremont County Sheriff to ask for the report, Sheriff Len Humphries told Emma that she needed to work with the detectives. Emma reports that detectives told her that in order to see the report, she and her siblings would need to meet with detectives and answer questions. Emma declined to discuss the case further. Why would detectives demand to speak with the siblings? It’s no secret that the Daybell children have been stonewalling police since the case began. Some of those children lived in the home where Tammy died, and the children’s bodies were found. It’s no surprise, then, that law enforcement wants to question them about events surrounding their parents. Withholding the results of the autopsy is within their authority since there is an ongoing investigation and there are no current charges arising from it that would require its release in discovery. 

Tammy Daybell's Autopsy is back!

But why won't it be released, and what does it mean?

February 3, 2021
 
            When will Tammy Daybell’s autopsy be done? Asked and answered!
 
            The Fremont County Sheriff’s office ended months of speculation by announcing that Tammy’s autopsy report is finally complete. Sheriff Len Humphries released a brief statement, announcing that the results had been received and would not be released. Frustrating, perhaps, for a lot of people who follow this case closely. But I think we can also infer some important things from that brief announcement. Here are my thoughts.
 

• Something important was found. How do I get there from a few sentences? Well, follow me down the rabbit hole. I believe that Rob Wood is coordinating this entire investigation, even though some of it is happening out of his jurisdiction in Arizona. I think the Arizona officials are following his lead. The autopsy reports of both Alex Cox and Joseph Ryan were released because the cause of death was ruled to be natural causes in both cases. Tammy’s report, on the other hand, is not being released. Judging from the previous actions, I’d say there is something important in Tammy’s report.

• Then remember this exchange between Lori’s sister, Summer Shiflett, and Special Prosecutor Rob Wood?

PROSECUTOR ROBERT WOOD: I said this to someone the other day. Who knows, your sister is our goal is. sometimes you get murder and all you have is that murder and you just have to run out and charge it and then you kind of put it put it together. We were able to put them in jail with a high bail on these lower charges and put together a case. Now our goal is to have such a strong case that when she has competent counsel, I don’t know if you know this, her attorney, has never handled a felony before.
Summer: mhmm
PROSECUTOR ROBERT WOOD: he’s never, never done any meaningful criminal work at all. And he doesn’t know what he’s doing. He’s a nice guy.
Summer: yeah, I met him
PROSECUTOR ROBERT WOOD: other than when he’s lying about me, but he a he’s he doesn’t know what he’s doing and once we file further charges, she will be appointed counsel who will know what they’re doing. And our goal is to, put together such a case, that they’re smart enough to say, uh, it’s gonna be better to talk.
Summer: mhmm

So, Tammy’s autopsy report is just another brick in the stone wall of that case.

• People often ask me to speculate about why Rob Wood hasn’t filed murder charges against Lori and Chad. Again, I think the answer is also in Wood’s conversation with Summer.

 
PROSECUTOR ROBERT WOOD: And uh, unfortunately we do. We have enough evidence to prosecute him, we do. But I, the case against your sister is stronger, um. But I just I kind of just want to give you like just that background. That’s the kind of the context that we see this guy. Came in here. And you know not making excuses for anyone but kind of blew up this situation. And he did not care, who died.

          I also think that Wood is waiting for the autopsies to come back on the children. In that same conversation, Wood tells Summer that Tylee’s remains are at the FBI’s crime lab, and he suggests it could take a while. 
 
            Rob Wood has shown over and over that he is a methodical, careful prosecutor. He’ll file murder charges when he believes his case is ready. In the meantime, Chad and Lori are both in jail, where their every movement and every word are recorded. When the time comes, I think we will see murder charges for Tammy and at least conspiracy to commit murder charges for the deaths of the children. 
 
            I am sure Rob Wood has the report. I’m also sure that he has, at least verbally, shared the contents with the defense lawyers, Prior and Means, and that they have been discussing the results with their clients. With every gathering piece of evidence, Rob Wood is saying to the defense, “now will your clients come clean?” Ultimately, Wood wants Chad and Lori to admit what they did and spill all the details. If they do, they are punished for what they actually did and not what a jury believes beyond a reasonable doubt that they did. Wood, like all prosecutors, prefers that certainty. 

Who paid Brandon Boudreaux $12,000,000?

February 2, 2021
 
The case against Chad Daybell and Lori Vallow has gone a little quiet, but there is something to report about some of the players who are on the edges. 
 
On March 31, 2020, Brandon Boudreaux filed a lawsuit alleging defamation. That suit was just settled for TWELVE MILLION DOLLARS! 
 
We need to identify a few people for this to make sense: 
 
Melani Boudreaux Pawlowski is the daughter of Lori’s deceased elder sister, Stacy. Lori sometimes refers to Melani as her daughter. Melani divorced Brandon Boudreaux and married Ian Pawlowski. When Melani left Brandon, she also left their four children. Brandon filed for and was granted temporary custody of the children, and there has been a very heated custody dispute going on ever since. 
 
Robert Jarvis and Garrett Smith are the lawyers who were involved in representing Melani in the custody dispute. Smith also represented Lori’s sister, Summer Shiflett, and Zulema Pastenes, the wife of Lori’s deceased brother, Alex Cox. Smith gave Lori’s attorney, Mark Means, a copy of Rob Wood and Summer Shiflett’s recording. He was called as a witness during the hearing on Lori Vallow’s motion to disqualify Special Prosecutor Rob Wood.
 
Now a little about defamation. Defamation is a statement that injures a party’s reputation. To prove defamation, you must have:

• A false statement that claims to be fact

• Publication of that statement

• Intention or at least negligence

• Damages or harm.

• Proving that the statement is true is an absolute defense to defamation.

 
Apparently, as part of their representation of Melani, Smith, and Jarvis issued press releases about the case. In one press release, they made some very nasty representations and presented them as fact. They published the statement by sending it out to news organizations and intended it to harm Brandon’s reputation. Brandon is a sales professional and a devout member of the Church of Jesus Christ of Latter-Day Saints. The representations in the news release that Brandon had a history of victimizing women, used extreme and dark pornography to which he was addicted, engaged in homosexual affairs, was engaged with his family in organized crime, and had, along with his family, covered up instances of child molestation, drug addiction, kidnapping, assault, and killing were simply untrue. Clearly, those allegations had a detrimental effect on Brandon’s business and personal reputation. 
 
Brandon sued Smith and Jarvis and their wives, personally. Why add the wives, who probably had nothing to do with it? Because Arizona is a community property state and Brandon’s attorney wanted to avoid any chance, they would try and transfer assets to their spouses. The judgment does have a few caveats in it. In Arizona, judgments can be reviewed for “reasonableness.” Since we don’t know all the details of the settlement, it’s hard to gauge reasonableness. Some of the awards could be categorized as punitive damages, designed to punish the defendants for their vindictiveness. The other provision is that the judgment may be paid in full or in part by the lawyer’s insurance carrier. In Arizona, lawyers get their malpractice insurance through private companies. It’s not clear how much the attorneys were insured for. This means Brandon may not get the full $12,000,000. Lawyers who represent people in this sort of case usually do so on a contingency fee agreement, meaning they only get paid if they win. They generally get 25 -33 percent if the case settles before trial. Still, Brandon will receive several million dollars in compensation for Smith and Jarvis maliciously smearing his good name. 
 
            Those of you who have seen the Investigation Discovery program Doomsday: The Missing Children,which featured Larry and Kay Woodcock, will remember that when Tylee and JJ’s bodies were found, the coroner required that JJ be identified by a family member. Brandon drove straight through from Phoenix, Arizona, to Rexburg, Idaho, and spared Kay and Larry by making the identification for them. Melani and Brandon’s children remain in his custody. Melani recently had a baby with her present husband, Ian Pawlowski.  

What are all these motions about?

January 27, 2021

Hello! It's been a minute since there's been a new development in the Lori Vallow case, but documents and more documents have dropped this week.

The sudden surge of documents from Mark Means is just another example of his lack of criminal law experience.

One of the most significant places that criminal and civil procedural rules are different is in the area of discovery.

Discovery materials are books, papers, records, recordings, photographs, videos, interviews, and much more. Any tangible item that contains information about the case is discovery. In civil cases, the discovery rules allow many more opportunities to ambush your opponent. In criminal law, the seminal case of Brady vs. Maryland, 373 U.S. 83 (1963) established the requirement that ALL materials, including information that proves the defendant’s innocence, must be disclosed by both sides. If the prosecutor fails to turn over information in his possession, that evidence will not be allowed at trial. Because of these rules, discovery motions, while common in civil cases, are rare in criminal cases.

Because Rob Wood is legally required to turn over all relevant information, Means should not need to file motions to compel discovery. The prosecutor is not required to point out or highlight information or indicate the information he finds important in any way. The prosecutor is required to organize the information in a reasonable form. You can’t just take thousands of pages of paper, toss them in a box in any order and hand it over. The prosecutor must make sure that the information is in a useable form. These days that means each piece of evidence is usually in an individual file on a digital storage device or is transmitted electronically directly to defense counsel.

Means sent a request to Rob Wood on December 17, 2020, for discovery. Wood’s response was to say that he had sent all relevant discovery, but he would resend everything out of an abundance of caution. Presumably, that is what was on the hard drive John Prior received. Because there is a reciprocal duty to disclose evidence, discovery disputes are unusual. In general, if there is an error or oversight, a simple telephone call or email is sufficient to correct the problem and obtain the materials. Means should have been able to call Rob Wood and let him know he had not received his copy of the hard drive.

The collegial relationship between a prosecutor and a defense attorney is based on mutual trust. It’s a relationship best summed up by President Ronald Reagan, who famously said, “trust but verify.” Trust is a delicate thing and is easily compromised. No doubt, Mark Means’ recent effort to disqualify Rob Wood and his continuing attacks on Wood’s professional character has eroded what little professional relationship they may have had.

There are professional relationships between attorneys that are so fraught with hostility and mistrust that the only safe place for them to communicate is in front of a judge. It may be that the relationship between Means and Wood has reached that point. It’s a frustrating situation that can cause the best lawyer to make the odd impatient remark. To his credit, Wood appears to be taking the high road most of the time, although he did make some unnecessary remarks to Summer Shiflett about Means’ competence.

Realistically, like Dorothy had the power to go home all the time by just clicking the heels of her ruby slippers, Wood has the power to make Means disappear any time he wants. Once Wood files murder charges, both of the current defense attorneys are disqualified. Those who theorize that Means is angling to be fired might be right. It seems like the golden couple is out of money, and no one likes working for free.

Many people wonder why Rob Wood is waiting. Like most prosecutors, Wood plays his cards close to the vest. His thought process is one of the things I hope to explore when the case is over, and I’m able to interview people for the book. I speculate that he is waiting for the autopsy reports on the children. As we know from his conversation with Summer, Tylee’s remains were sent to the FBI lab, and Wood told Summer that process could take a long time.

There were other documents filed this week. Wood filed a notice identifying an expert he plans to call at the hearing on the change of venue, and Wood filed motions about access to his client. Let’s get Wood’s expert out of the way first. Chad’s attorney, John Prior, and Lori’s attorney Mark Means had some sort of survey done to determine how many people in the Rexburg area had heard about the case and formed an opinion about innocence or guilt. Presumably, the results of that survey were included with their motion to change venue. Wood is challenging the science, or lack of it, behind the survey methods. It appears to be a careful move to head off any later challenges on appeal because I doubt Wood opposes a change of venue. Wood wants a clean trial without the chance that the convictions will be overturned because of a jury pool tainted by pretrial publicity.

Mark Means also filed another motion about access to his client. I see both sides of this problem. Like most jails, inmates visit through glass and talk through a telephone system. All of their conversations, other than those with their lawyers, are recorded. In some jails, there are separate places for attorneys to meet with their clients. While the attorney and client are still required to communicate by phone through glass, there is a desk surface, and some even have a slot to pass documents back and forth. Jails also have rooms for private face to face visits between lawyers and their clients with prior arrangement. It doesn’t appear that Madison County jail has separate attorney rooms. Means reports that from March 2020 until June 2020, he could only meet with Lori through the glass. Then, apparently, in June 2020, Means began meeting with Lori face to face. But, when he arrived at the Jail in January 2021, he was told he could, once again, only meet with his client through the glass, using the phone system. It appears to be because of COVID-19 restrictions. Means points out that the jail has previously recorded his calls with his client, which makes him suspicious that they will do so again. He also points out that when his client is allowed to talk on the telephone with him, there is always a deputy nearby. Means is right – any defendant must have free, unfettered, and confidential access to their attorney.

The case against Lori Vallow includes a lot of data, including a lot of digital records. In this kind of issue, the lawyer must have use of his laptop and a decent wifi connection to review the evidence with his client. That’s hard to do when the lawyer sits on a stool talking through a phone while juggling his laptop. As you can see from the picture, there is nowhere to rest the computer and no way to show it to his client. Means is asking for his client to be allowed a cell phone so that she can speak to him anytime she wants, presumably with more privacy—that’s problematic. I’m sure we can all think of scenarios where a cell phone in the jail could compromise security, even if the phone is somehow restricted to only allow her access to her attorney.

Means may have a good argument for everything, but here is the problem: the judge does not have the authority to order the jail to do anything. That’s right, the judge can suggest and request, but he has no authority to order, so Means’ is barking up the wrong tree, so to speak.

Over the years, I had the best success when I had an excellent rapport with the jail supervisor. The jail never wants to be the reason an inmate gets a new trial or wins an appeal, so they are willing to work with you. Still, it comes down to trust. If you have a reputation as a defense attorney who follows the rules, you often get some leeway. As an example, I represented a young man in a very serious case. He was a juvenile, being tried as an adult. My client was a somewhat quirky guy with some very serious trust issues, and I found it hard to establish enough of a relationship with him to have a serious discussion. After several visits, the only thing I knew about my client is that he was craving a Starbucks mocha. I had a chat with the duty supervisor, who permitted me to bring my client a coffee drink. I got that break was because I had consistently shown that I was a lawyer who followed the rules when it came to contact with my clients. The coffee did the trick. It was the chink in my client’s armor that opened the door.

For all these reasons, I don’t think Means’ motions are going anywhere, and his actions beg the question, why is he spending his client’s nonexistent money filing them?

Judge Boyce will hold a hearing on Means’ Motion to Compel Discovery on February 17, 2021, at 9:30. I expect at that time, Rob Wood will come to court with proof that he has given Means all the discovery he is entitled to, and the hearing will be brief and pointless. No hearing has been set on his other motion about jail access, but it would not surprise me if it’s set at the same time.


Thanks for all the messages, I do answer every email. I hope you are all staying safe and avoiding the worst of the winter weather. We even had snow flurries in Phoenix!

Rob Wood Was Not Disqualified

Let's get in the weeds to find out why 

January 9, 2021
 
Hello Friends. 
 
The hearing on whether to disqualify prosecutor Rob Wood wrapped up late yesterday. The judge denied the defense motion to disqualify Wood. 
 
Some of you are curious about the legal issues and the legal argument. If that’s your jam, grab your ghillie suit because we are about to get into the weeds. 
 
Judges and lawyers rely on precedent for guidance. In this case, the issue of disqualifying a prosecutor pretrial has no precedent in Idaho. Judges don’t like making new law, so when they can’t find a precedent in their state, they look to other states. That’s what Judge Boyce did yesterday. He found a similar case from New York. Since no two cases are alike, we often have to draw conclusions from similar, but not identical, facts through analogy. 
 
Yes, there were hours of witnesses and argument. Still, the issues boil down to this: Means and Prior argued that Rob Wood’s conduct, suggesting to Summer that Lori could help herself if she talked, and badmouthing both Chad and Lori’s lawyer, was enough to get him disqualified. Prior wanted the judge to find that Wood’s conduct alone was enough to disqualify him.
 
On the other hand, the state first argued that Wood’s actions were not coercive, and even if they were, they argued the standard “no harm no foul” argument. Evans wanted the judge to find that the defense needed to prove Wood’s conduct had some effect and didn’t. 
 
The defense argued that Wood’s conduct with Summer throws all witnesses statements into question because no one knows which witnesses Wood talked to and whether what he said changed their minds about things. That was why Mark Means complained that the state had not responded to his discovery request, which was a request for a list of all the witnesses Rob Wood has talked to. 
 
There was much talk of “taint” hearings. (As an aside, ’taint has a different and vulgar meaning in urban and military slang, and my 20 years in the military makes me chuckle every time John Prior says it.) Prior is referring to a preliminary hearing to determine whether Wood’s conversations with a witness were so coercive that they “tainted” the witness’s ability to tell the truth. 
 
The judge used the New York case of People v. Paperno, 24 NY2d 294 (1981) as a road map to his decision. The facts of the case are not similar to our case. In that case, the question was whether the prosecutor’s conduct in a grand jury hearing was coercive. As in our case, there was a transcript of the grand jury hearing. The court in Paperno said there were two legal principles that applied, the advocate-witness rule and the unsworn witness rule. The advocate witness rule states that if a prosecutor is called as a witness to testify to a disputed material issue, he should be disqualified from trying the case. The court said the advocate-witness rule didn’t apply and moved on to the unsworn witness rule, which the Paperno court said required a more nuanced analysis. The rule is that the prosecutor may not inject his own credibility into the trial. Here is the heart of the Paperno case’s analysis:
 
We begin with the proposition that, on a pretrial motion to disqualify the prosecutor, it is incumbent upon the defendant to make an adequate showing that the pretrial activity of the prosecutor will render his participation in the trial unfair. A mere assertion by the defendant that he intends to question some aspect of the prosecutor’s conduct is insufficient. Rather, the defendant must demonstrate that there is a significant possibility that the prosecutor’s pretrial activity will be a material issue in the case.
 
That is the reasoning, and the rule Judge Boyce applied. Prior and Means’ burden was to show that Wood’s pretrial activity would make his participation in a later trial unfair. As the judge put it, whether Wood “engaged in conduct that jeopardized Ms. Vallow and Mr. Daybell’s right to a fair trial.”
 
The judge rejected their claim that the very act of talking to Summer should disqualify Wood and adopted the New York court’s rule that the conduct has to have resulted in unfairness. 
 
Although the first motion on this subject was filed by Mark Means, John Prior took point in the hearing. Their first witness was attorney Garrett Smith, who represents Summer Shiflett and Zulema Pastenes. Smith was questioned about the circumstances surrounding the recording. His testimony was necessary to lay the foundation for the admission of the recording. Second, they called Dr. James Davidson, a forensic psychologist who talked about the possible impact the conversation might have had on Summer. Lastly, they called Dr. Samuel Newton. Dr. Newton is a lawyer with a doctorate in U.S. history. He is an interesting character, and I think we will see him again. His doctorate area of focus is Mormon history. I suspect the defense already had plans to use him at trial; when this issue came up, they realized he could also be a good witness at this hearing because of his expertise in legal ethics. 
 
There was some interesting wrangling at the very end. At the last minute, the state moved to reopen the case and allow Summer to testify. The state filed an affidavit, explaining why they made the last-minute request. The affidavit was from Ms. Gee, who works in Wood’s office. The affidavit reported that she took a call from Summer Shiflett late in the day and then reported what Summer said. The information was offered to convince the judge that he should reopen the hearing for additional testimony. Prior objected, saying the state had their chance and didn’t offer witnesses, that Prior chose not to call Summer because he “didn’t want to put her through it,” and that the affidavit of Ms. Gee was hearsay. 
 
Hearsay is an out-of-court statement offered for the truth of the matter asserted. The statement of Ms. Gee, reporting what Summer said, is hearsay. The judge was correct to rule that Gee’s affidavit’s hearsay could not come in at the hearing. The judge also ruled that he was not going to allow the last-minute testimony. 

Here is where I think DDA Evans let his side down. There are numerous ways to justify reopening a case. Every time a lawyer files a motion with the court, they must cite the law that allows them to ask for the relief they request. Every state has rules of procedure that govern how the court operates. In most states, Idaho included, there are both rules of civil procedure and rules of criminal procedure. And, as in most states, many of the civil procedure rules also apply in criminal cases. These rules are pretty esoteric (but we’ve got our ghillie suits on, right?) and have to do with how you modify the initial pleadings, add parties, conduct discovery, and how you conduct a trial. Within those rules are provisions for when you can reopen evidence in the case. There were plenty of other actual procedural rules that could have been the basis for Evans’ motion to allow Summer’s testimony. Instead, he cited a rule of professional conduct. The rules of civil and criminal procedure govern how judges conduct trials, and they bind judges. Professional conduct rules are ethical rules that govern attorney conduct and how the bar association deals with violations. The rules of professional conduct are not justification for a motion, and a judge has no authority to enforce them; only the state bar association can do that.  
 
The law favors a beginning, middle, and end to hearings and trials and discourages reopening testimony once a party rests. Prior argued that both he and Means were required to disclose all their witnesses and exhibits in advance, and the late offering of new testimony amounted to an ambush.  The judge agreed. 
 
Despite Evan’s mediocre performance, the judge found the law was on Wood’s side and denied the motion to disqualify Wood.
 
As I watched some of the comments about the case scroll by during the live feed, I decided  I need to respond to a few. 
 
I began this newsletter because I wanted people to have a place where they could find clear-eyed explanations of the complex legal issues associated with the case. I hope I have provided that, and that going forward, you’ll look to this newsletter for reliable information. 
 
I understand this case engenders a lot of passion and that when these hearings happen, people approach them with a lot of emotion. Our system is designed to protect the rights of the little guy against the government abusing its power. Sometimes that means that guilty people get a break. Erring on the side of fairness and caution isn’t being easy on crime; it’s protecting the system we all rely on and cherish.
 
Judge Boyce was not “useless.” He acted just as I expected him to. He was not too easy on anyone, and the hearing was not a waste. The defense attorneys raised an issue that they believed was in their client’s best interest. It’s their job to raise those issues and preserve them on appeal. A judge listened to the issues and arguments, applied the law, and made a decision. 
 
Both John Prior and Mark Means did their jobs competently. Yes, Mark Means is inexperienced in criminal law, but he is not an altogether inexperienced lawyer. He acquitted himself nicely in this hearing. Yes, John Prior looked grumpy. I, myself, have what many call a “resting bitch face.” When a lawyer is working hard in the moment to follow the hearing, take notes, and formulate arguments on the fly, we don’t have time to pay attention to whether we have a pleasant look on our face. Yes, it’s hard for some to hear John Prior talk about ethics because he was charged with a felony for inappropriately touching a woman. He agreed to plead to a lesser misdemeanor charge in the middle of his trial, and because the conviction was for a misdemeanor and not a felony, he can continue to practice. No, I don’t think he looked or sounded drunk in the hearing. Yes, he has a couple of annoying verbal tics. Most lawyers do. We develop them in place of the uhs and ums that are part of everyday speech. Mine are “so” and “well,” his are “quite frankly” and “quite honestly,” and yes, they are annoying. So annoying, in fact, that I would not recommend turning them into a drinking game if you hope to get through an entire hearing without blacking out. I practiced with a lawyer who dropped his hands on the table to punctuate his speech. Now that was annoying. “Your honor, BANG, I don’t believe the police can demonstrate their search BANG was lawful under the fourth amendment BANG and that their intrusion into my client’s home BANG was a violation of my client’s BANG fourth amendment rights BANG against illegal search and seizure BANG.”
 
The state of Idaho requires that attorneys who represent defendants in capital cases be certified by the state. The specific requirements for certification are set by the state, and the state maintains a roster of those who are certified. Neither Prior nor Means are on that list. If and when Chad Daybell is charged with murder, it is possible that Prior could act as a second to Chad’s lead capital attorney. If it’s accurate that Mark Means has never tried a felony, he would not be qualified to act as a second to Lori’s lead capital attorney. 
 
Some significant things came out of the recording and this phase of the case, and I don’t want to overlook them.
 
Wood told Summer the state of Idaho is close to filing murder charges. He also told her that although the decision had not yet been made, the death penalty was on the table for both Chad and Lori. He told Summer that they had a strong case against Lori. We can question Wood’s motive in giving Summer this information, but we can’t discount its significance. For people who have expressed concern about whether either will ever be held accountable, the answer appears to be yes, they will. 
 
One of the most powerful witnesses against Chad and Lori may be Zulema Pastenes, and that’s the other significant piece of information from all of this. Zulema signed an immunity agreement in exchange for her testimony. I don’t want this to get lost in questions about the hearing. Zulema married Alex just two weeks before his death. If, as many expect, Chad and Lori try to pin everything on Alex, Zulema is the key. She may have information to refute that claim. Even if Alex was the primary actor, she might provide a lot of information about the conspiracy. Is it possible that Zulema and Alex’s marriage was more than just a marriage of convenience because the prophet told them to get married? Perhaps Zulema cares enough about Alex that she doesn’t want his memory blackened after his death. We don’t know the extent of Zulema’s involvement. While Charles and Alex both died in Arizona, Zulema may have some criminal exposure in Idaho under the conspiracy theory. That may have been the real reason Wood was in Arizona, to broker a joint immunity deal between Arizona, Idaho, and Zulema. It could be that meeting with Summer was just an afterthought because Garrett Smith also represented her. 
 
I don’t know about you, but this ghillie suit is making me sweat. As always, email me with questions and comments. 

What happened today?

A recap of the pretrial hearing and a prediction or two.

January 4, 2021

Time to talk about speedy trials and court scheduling.

Lori Vallow had a pretrial conference today, and the trial on her Madison County charges was set out until August.

For those of you who are frustrated, let me just repeat, THE WHEELS OF JUSTICE TURN SLOWLY. And that's the way you want it. In some countries, a defendant is arrested, tried, and executed within days, with no chance to investigate or mount a proper defense. In the U.S., we honor due process. We protect it for others because we will want it if we're ever accused of a crime.

Many are frustrated that more severe charges have not been filed. Again, let's remember that the prosecutor only gets ONE SHOT at a conviction. Suppose the charges are brought too quickly, or the investigation isn't thorough, and the jury finds a defendant not guilty. In that case, the prosecutor can't try that person again for the same crime, even if overwhelming new evidence of their guilt later surfaces. In his conversation with Lori's sister Summer Shiflett, Rob Wood said himself that because Chad and Lori were in custody, he had the luxury of taking his time.

When we layer on the COVID-19 pandemic, it's no wonder this case is taking extra time. In general, if a person is in custody, they must receive a trial within 60 days. If they do not, the court may be required to release them on bail. There are exceptions to the rules, and one of those exceptions is extenuating circumstances, including public health. The Idaho Supreme Court has ordered that there be no trials because of the pandemic.

Defendants can, and regularly do, waive their right to a speedy trial. They do so because they want their lawyers to have time to prepare their cases.

Here is the lineup at this point:

1/6/2021 – Hearing on disqualifying Rob Wood
1/6/2021 – Hearing on change of venue – was replaced by the hearing on Wood. Expect this to be rescheduled on 1/6/2021 for sometime soon.
6/2/2021 Pretrial conference – the judge will ask if they are ready for trial and do any last-minute motions scheduling.
7/12 -8/6 – joint trial for Chad and Lori on the felony charges out of Fremont county.
8/30/2021 – 9/3/2021 – Lori's trial on Madison county misdemeanor charges.

Here are my predictions:

• Wood will not be disqualified.

• Venue will be changed.

• None of the presently scheduled trials will happen because Wood will file Conspiracy to Commit Murder and/or murder charges for the children's deaths. All the current charges will be wrapped into that case or dismissed (they were placeholders to keep both in jail). Whether he seeks the death penalty for either or both will depend on whether one will turn on the other. If neither flip, I think he will ask for the death penalty on both. At least Chad and perhaps Lori will be charged with murder/conspiracy for Tammy's death. At least Lori and maybe Chad will be charged with conspiracy to commit murder in AZ for Charles' death.

• Both will be appointed new attorneys who are qualified to handle capital cases.

• Lori will turn on Chad to escape the death penalty.

Let's see if I'm right.

I will be following the hearing on Wednesday, January 6, 2021. The hearing is scheduled to decide the defense motion to disqualify prosecutor Rob Wood. I'll be following Awen Rees' Livestream and responding to questions as the hearing happens. You can tune in with Awen on Youtube. She does a great job of presenting information in a fair, well-reasoned way.

Did Chad Daybell really give his lawyer a house?

December 24, 2020

It’s Christmas Eve, and this case is the gift that keeps giving.

Yes, Chad Daybell really DID give John Prior a house. Most will probably find this shocking, but in the legal community, it’s not that unusual.

It’s no secret that legal fees can add up. The average divorce in the United States costs $15,000. A 2010 study done by Iowa State University put the cost of a murder trial at $17.5 million for each defendant. That cost includes every aspect of a murder case, including the investigation costs, scientific testing, court time, and the salaries and fees for all the judges, court staff, lawyers, and law enforcement. Attorney fees for defending a murder case can quickly reach a million dollars.

The information about Chad and Lori’s finances is spotty. We know that Chad received $430,000 from Tammy’s life insurance. We’ve also seen bank records that show Chad had about $180,000 in the bank when he left Hawaii. We do not know if Lori had money. We know she didn’t receive money when Charles Vallow died. Shortly before his death, Charles changed the beneficiary on his million-dollar life insurance policy from Lori to his sister, Kay Woodcock. There has been speculation that Tylee received the proceeds of her father’s life insurance. Lori’s friend from Hawaii, April Raymond, remembers Tylee telling everyone she was a rich girl after Joe’s death. We don’t know how much Tylee Ryan received from life insurance when her father died and whether Lori had access to those funds as Tylee’s parent. It’s doubtful a 17-year-old girl had a will, and by law, the assets of an unmarried child would go to their parents and siblings upon their death. We know that the only other asset of any value that Chad owned was the home he shared with Tammy and his children. We also know that neither could pledge sufficient cash and assets to secure their $1 million bails.

So how does a person with limited assets secure the services of a lawyer? The answer is, you promise the lawyer an asset in return for his services. Sometimes that means giving the lawyer a lien against your property, or in this case, giving him the house outright. If you give an attorney a lien against your property, that lien must be paid before the property can be sold or transferred.

According to Zillow, Chad’s property is worth about $300,000. But how much of that could Chad access? Idaho is a community property state. That means that at the time of her death, Tammy owned one half of the value of the property. Nearly 70 percent of people in America do not have wills. If, as is likely, Tammy died without a will, the intestate succession laws in Idaho require that her share of the property pass to her spouse. Idaho has a “Slayer Statute, “which can be found at Idaho Code § 15-2-803, which forbids a murderer from inheriting from their victim. The catch: there must be proof that the beneficiary murdered the victim. In Chad’s case, there are presently no charges and no clear proof that Chad killed Tammy. That means that Chad was the sole owner of the property when he deeded it to his attorney, John Prior.

If there is a mortgage on the property, it must be paid out of the sale proceeds if the property is sold. Mortgages are attached to the home and go with the property even if ownership changes, so Prior would have to pay the mortgage off if he sells the property. The amount left after the mortgage and any other liens are paid is called the net equity, and it’s that net equity that Chad gave Prior in place of fees. The transaction occurred in October, which means that’s when Chad was out of money. Indeed, Chad’s $180,000 that he had when he came back from Hawaii was quickly eaten up by attorney fees for both Lori and himself.

Lori would not have had any interest in Chad’s home, even though they were married. Under Idaho law, the property a spouse owned before the marriage remains their separate property. It’s only property acquired during the marriage that is subject to community property laws.

We don’t know what Chad’s agreement was with John Prior, so we can’t say what might happen when murder charges are filed. Neither John Prior nor Mark Means is certified to represent defendants in capital cases, so they would likely be appointed a state-certified defense team. It’s possible Prior could remain on the team as co-counsel. Although Prior is not certified to act as co-counsel, he probably could easily become certified with his experience. Mark Means, on the other hand, is far from meeting the qualifications.

Merry Christmas, Y’all – let’s break out the eggnog!

What did Rob Wood really say to Summer and Zulema?

What's all the buzz about
prosecutorial misconduct?

December 22, 2020

Hello Friends, there have been some interesting recent developments. First, I want to talk about the process – the motions that were filed, the rulings, and what they mean – then, I want to break down the transcript of Rob Wood’s interview with Lori Vallow’s sister, Summer Shiflett. Brace yourself for a long newsletter.

The most recent developments began when Lori’s attorney, Mark Means, filed a motion to disqualify special prosecutor, Rob Wood. Means alleged that Wood committed misconduct when he met with Lori’s sister, Summer Shiflett. He also asked for the deadline for the Motion to Dismiss to be extended to give him time to include this additional information in his motion.

In my last post, I, like Scott Reisch of the Crime Talk podcast, jumped to the conclusion that the transcript was provided to the defense by the prosecution through discovery channels. We were both wrong. According to Wood’s affidavit, he was unaware that Summer’s attorney, Garrett Smith, recorded the meeting and didn’t know about the transcript until Means filed his motion to disqualify. Garrett Smith filed an affidavit that alleges that he told Wood he was recording, even though he didn’t have to because it’s enough if one person knows they are recording in Arizona. Smith also says that he gave the recording to Means because Smith felt the recordings were proof of Wood’s professional misconduct as defined in Arizona. Let’s remember, Wood is governed by the Idaho Rules of Professional Conduct, even if he is conducting a meeting in Arizona.

After Means filed his motion, Rob Wood filed an answering affidavit and asked for an expedited hearing. The Court held a closed-door hearing the next day. Rob Wood also filed a motion for a protective order to seal any documents submitted to the Court to support the Motion to Disqualify. Mark means then filed a motion asking the judge for a temporary protective order that essentially suspended Rob Wood as the special prosecutor until there can be a full hearing on the motion.

The Court held a closed-door hearing on Friday, December 18, 2020. The judge issued a written order. Here’s what he said:

• Mark Means’ motion for a protective order suspending Rob Wood was DENIED.

• Means’ motion for additional time to file the motion to dismiss was GRANTED because everyone involved agreed.

• The judge didn’t rule on the Motion to Disqualify. Instead, he canceled the hearing on the change of venue motion scheduled for January 6, 2020, and put the Motion to Disqualify in its place.

• The judge ruled that there was no need to have the hearing in-person and that it would be held by Zoom.

• The judge continued the order to seal all the pleadings regarding the Motion to Disqualify.

• Because the cases are joined, and both attorneys filed motions to disqualify Rob Wood, both defendants will participate in the January 6, 2020 hearing. Both special prosecutor Rob Wood and Chad Daybell’s attorney, John Prior, asked for that hearing to be closed. Lori Vallow’s attorney, Mark Means, objected. The judge took it under advisement – which means he’s thinking about it. He gave both attorneys leave to submit additional arguments before December 30, 2020. After that, he will make a decision.

• A new date will have to be set on the change of venue motion. That will undoubtedly delay the trial dates.

Now to the transcript.

The Court ordered “the December 16, 2020 Affidavit be SEALED, and that any further proposed affidavits or exhibits in support of the joint Motions to Disqualify be SEALED until further order of this Court. In addition, the transcript of the December 15, Status Conference is SEALED until further order of this Court.” The Court’s order is dated December 17, 2020.

I.C.A.R, 32(i)(4) says “When a record is sealed under this rule, it shall not be subject to examination, inspection or copying by the public. When the Court issues an order sealing or redacting records, the Court shall also inform the Clerk of the District Court of which specific files, documents and case management system records are to be sealed or redacted. When the Court issues an order sealing or redacting records for purposes of public disclosure, the original records in the court file shall not be altered in any fashion.”

There is no guidance in either the Court’s order or the rules about what happens when the horse is already out of the barn. In other words, this affidavit and transcript were already out in the public purview before the Court issued the order. Some media outlets have taken their posts about the transcript down out of an abundance of caution; some have not.

Below I’ve added comments to my copy of the transcript. By the way, it’s evident a professional transcriptionist didn’t create this.
Summer Shiflet Interview 10/1/2020
PROSECUTOR ROBERT WOOD: on of the ones kind of running down the kids’ case because they were last seen in Rexburg. And um or were last living in Rexburg. Tylee was last seen in yellow Stone, but um

Summer: Right

PROSECUTOR ROBERT WOOD: and so, we were the ones that knew everything about the case. So, they assigned us on that. Um, I’m just going to tell you right now we, we are going to be filling conspiracy to commit murder charges for both chad and Lori
Note that this is Rob Wood speaking, not the Chandler PD. He is talking about conspiracy to commit murder charges in Idaho, not Arizona. He’s talking about the murder of the children, not about the murder of Charles Vallow.

Garrett: ok

PROSECUTOR ROBERT WOOD: and we’re not shy about that. We’ve told both attorneys. His attorney keeps pretending like I’ve never said that. What? But we are, we have to. But I kind of want to give you like a little bit of background of where we are. And. Kinda like our kind of theory of how this ended up where it was. we know that this is not the same Lori everyone else knew. What’s so strange to me is. everyone we talked to. everyone we talked to who knew Lori before this, you she was primary president, she made quilts for these kids, she, she made everything fun, everyone loved her. She loved everyone.

It doesn’t surprise me that Rob Wood has been transparent with both attorneys about the state’s intentions. Telling each of them encourages them to discuss it with their clients and consider how to mitigate the damage. I can’t imagine why John Prior would pretend he had not heard that. He has to know what’s on the table. Here is where we get a glimpse of Wood’s theory and the unfolding of the case. Wood believes Chad Daybell manipulated Lori into her involvement. For an analysis of both Chad and Lori’s psychological profiles, I encourage you to listen to Hidden A True Crime Podcast. Forensic psychologist Dr. John Matthias and his wife, journalist Lauren Matthias analyze the case and the players. Here is a link to the episode Beyond the Veil: When Chad Met Lori and The Dream of Immortality. https://www.podbean.com/ew/pb-mxbhv-f2ca8a Dr. Matthias is insightful, and his analysis is easy to understand.

Summer: great mom

PROSECUTOR ROBERT WOOD: great mother, that’s what everyone says. And and you know. So, one thing I’m going to kind of ask you to consider is maybe, something happened. I don’t know what. I don’t know if it was psychological, I I don’t know. I don’t know if we’ll ever know. But something happened and I think Colby the way he said it to me I think is kind of, the person who is in that jail, he said is not my mom, its someone else.

Wood is fleshing out his theory. The person in jail isn’t the Lori everyone knew and loved. Chad manipulated her.

Summer: yeah

PROSECUTOR ROBERT WOOD: on the flip side of that is, I shouldn’t say the flip side but, I want to be clear. I’m no going to pull any punches on any defendant in this case. Right? I’ve got my job to do and

Summer: absolutely

PROSECUTOR ROBERT WOOD: but we also want truth and the whole truth and the context of it. And Chad Daybell, is did you, did you ever meet chad?
Summer: so, I met him once at a preparing people. I went to one preparing people thing

PROSECUTOR ROBERT WOOD: ok

Summer: and with my mom and husband and I went to support Lori and she wanted to support Mel, so went and met chad after he talked for like 90 seconds maybe. If that. And then he called me when Lori got transferred to the Idaho jail, he texted me and said Lori wanted to talk to me. And I was like yeah and then the second I hung up with her, he called me to ask me about bail.

Lori and Chad both contacted Lori’s sister to discuss bail. I assume that means they asked whether the family could help them raise money (or put up assets) for bail.

PROSECUTOR ROBERT WOOD: mm

Summer: for Lori, so I’ve talked to him maybe 3 times briefly on the phone. Never a long extended conversation. But the first thing he said to me when he called me was that he said that Lori hasn’t told me very much about the kids so there’s not really much I can tell you about it.
PROSECUTOR ROBERT WOOD: ok, of course he said that

Of course, he did. Let’s remember, he was talking to Summer after Lori had been returned to Idaho from Hawaii and knowing full well that the children’s remains were buried in his backyard.

Summer: mhmm

PROSECUTOR ROBERT WOOD: well. Welcome to Chad Daybell. so, what I want
Summer: I have my own opinions him don’t get me wrong

PROSECUTOR ROBERT WOOD: he’s, I bet you do. He is highly manipulative.

Summer: yes, he is

PROSECUTOR ROBERT WOOD: I’m not going to say he’s highly intelligent, but you don’t have to be highly intelligent to be highly manipulative.

Summer: absolutely

Rob Wood has communicated his theory of the case and cemented Summer’s buy-in. She agrees that Chad is the mastermind.

PROSECUTOR ROBERT WOOD: he is extremely manipulative, and you know your sister manipulated him in some ways too but the, the context for everything that happened came from Chad.

Summer: absolutely

Wood isn’t going to let Lori off scot-free, though. She was manipulative too. Once she bought into Chad’s doctrine, she did so with a laser focus. She became to mover and shaker. Without Lori, Chad’s beliefs would have remained in the unrealized realm of his books.

PROSECUTOR ROBERT WOOD: And uh, unfortunately we do. We have enough evidence to prosecute him, we do. But I, the case against your sister is stronger, um. But I just I kind of just want to give you like just that background. That’s the kind of the context that we see this guy. Came in here. And you know not making excuses for anyone but kind of blew up this situation. And he did not care, who died

Summer: mhmm

PROSECUTOR ROBERT WOOD: who got hurt. He did not care at all. And the other thing I can tell you is, your sister truly believes that everything she’s done, has been done in righteousness.

Summer: I know

PROSECUTOR ROBERT WOOD: I know I’m kind of using L.D.S. speak
Garrett: yea

An interesting insight here; s we have suspected all along, Lori believes that everything she has done was justified by her belief in Chad’s brand of Mormonism.

Summer: 100% that’s my interpretation also, I think she 100% believes

PROSECUTOR ROBERT WOOD: she believes it.
Summer: mhmm

PROSECUTOR ROBERT WOOD: every once in a while, you’ll see kind of a little crack, in like a jail phone call. But,

Summer: well, you’ve heard our conversations too, you know that I, I get that she’s not fully aware of what she’s really done.

PROSECUTOR ROBERT WOOD: right, yeah

Summer: I don’t think she is

PROSECUTOR ROBERT WOOD: yeah, I mean, I’m going to say this. I think she knows what she’s done.

Summer: She knew enough to lie to us about it

This is an interesting exchange. Wood thinks there are chinks in Lori’s faith armor and that some light may be getting in. He doesn’t let Summer get away with thinking that Lori doesn’t understand what she’s done, and right away, Summer concludes that Lori understood what she had done was wrong because she lied to cover it up. Lori lied to her family. Everything they knew about her was that she was a good person and a devoted mother. They believed and repeated Lori’s lies because what she told them reinforced what they thought they already knew about her: she was a loving mother who would never hurt her children.

PROSECUTOR ROBERT WOOD: right, yeah but she the context under which it was done was this. Religious. Just these ideas were out there, I can say this cause I am LDS, had no basis in the LDS faith. You know just, and you said it in her phone calls to her. So, anyway that’s kind of where we’re at, and we, you know, again were just really grateful for you coming in. And it’s gonna be hard, to talk about these things

Summer: oh yeah

Rob Wood has been careful not to discuss his membership in the LDS church, and rightly so. It’s no surprise he’s a church member in a community where 96% percent of the population are church members. Wood has long ago come to terms with prosecuting church members. His church membership is probably an advantage since he understands church doctrine and how it played into Chad’s beliefs. He also says that Summer has said the same in her jail calls with Lori.

PROSECUTOR ROBERT WOOD: we know that, and they’re gonna be, you know you’re not being a person of interest

Garrett: yeah, we’ve had that conversation so

Summer is not a person of interest, so there is no suggestion of immunity. It’s possible Wood’s sole purpose in talking to Summer is to give Summer information that might encourage her to Lori to talk.

PROSECUTOR ROBERT WOOD: but part of what we need to do is understand. Well, when you have a case like this it’s not like just like a meth case. I probably had meth, and nobody cares who you are

Summer: no, there’s no drugs, no alcohol, it’s just

PROSECUTOR ROBERT WOOD: but this case is a, we need to understand the context of who these people are. And so that’s a lot of what they’re going to be asking about.

Summer: ok, I’ll do my best, I mean

I had to read over this exchange more than once to understand what was being said. Wood says, “it’s not like a meth case.” His point is that when you prosecute a meth case, the defendant's character and psychological makeup aren’t of interest. The only question is whether you possessed methamphetamine. In this case, who the defendants are and what they believe is very important. Summer jumps to point out that there are no drugs or alcohol. They seem to be talking at cross purposes, and that makes the exchange a little confusing.

PROSECUTOR ROBERT WOOD: Like I said it won’t be easy, I know it’s going to be a hard, be a hard interview

Summer: I was wondering if you would be willing to tell if you’re able to tell me if there’s any progress in what you know about Tylee and her death, but is there any progress in her otopy where you understand better?

PROSECUTOR ROBERT WOOD: all I can tell well.

Summer: I mean do you have a cause yet or is it close to one?

PROSECUTOR ROBERT WOOD: She is at the FBI’s state of the art. Crime lab. Unfortunately, there’s a lot of diseased bodies there, there. That they’re going through.

Summer: oh, I’m sure

Here is one of the places where I wonder if the transcription is accurate. Wood is e precise in his words, and I wonder at his use of “diseased.” More likely, he said, “deceased.” The interesting takeaway is that Tylee’s remains are being processed by the FBI and not the state medical examiner or crime lab.

PROSECUTOR ROBERT WOOD: And so, we’re not. We don’t know really anymore yet. We may never know. Due to the, the destruction of that body. And yeah, we hope we’ll find out, we may not. But obviously, we know it’s her. There was soft tissue that was still preserved enough to do DNA tests

Summer: yeah, the way you guys found them, like we wouldn’t have ever known.

Garrett: ya

Summer: and I would have never dreamed that she would ever hurt them so

PROSECUTOR ROBERT WOOD: you know what, and everyone says that.

Summer: ya

PROSECUTOR ROBERT WOOD: that’s what everyone says. Everyone says that. I never would have, so. It is, it’s a tragic thing.

Summer: it really is yeah

PROSECUTOR ROBERT WOOD: but I again I just want you to know how grateful we are, I know you know you don’t have to talk to us. And so, we’re just grateful that you’re willing to and helping us that way. and it’s I’m sure, kind of difficult knowing that they’re asking for information that’s going to help them in the case against your sister. But but I guess the thing I want you to know is our whole goal is just justice for these kids.

Summer: Yeah

PROSECUTOR ROBERT WOOD: and we mean our hope. Our hope is it comes to it. Your sisters actually made some overtures she might be willing to talk to us.

Again, I think there are errors in the transcription that make this almost unintelligible. It seems Wood is saying he hopes Lori will come to understand it’s in her best interest to tell her side of the story. The important part is that Lori made some overtures about being willing to talk. Here may be the most significant reason for Wood talking with Summer. From this conversation, we know that Summer talks with Lori regularly. Wood would be happy if, given the information he’s given Summer, she decides to encourage Lori to talk.

Summer: I hope she does. I pray for that all the time
PROSECUTOR ROBERT WOOD: we hope she does, she actually was talking about with Chad about talking with us about before we found the bodies. Just a few days before. And he talked her out of it.

Summer: mm

PROSECUTOR ROBERT WOOD: which is too bad. It would have been better for her to tell us

Garrett: yeah sure, it would have been

Summer: I agree

PROSECUTOR ROBERT WOOD: I mean it, we were actually just finishing up our warrant on the date she said that. We were just getting ready to go out that day. That would have been even better, and he talked her out of it.

Interesting. As the prosecution was on the verge of digging up Chad’s backyard, Lori contemplated talking to the police, but Chad talked her out of it. That gives new context to the call on June 9, 2020, between them when the bodies were found. Here is my transcript of that call.

Lori: Hi, Babe.
Chad: Hello.
Lori: Are you OK? We now know that Lori had a conversation with him about talking to the police just the day before. I also still think it’s likely Lori knew something was going on.
Chad: Well, They’re searching the **** property. Is it possible Chad thought they were searching because Lori told them something?
Lori: The house right now?
Chad: Yeah yeah for more evidence.**** so, Mark means will be talking to you.
Lori: OK, what? Are they in the house? They know they are being recorded, but Lori is trying to determine whether they are looking inside or outside, where the bodies are buried.
Chad: No, they’re out on the property.
Lori: Are they seizing stuff… Again? Again, she knows she’s being recorded but is trying to find out if they’ve discovered anything.
Chad: They’re searching.
Lori: Mmm.
Chad: There’s a search warrant and so …****to take evidence with the kids
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.
Lori: ‘Kay.
Chad: Yeah, I don’t really…
Lori: What do you want me to do…?
Chad: What?
Lori: …pray?
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.
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.
Lori: OK
Chad: I love you, and we’ll talk soon
Lori: OK baby, Iove you
Chad: Love you, bye.

Summer: ya

PROSECUTOR ROBERT WOOD: and the night before she says to him again like, he what do you think about, you know, and he uses this kind of, I call it, spiritual abuse. Spiritual manipulation.

Summer: ya

I think this is another typo in the sloppy transcript. I think it should read, “and the night before, she says to him again, “Hey, what do you think,” you know, and he uses this kind of, I call it, spiritual abuse…spiritual manipulation.

PROSECUTOR ROBERT WOOD: we’ve all seen that guy. In the LDS religion whose wife has to obey him because he the priesthood type thing. And thats not what it says but its very, it’s the same type of thing.

Garrett: mhm

People don’t talk in straight lines, the way they do when they write. If you listen to a trial transcript, you’d be surprised. Even with many judge's admonitions, people still use body language and gestures and leave sentences unfinished. I can tell you from experience, reading a transcript of yourself is excruciating. You think you are very concise and organized until you read what you said. Add in a very sloppy transcript, and some things are nearly unintelligible in this conversation. Wood is saying that he understands but doesn’t necessarily agree with the church’s teachings about women's role. He recognizes the lifelong indoctrination that women receive from the church that encourages them to be subservient, to obey, and, as the church calls it, “keep sweet.” Indeed, the church has started to loosen its stance on women’s roles, but to be clear, women cannot hold leadership positions over men and cannot be prophets. In LDS doctrine, men ‘hold the priesthood,” and women do not. This priesthood recognizes men’s superior position in God’s hierarchy and their dominance over women. (Please note I not a member of the church, and my opinions on the subject are my own.)

PROSECUTOR ROBERT WOOD: well, I’m the visionary guy, so, you know. So anyway, again I just wanted to meet with you real quick and introduce myself and Mackenzie, shes

I have no idea what “I’m the visionary guy” means unless Wood is continuing the thought from the last comment about Chad, suggesting that it’s something Chad would say.

Summer: I would have obviously seen you

PROSECUTOR ROBERT WOOD: yes, ya

Summer: but I don’t take any joy in doing anything that’s going to harm her. I don’t take joy in her spending her life in prison. There’s nothing,

PROSECUTOR ROBERT WOOD: sure

Summer: it hurts to think about her being in there

PROSECUTOR ROBERT WOOD: there’s nothing good about case like this Summer: there’s nothing good about it.

PROSECUTOR ROBERT WOOD: and you know what, even if you win a case. Like Garretts been in Court, like there’s cases, you know as a prosecutor like you take to trial and you win and you’re like, even at the end you’re like, well nothing good has, it’s all bad

Garrett: ya

Summer: it’s all bad

PROSECUTOR ROBERT WOOD: I said this to someone the other day. Who knows your sister is our goal is. sometimes you get murder and all you have is that murder and you just have to run out and charge it and then you kind of put it put it together. We were able to put them in jail with a high bail on these lower charges and put together a case. Now our goal is to have such a strong case that when she has competent counsel, I don’t know if you know this, her attorney, has never handled a felony before

Here we get confirmation that, as we suspected, Wood and the state are using the current charges to hold Lori and Chad while they put their case together. Here is where I think Mark Means thinks Wood committed some sort of misconduct. Wood says their goal is to have such a strong case that a competent and experienced attorney will convince Lori that it would be better for her to give Chad up. If, as Wood suggests later, the state asks for the death penalty, Lori will have to have an attorney certified by Idaho to represent defendants in capital cases, and Mark Means is not. Wood is saying that if Lori had an experienced criminal attorney, this case might have gone differently.

Summer: mhmm

PROSECUTOR ROBERT WOOD: he’s never, never done any meaningful criminal work at all. And he doesn’t know what he’s doing. He’s a nice guy.

Summer: yeah, I met him

PROSECUTOR ROBERT WOOD: other than when he’s lying about me, but he a he’s he doesn’t know what he’s doing and once we file further charges, she will be appointed counsel who will know what they’re doing. And our goal is to, put together such a case, that they’re smart enough to say, uh, it’s gonna be better to talk.

Summer: mhmm

PROSECUTOR ROBERT WOOD: you know, and I think we are. Um and make it easier for everyone. Make it easier especially you know for Colby I, if there’s someone who’s lost everything, its him. So, anyway I again I mainly just wanted to thank you for coming in and being with us

Summer: mhm. It’s weird to be on the prosecution and defense’s side at the same time because I love everybody.

PROSECUTOR ROBERT WOOD: well, you know, it’s a system. I did defense work for almost. I did it for 5 years. And I, I actually really enjoyed it, I thought it was kind of fun.

Garrett: I like defending

PROSECUTOR ROBERT WOOD: and you gave me that perspective right away. Just cause someone’s committed a crime doesn’t mean they’re a horrible person.

Summer: so, I’m so torn with all the its such a conflicting feeling to know that this persons been good her whole life and then has made this error in judgement and got sucked into this vortex of this man.

PROSECUTOR ROBERT WOOD: mhm

Summer: and I feel for her, I just have so much compassion towards her because I know that’s not what she would have ever done on her own.

PROSECUTOR ROBERT WOOD: right

Summer: and so, she has to pay the price for this, forever. And I hate that for her. So, I’m very conflicted. But I was going to ask you on the concealment or not the concealment but on the conspiracy to commit murder, what’s the weight of that in terms of judgement, is that a death penalty kind of thing?

PROSECUTOR ROBERT WOOD: it is death penalty case in Idaho.

Can’t you just feel Summer’s stomach clench?

Summer: are you planning to ask that for them or do you not want to

PROSECUTOR ROBERT WOOD: we sure hope we don’t. A lot of that will depend on her

Another statement that Summer might pass on to Lori. Whether they seek the death penalty depends on what Lori is willing to tell them.

Summer: ok

PROSECUTOR ROBERT WOOD: and its that’s not a decision or, that a decision we don’t make actually until after a case is filed.

Summer: ok

PROSECUTOR ROBERT WOOD: and we have a couple months. Cause a lot of times when you file it. It’s out there on the table. Oftentimes that’s a big motivator for people to get together and talk and try and resolve it. And that’s what we hope happens. I have no desire to do that. Plus, once you do that it’s endless appeals,

Garrett: ya

PROSECUTOR ROBERT WOOD: I don’t think the other family wants it at all because it

Garrett: prologs it

PROSECUTOR ROBERT WOOD: the case just never resolves.

Garrett: ya

PROSECUTOR ROBERT WOOD: it just kind of, well you appeal this, then you appeal that, and it can go on forever, so we’re sure hoping not. To go down that rout, now I’m not saying I won’t, if we look at trial I might. But we haven’t made up our minds on that.

Summer: ok

PROSECUTOR ROBERT WOOD: we really don’t want to, can tell you that from the bottom of my heart

Summer: knowing her if she comes out of this, state and realizes the weight of it, she may prefer that honestly. I think about that all the time with her just because of what she’s been through. Just, I just can’t

Is she saying Lori would rather die?

PROSECUTOR ROBERT WOOD: I know you know a lot more about Lori than I do. But we have learned a lot about Lori and there’s, ya I mean there’s been some things happen in her life I think that play into this.

Summer: oh definitely.

PROSECUTOR ROBERT WOOD: and um, so but we, like I said, I talk of having a one way a little bit, but I want you to know that I have no desire to

Summer: yea I think you see it for what it is

PROSECUTOR ROBERT WOOD: yeah, it’s not a

Summer: I don’t know how you couldn’t with interviewing everybody

PROSECUTOR ROBERT WOOD: well, its, yeah. I mean I’ll tell you. I was there in Hawaii when that the order to produce the children was served. And I was there when they served the search warrants for when the news showed up, which I was super annoyed by that. I never want, it’s just blows everything up right. At that moment when we saw them. Cause your sister can put on a brave face.

Summer; oh yeah

PROSECUTOR ROBERT WOOD: we were like oh does this guy know what he’s gotten into?

Summer: mhm


PROSECUTOR ROBERT WOOD: and cause she was just very stoic, very like I’m not going to say an word. He looked like he was about to pee his pants. Cause he’s actually, a wimpy person.

Summer: ya.

PROSECUTOR ROBERT WOOD: he wimpy?

PROSECUTOR ROBERT WOOD: ya

Summer: ya

PROSECUTOR ROBERT WOOD: he’s great if he has someone else to do something for him, but he himself is a wimpy person. And at the time they were like this is all her. Like how is she manipulating this guy? But then once we dug into the, that was the beginning as we’re like starting to get fact’s we got more fact’s like oh. Again, I’m not gonna pull punches, if I have to go to trial. But these ideas came from him.

Wood is saying Chad was the mastermind, but Lori was the do-er. He’s good at getting people to do his dirty work. He’s also saying, if there is a trial, Lori isn’t going to look any better than Chad.

Summer; oh yeah

PROSECUTOR ROBERT WOOD: and she had, she had some different views on theology and standard LDS by that point. But he really knew how to manipulate that and turn it into something even more.

Summer: his influence was there before she met him

PROSECUTOR ROBERT WOOD: yes, she was reading his books for

Summer: wasn’t just his books, so it was like the julie Rowe podcasts

PROSECUTOR ROBERT WOOD: oh yes

Summer: he gave Julie Rowe a lot of her ideas. And so, when she would listen to Julie Rowe, she was getting to Chads ideas too by listening to this

This is interesting. Summer says Lori was influenced by Chad even before she met him because she was reading his books and that Chad’s ideas were the basis of Julie Rowe’s work. Summer says that Lori was indoctrinated into Chad’s beliefs long before meeting him through Julie Rowe.

PROSECUTOR ROBERT WOOD: yeah, oh yeah Julie Rowe, she’s interesting

Summer: I’ve heard some of her podcasts, when she started talking about herself in third person all the time, I’m like, hmm

PROSECUTOR ROBERT WOOD: yeah, I’ve listened to her podcasts as well and interesting stuff.

Garrett: Garrett doesn’t like when people talk about themselves in the third person

PROSECUTOR ROBERT WOOD: well and we’ll let you get going and we can start on this

Garrett: ok

Summer: I was going to see if you guys wanted some wrist bands to take back with you these are wrist bands, I had made up for Tylee and JJ

PROSECUTOR ROBERT WOOD: oh, I would

Garrett: take as many as you want

Summer: give them to everybody

PROSECUTOR ROBERT WOOD: I’ll tell you what

Summer: if you want them, we just

PROSECUTOR ROBERT WOOD: ya

Summer: we did it where

PROSECUTOR ROBERT WOOD: they’ve got a couple of wrist bands for let’s see there’s ron, ray,

Summer: you could just take the whole bag with you that’s fine, just take them

PROSECUTOR ROBERT WOOD: oh, do you have more of these?

Summer: oh, I have plenty more

PROSECUTOR ROBERT WOOD; oh okay

Garrett: you can’t order these in a hundred so

Summer: I many have hundreds for, I started off just doing them for Tylee and JJ’s friends and teachers,
we wear ours all the time, so just keeps them close

PROSECUTOR ROBERT WOOD: thank you

Summer: ya

PROSECUTOR ROBERT WOOD: sorry
Summer: its fine

Garrett: it’s an emotional thing

PROSECUTOR ROBERT WOOD: you know it’s interesting how you can in Rexburg those kids weren’t
there very long, but there our kids

Garrett: ya

Summer: anytime there’s kids involved. It’s not okay.

PROSECUTOR ROBERT WOOD: so, thank you

Garrett: there’s not one of us that doesn’t want to protect the kids

PROSECUTOR ROBERT WOOD: right

Garrett: for sure

PROSECUTOR ROBERT WOOD: alright well, I’ll call or text. If you need, I don’t know how long this, would you mind if we sit down and talk to you, any breaks you need, any anything

Garrett: I’ve run over it, you bet. I told her if she has questions, she can ask me or use the bathroom, or we’ll shut it down and

Summer: thank you

Garrett: do all that so

Summer: nice to meet you
So what do I think about this?

I think it’s hard to get misconduct or witness tampering out of what’s contained in the transcript. To be sure, Garrett’s affidavit makes clear the transcript is an excerpt of a more extended conversation and that he gave it directly to Mark Means.

Did Wood give Summer information he hoped would get back to Lori? Absolutely. I suspect Wood is frustrated with what Mark Means is not telling his client. Is that witness tampering or coercion? Absolutely not. At no time did Wood discuss with Summer what she might say if she were a witness for either side or try to change her mind about what she knows.

As for making Wood a witness in the case or opening up the possibility of civil litigation, I can’t see it with what we know. Nothing in the transcript could be construed as investigative. It was, as Wood suggests, an introductory chat before Summer talked to investigators. While it’s clear Wood said things that he would be happy to have Summer discuss with Lori, he didn’t ask Summer to intervene and get Lori to talk. He didn’t tell Summer what to say to investigators or suggest any consequence if she didn’t tell investigators what he wanted her to. Conversely, it doesn’t appear that Summer told Wood anything material that would have made the conversation investigatory.

Interestingly, we have no information about the recording of Zulema Pastenes’ conversation with Rob Wood. I think this is because that conversation was much more significant and substantive. I believe Zulema was the real reason Wood went to Arizona in the middle of a pandemic. She was part of the inner circle and probably had some involvement in the death of Lori’s brother, Alex Cox. Zulema had been married to Alex for about two weeks when Alex died. His death, while initially ruled to be from natural causes, is still under investigation. I think Rob Wood was there to offer Zulema immunity from prosecution in return for her testimony against Lori and Chad. I think Zulema’s portion of the interviews was not released because immunity agreements are extremely sensitive.

What did we learn from the transcript? We learned that there is ample evidence to charge both Lori and Chad with conspiracy to commit murder and ask for the death penalty and that those charges are coming. We learned that Rob Wood would like to keep the death penalty off the table, but it will require Lori’s cooperation. We learned that the state’s theory of the case is that Chad is the mastermind and Lori, the follower, but Lori was the do-er in the relationship. That certainly mirrors the observations of Dr. John Matthias in his podcast. We learned from Summer that Lori was obsessed with Chad long before she met him. Lori followed Julie Rowe, whose ideas were derived from Chad, and Lori read all of Chad’s books. Lori was utterly enamored with Chad long before she met him. Chad had the ideas, but Lori wanted action. After Chad and Lori became involved, Lori likely convinced Alex, Zulema, Melanie Gibb, and Melani Pawlowski to help her act on Chad’s beliefs and visions. Lori started the podcasts and began what everyone calls “gathering.” It seems that without Lori, Chad may have done nothing but continue to sit in the BYU library and write his strange little stories. Lori set things in motion; her coming into Chad’s life was the perfect storm of colliding sociopaths.

Let’s see how good my crystal ball is. I predict:

• Rob Wood will not be disqualified.

• Both Lori and Chad will be charged with conspiracy to murder the children, and Wood will seek the death penalty for both.

• Mark Means will be replaced by someone qualified in capital cases. Means may face sanctions from the Idaho Bar.

• Chad will be charged with Tammy’s murder.

• The current charges will never be litigated; they will either be wrapped into or superseded by murder charges.

• The Court will grant the change of venue motion, and the trials, if they happen, will be moved to Boise.

• Lori will turn on Chad in return for Rob Wood taking the death penalty off the table for her. If Lori does turn, Chad’s case will go to trial because death penalty cases always do, and Chad’s trial won’t happen until early 2022.

• Lori will be charged with conspiracy to murder in Arizona for Charles Vallow’s death.

• No charges will be filed in the deaths of Alex Cox and Joseph Ryan.

Finally, thank you for your continued interest and support; it truly means the world to me. Stay safe, wear a mask and let’s reconvene in the new year, happy to see 2020 in the rearview mirror and as hopeful and optimistic as ever.

Did Rob Wood commit prosecutorial misconduct?

Why did Rob Wood meet with Summer Shiflett and Zulema Pastenes?

December 16, 2020

Hello, my friends. I want to start with some thoughts on Christmas; I hope you get a blessing from it.

I am unpacking Christmas, setting out cherished decorations, deciding where to put each piece, and thinking about the hands that packed these things away after last season. Those hands are not the same as these hands.

Those hands were younger, less prone to melancholy, but also less accomplished. Those hands had not yet absorbed the reality of 300,000 deaths, the missed holidays, the zoom family gatherings, and the inchoate longing that comes with quarantine. Those hands had not flown and fluttered over the keyboard, producing words that would shape themselves into a first book deal. Those hands didn’t have a literary agent. Those hands had not yet found the shape of a life where I am not a lawyer. Those hands had not yet held the books I would read while I sat in the sun and hadn’t yet picked the glowing sweet oranges of my first Arizona winter.

That those younger hands lovingly wrapped each piece and set it in a box for the future was an act of faith. Faith that Christmas would come and I would still be here, still honoring my family’s traditions, still remembering each treasured memory. Faith that our country would endure, that our institutions would endure, that our better angels would prevail. Now, as this year’s hands unwrap each piece, dust each pink-cheeked Santa, and adjust each reindeer, it feels a little like meditation and a little like desperation.

In January, these older (and perhaps wiser?) hands will lovingly wrap each piece, taking on faith that next year’s hands will be there to unwrap them, all the time remembering the German Christmas boutique or the Key West seaside trinket shop where they were bought; recalling the three-year-old hands that made them. These older hands will once again pack them away, reminded by this year, this terrible and wonderful year, that there is only this now - this present.

Now, let’s dive into the most recent developments in the Lori Vallow/Chad Daybell case. On December 15, 2020, Lori’s attorney, Mark Means, filed a motion to disqualify Special Prosecutor Rob Wood from the case, alleging that he tampered with witnesses. To be clear, I don’t have any inside knowledge of the case. I am basing my observations on my experience as a criminal attorney.

Why would Mark Means file such a motion, and did Rob Wood do anything wrong? Let’s look at what the motions allege. It appears that in October 2020, Rob Wood traveled to Arizona, where he met with Lori’s sister, Summer Shiflett, Alex Cox’s wife, Zulema Pastenes, and the attorney that represents them both, Garrett Smith. According to Wood, the meeting occurred at the Chandler, AZ police department. Prosecutors who meet with potential witnesses must be cautious and conduct the meeting so that they don’t become potential witnesses. Typically, law enforcement officers conduct interviews and investigations, but sometimes lawyers need to hear things directly from or communicate information directly to a witness. In that case, law enforcement members should be present so that they can later be called as witnesses to the interview, if necessary. Additionally, in these cases, both women had their attorney present. According to Rob Wood’s affidavit, he did not participate in the interviews with law enforcement.

One reason Rob Wood would have a meeting with a witness could be that he offered some form of immunity in return for their truthful testimony. I’ve participated in these sorts of meetings before, and I know they aren’t uncommon. Only Rob Wood and the others present in the meeting know for sure, but Means’ forceful motion to disqualify Wood makes me wonder. Rob Wood would not have recorded the interview because law enforcement members were there to capture and memorialize their interview. It was Summer and Zulema’s attorney who recorded their meetings with Wood, which suggests that he wanted to assure that whatever was discussed was set in stone. It’s the kind of care one takes when something important is on the line. This situation usually arises when an attorney approaches the prosecutor and indicates that their client has information useful to the prosecution. In this case, Wood indicated that Zulema’s attorney reached out to him.

Once that contact is made, a rather delicate dance begins. The defense attorney usually gives the prosecutor enough to prove the witness’s information is important and truthful. Then the meeting takes place. In this case, the information was interesting enough for Rob Wood to travel from Idaho to Arizona to discuss it. The prosecutor is there to determine whether the information the witness is offering is important enough to offer them some benefit in return. The prosecution could offer the witness partial or full immunity from future charges, a dismissal or reduction of current charges, or a lesser sentence in a pending case. As Wood reports in his response to Means’ motion, “The meetings I attended with Mr. Smith, Ms. Shiflett and Ms. Pastenas (sic) came about as a result of Ms. Pastenas (sic) reaching out to my office and law enforcement through her attorney, Mr. Smith.” It’s typical for the prosecutor to meet with the witness to explain that whether he can offer anything for her testimony will depend on its value to the case and her truthfulness. Law enforcement then takes the statement while the prosecutor is not present. Law enforcement reports their findings back to the prosecutor, who then evaluates the witness statements to determine if they warrant offering immunity.

The situation I’ve outlined is not witness tampering. It’s legal, permissible under the Rules of Professional Conduct, and it happens all the time. Wood’s meeting with Schifflette and Pastenes just occurred in October, so it’s not surprising that the recordings were just provided to the defense. Let’s assume that the recordings reveal some vital information and that Rob Wood has offered them immunity in return for their testimony. How does the defense challenge that action? Announcing to the world that two witnesses have been offered immunity in return for their testimony isn’t going to help because the public will know if Rob Wood offered them immunity, their testimony must be a potential bombshell. Mark Means must reason that attacking the prosecutor is preferable because if he could prove that the testimony was the product of coerced or tampered with evidence, a judge could exclude the evidence. I’ve said before that Mark Means’ tactics are odd, but he’s not stupid.

But now Means has another problem. He had to support his motion by submitting his proof to the judge along with the motion. That proof is either the recordings or transcripts of them. That’s evidence he does not want circulating to the media or the public, so he’s filed the motion to seal those pleadings.

The timing of Means’ questionable Tweets also makes me wonder. His Tweet “As I prepare the defense for Lori (vallow) Daybell... I am learning that persons like Melanie Gibbs and her boyfriend David Warwick appear to have been eagerly “involved” in more than they let on... if you know something... Say something!” and his “The defense lacks the resources of the prosecution (State of Idaho, Attorney General of Idaho, FBI, chandler police, Madison county sheriff department, Fremont county sheriff department, Rexburg police, etc) We need the persons of knowledge to come forward!” were both posted on October 21, 2020. Both could coincide with Means learning that Rob Wood had recently traveled to Arizona to meet with Zulema and Summer.

I don’t believe that what Rob Wood did was prosecutorial misconduct or witness tampering. He’s a smart and experienced career prosecutor who is well aware of the bounds of ethical practice. Remember, Lori and Chad’s current charges are only the tip of the iceberg, and their defense attorneys’ job is to toss everything at the wall in hopes that something will stick. When you can’t argue the facts or the law, you argue the procedure’s constitutional fairness and the process and preserve every argument, even the ones that appear ridiculous, for appeal.

I am thankful for all of you who have made writing this newsletter so interesting and gratifying. As we enter the 2020 holiday season, I wish you joy, peace, and a hopeful and fresh New Year. Please take care of yourselves and those you love, take time to remember those less fortunate and pray for those who have lost so much this year. Remember with gratitude all those who serve in the military or as first responders and all those on the medical front lines.

Things That Spark Gratitude

A few gratitudes and a little case news

November 20, 2020

Hello Friends.

Today’s newsletter is a little about the Vallow/Daybell case, a lot about gratitude.

In America, we are poised to celebrate our Thanksgiving holiday. It’s a holiday where we are all encouraged to consider all the things we have to be grateful for, and it always turns my heart to those I’ve celebrated with in the past, who are no longer with us. Experts tell us that gratitude can actually rewire our brains, and diminish anxiety, and depression, but it might be hard to focus on gratitude during this pandemic year, so I thought I would start the conversation.

I am grateful for all of you. I’m grateful that I have been welcomed into this community of smart, curious people who have come to trust my expertise. I’m grateful for all the people who have taken the time to email me with questions and comments; your participation makes me better. I’m grateful for people close to the case who have trusted me with their confidence.

I’m grateful for my family and my friends and thankful that COVID-19’s impact on our family has been minimal. Those who have had a brush with it have fully recovered, and most have remained virus-free; we’ve all been able to work from home and have not experienced the financial hardship that many have. I am aware that 250,000 families will be missing someone at their table this Thanksgiving, and I encourage us all to hold them in our thoughts and prayers. I am also aware that many people will be wondering where their Thanksgiving meal will come from this year, and I urge us all to be generous givers if we can. As a military veteran, I am always grateful that there are still young men and women willing to dedicate their very lives to my safety and security, and yours.

While our Thanksgiving will be different this year, gathering for dinner via Zoom rather than in person, I’m grateful for the chance to see the faces I love, knowing they are safe. Be kind to one another and gentle with yourself; we’ll get through this together.

Now, to the case news. As you all know, Arizona authorities are reviewing the death of Lori’s third husband, Joseph Ryan. The action comes thanks to Joe’s sister, Annie Cushing, who made public a recording of Lori saying that she thought about murdering Joe. Does this mean anything will come of it? It’s hard to say. Arizona authorities are notoriously slow. I live in the suburban Phoenix area, where it’s not unusual for it to take more than a year before a crime is charged. Everything we know about Joe, including what we learned recently from Fox 10’s Justin Lum’s interview with Joseph Ryan’s divorce attorney, Keth Taniguchi, is that his conflict with Lori was very destructive for Joe. Whether Lori was directly connected to Joe’s death, there’s no dispute that she drove him to the brink emotionally and financially.

Court dates seem so far away, and some are worried that Chad and Lori may end up in jail so long they will be released with time served. I am not a mathematician; I always say if I could do math, I would have gone to medical school, but I’ve been studying sentencing for years, and I think I can do this math. Idaho has indeterminate sentencing. That means the judge can sentence within a range and set the amount of time a person must serve before they are eligible for parole. Check out my last post for a discussion of indeterminate vs. determinate sentencing. Indeterminate sentencing makes it hard to predict an outcome. Still, assuming a judge imposes the full five years, they would get somewhere around 30% off for good behavior and credit for whatever time they have served awaiting trial. That could leave a couple of years on their sentence. It will be up to the judge to decide when they are eligible for parole. Understand that parole eligibility doesn’t mean parole is a given. It only means they can plead their case to the parole board. I also don’t believe prosecutor Rob Wood will allow this scenario to happen. The prosecutor is taking his time and allowing the case to develop while taking steps to pin down witness testimony by pursuing the current charges and having them testify under oath.
Here are the latest court dates:
January 6, 2021 – hearing on Motion to Dismiss and Motion to Change Venue
June 2, 2021 – Pretrial conference for joint jury trial
July 12 – August 6, 2021 – joint jury trial
If the judge grants a change of venue at the January 6, 2021 hearing, the trial dates will change to accommodate the new county’s trial schedule.

Why No Murder Charges? Some thoughts on sentencing

November 19, 2020

Hello friends. I’ve heard from many of you that you’re frustrated with the outward lack of progress on the case and the delay in scheduling trials. I want to comment on those issues. First, prosecuting a complex murder case is a huge undertaking. Prosecuting a murder with what may be six victims in two states is Herculean. Rexburg is a small jurisdiction that doesn’t have infinite resources. Toxicology isn’t an exact or straightforward science. The scientists must methodically search for each possible toxin, one at a time, beginning with the most common and working up to the more rare compounds. It is painstaking, needle-in-a-haystack work. Law enforcement shows like CSI condition the general public to expect a neat resolution in an hour, with a few commercial breaks. Does anyone remember a 1995 movie called Outbreak? If you do, you’ll remember how CDC scientists formulated a vaccine for a pandemic virus in a matter of hours. Now compare that with the many months it’s taken the fastest trials in history to produce a COVID-19 vaccine.

And then there’s the court schedule. What’s up with all the delays? There are so many factors that come into play. First, delaying may put the trial out far enough that a COVID-19 vaccine might be widely available. Second, setting the trial dates in July leaves plenty of time to decide all the preliminary motions, pending,g, and those that may be filed. If the court grants the change of venue motion, the cases will have to be scheduled in the new venue, and those dates will likely change. They could be moved up if either or both defense attorneys don’t object. More likely, the dates will be delayed.
During these lulls, I thought I would write about some of the law’s more nuanced facets. Today, I want to talk about determinate and indeterminate sentencing. Criminal sentencing is very complex, and understanding how it works is imperative for defense attorneys.

For years, most states had an indeterminate sentencing structure. It’s a sentencing scheme that gives judges great discretion. The legislature sets sentences in a range rather than a specific term, and the judge then decided the actual sentence within the range. In the late 1980s and the 1990s, victims’ rights groups began lobbying for longer and more certain sentences, especially for violent crimes. Many states adopted some form of determinate sentencing. For instance, in my home state of Oregon, voters adopted a ballot measure that instituted determinate sentencing, including mandatory minimum sentences in violent crimes. The scheme completely removes judicial discretion and leads to some strange and often unfair outcomes. For example, there is a famous case in Oregon, where two teenaged boys were street racing with two teenaged girls.

The race resulted in an accident where the two girls were killed. Both young men were charged as adults with negligent homicide. Both opted for trial, but one of the two settled for an offered plea just after the trial began. The agreement allowed him to plead guilty to a crime that was not subject to the mandatory sentence. He served about six months in jail and was on lengthy probation. The other teen decided to complete his trial, and the jury found him guilty. Because the charge was for a crime that fell within the mandatory sentencing scheme, the judge had no discretion to alter the sentence. He was required to sentence the young man to six years in prison. As you can see, mandatory sentencing schemes can lead to some very inequitable outcomes. They also place more power in the hands of prosecutors than of judges. The popularity of mandatory sentencing schemes appears to be waning, and more states are attempting to build discretion back into sentencing.

Idaho does not have determinate sentencing, but Arizona does. In Idaho, the judge determines the minimum time before a person can apply for parole unless the statute defines a specific time before parole can be considered. In Arizona, sentences are set by statute and can’t be altered by the judge. During the minimum time, the convict can’t earn time off for good behavior, be paroled, or participate in any program that offers an early release in exchange for participation, such as drug programs that allow for a furlough to sober halfway houses upon completion. For example, if Lori were convicted of First Degree Conspiracy to Commit Murder in Arizona, the sentence would be life, with the possibility of parole after 25 years. If the charge were for Second Degree Conspiracy to Commit Murder, the sentence would be life, with a minimum of ten years before parole.

The differences in the state’s approaches to sentencing could allow Rob Wood to leverage a confession from Lori. If the state of Arizona has a good case for First Degree Conspiracy to Commit Murder, they may offer Lori a plea to second degree if she will give up information on the rest of the deaths. Arizona’s determinate sentence makes it easier to use as a bargaining tool because, unlike Idaho, Lori will know the minimum sentence before parole is certain and specific. That is the kind of plea offer that could induce Lori to give up details on Tammy’s Murder, including the specific toxin used. That would make the toxicology work quicker and more targeted.

Is Lori's recording a smoking gun?

Could Lori's recorded podcast
be the thing that convicts her?

November 7, 2020

Hello Friends. I'm sure you've all heard about the recording of Lori Vallow that Annie Cushing recently posted on YouTube channel. If not, you will want to listen to it. It's on her Annielytics channel, as Let's Talk Joseph Ryan.

References in the recording suggest that they are in Lori's home in Chandler, AZ. Lori is there, along with Melanie Gibb and what sounds like Chad Daybell. People have speculated that this recording may have been made during a visit they all made to Lori's home while Charles Vallow was on a business trip, and it's a reasonable assumption. Lori says her son, JJ, is six, so that pinpoints the timeframe.

The post has attracted a lot of attention because of the statements Lori makes about Joe Ryan. Lori admits, "I was going to murder him. I was going to kill him. Like the scriptures say – If he comes against you once, if he comes against you twice, if he comes against you three times…".

I've said before, I am not a member of the Church of Jesus Christ of Latter-Day Saints, and I am not conversant in church doctrine. Still, her statements seem the opposite of Church teaching. I have not been able to find a specific scripture in the Book of Mormon that makes this statement. It's my understanding that church doctrine teaches that murder is an unpardonable sin. If you know the reference, please share it.

You read my newsletter for the legal perspective, so that's where I want to focus. Is this a smoking gun? Has Lori indicted herself from her own mouth? Well, maybe.

Building a legal case is like putting together a jigsaw puzzle, and Lori's statements are just a piece of the puzzle. For more background on the evidence rules, look at the newsletter in the archives titled Let's Talk About Evidence. For evidence to be admitted in a trial, it must be both admissible and relevant.

Clearly, Lori's statements on the recording are admissible. They are not hearsay because they are recordings of her actual statements and are not someone saying, "I heard Lori say…". Even if a judge ruled them to be hearsay, they would be admissible because they are statements of a party, which falls under an exception to the hearsay rules.

However, before we do the happy dance, we also have to ask whether the statements are relevant. Remember, relevance is judged on how the evidence relates to the charges. In this case, the statements are pretty irrelevant to the charges of conspiracy and destroying evidence. I can say with certainty that even if Rob Wood attempted to offer the recording as evidence in the present case (which I doubt he would do), the judge would reject it.

When and how does this evidence, which is so clearly damning to Lori, get before a jury? It comes in at the next trial and in an interesting way. If Lori is charged with contributing to the deaths of any of the victims, the recording comes in under

IRE 803(3)
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.

We've talked earlier about motive. The prosecutor doesn't have to prove motive, but juries are reason-seeking humans. Explaining why someone did something gives the jury a hook to hang the evidence on. The evidence also comes in to show her state of mind, her possible intent, and plan.

Rob Wood could also use the recording for purposes of impeachment. If Lori and her lawyer are foolish enough to put her on the stand or to offer witnesses to testify to her reputation for peacefulness (like if Lori's sister, Summer, testified that Lori would never hurt anyone), they are considered to have "opened the door" on that line of questions. Rob Wood can then have a field day offering everything he can to show Lori's propensity for violence. There are many statements in that recording that could be used to show her state of mind. For instance, Lori says she's not sweet, she's a holy warrior.

What happened at today's hearing on joinder?

Did the judge order the cases joined?

October 29, 2020

Hello, Friends - thanks once again, for following my newsletter. I want to point out some other resources, in case you don't know about them. If you're not following Dr. John Matthias and his wife, Lauren's podcast, you're missing out. Dr. Matthias is a forensic psychologist who has worked extensively with criminal defendants. Lauren is a journalist. You can find their podcast, Hidden: A True Crime Podcast, on most platforms. Youtuber Awen Rees has built a great community of people interested in this case., and she does a great job of laying out the facts and cutting through the noise. Of course, Fox 10's Justin Lum and East Idaho News reporter Nate Eaton are the go-to guys for the most up to date news. If you follow Justin Lum on Twitter @jlumfox10, you'll be sure to get news about the case first.

The court held a hearing in Chad Daybell’s case this morning. The hearing was on the state’s motion to join Chad and Lori’s cases into one case. Lori’s attorney, Mark Means, didn’t object to the state’s motion, so he and Lori didn’t participate.

First, let’s talk about what happened today. In a short hearing, the judge heard argument from both sides. Rob Wood argued that the evidence in the case would be the same, and it would be more economical for the court and easier on the witnesses and the family members to hold one trial. Wood also pointed out that a joined trial would ensure that a single judge would rule on such discretionary issues as evidence admissibility. Predictably, John Prior argued that Chad would be prejudiced by joining the cases. The judge agreed with the prosecutor, Rob Wood, and ordered the cases joined. That, however, is far from the last word on the subject.

Joinder is about convenience and judicial efficiency. Severance is about fairness and prejudice. Many, myself included, wondered by Mark Means didn’t object to the joinder. Could it be he just had bigger fish to fry, such as his new discovery demands, and didn’t care? Or, might it be that he assumed the court would grant the motion and decided to hold his argument for severance for prejudice for later? I can’t say, but I expect both attorneys to file motions to sever as it stands. I still believe Mark Means has the more persuasive case because Lori is only charged with conspiracy while Chad is charged with both conspiracy and actually destroying, altering, or hiding the evidence. The difference in the evidence will be substantial. Regardless of whether the cases are joined or severed, each defendant will have their own attorney.

John Prior made the point at today’s hearing that he and Rob Wood were also still haggling over discovery, so, let’s talk about the discovery issues. To refresh everyone’s recollection, discovery is the process by which the state and the defense exchange information and evidence about the case. In a criminal trial, because of a US Supreme Court case called Brady v. Maryland, the prosecution must turn over all evidence to the defense. It is an ongoing obligation, so if the prosecution later turns up additional information, it must be turned over to the defense as soon as practicable. That includes exculpatory information, that is, information that might prove the defendant’s innocence. The discovery rules are very broad. They require that the state turn over every scrap of evidence that is either relevant or may lead to relevant information. That means that things that are not directly relevant to the case may still be demanded if the defense can argue that they may point to things that are. But, to be clear, the state is under no obligation to send police out to dig for proof of the defendant’s innocence. That is the reason defense attorney employ their own investigators. Why is John Prior grousing about discovery and having private conversations about it with Rob Wood? Why did Mark Means send the state an eight-page demand letter for discovery? Well, it is a fishing expedition to see if they can get Rob Wood to tip his hand about any future charges. It’s also a way to turn up new evidence about the current charges.

The statements of family and other people related to the case could turn up lines of investigation that Means might want to pursue, so if there are statements that Rob Woods has not turned over, Means should get those. The statements could reveal communication about the alleged conspiracy. Likewise, the autopsies of the children are relevant. Clearly, the state will be introducing them at trial. I suspect that Rob Wood is dragging his feet because he doesn’t want them leaked. The judge can issue a protective order that outlines to whom they can be given and how the reports can be used. A protective order also spells out the consequences for someone violating the order. However, that supposes that you can identify where the leak came from. As we all know, that can be difficult. I expect Wood and the defense attorneys to agree about when the state will turn over the reports, and I expect it will be closer to the trial. I don’t see how the autopsies of Tammy Daybell or Charles Vallow are relevant to these charges, and so it’s harder to argue that they should be turned over.

Let’s remember that the current trial dates are very likely to change. If the judge grants a change of venue, new trial dates will have to be set in the new jurisdiction. I’m sure neither the state nor the defense wants the autopsy reports circulating in the media for months before the trial.

Does State v. Nava help Chad?

Case analysis 

I'm glad to be back to writing about the case.  It was too quiet for too long! Here are some thoughts about the Nava case.  As always, if you have specific questions, feel free to email me at info@thelorivallowstory.com. 

Let's look at John Prior's recent submission to the court. Caution, the following is a complex and sometimes nuanced legal analysis that may make your eyes glaze over. Prior's submission is standard, although the form differs from state to state. In some states, the filing might take the form of a pretrial memo to the court, outlining the evidentiary issues, the case law, and an argument as to why that case applies. It's a way to streamline the hearing and permit the judge to study any applicable cases in advance.  Prior is directing the judge's attention to a case that he believes guides the court on how to rule on the question of joining the cases.
 
When lawyers look to prior cases for guidance, they look at how the case is similar to their case or how the case is different from their case.  The more similar the facts, the more likely the judge will follow the precedent of the caselaw.  Prior directed the court to look at State v. Quentin Nava.  The case was just decided on June 11, 2020. The more recent a case is, the more likely the judge will apply its findings to the case at hand.
 
If you tried to read the Nava case and thought it was written in a foreign language, you're not alone. Law students spend three years learning how to read cases, and this particular case addresses several complex legal issues that are challenging to navigate.
 
The case is about sexual abuse of children by an adult male. Nava, the adult male, was sleeping on the couch. One night, he sexually touches a 12-year-old girl. The following night, he sexually touches her cousin, who is of similar age.  The DA charges Nava with two counts, one for each victim, on one indictment. 

The defense wanted the charges severed because they believed there was evidence in one count that would be prejudicial in the other.  The DA argued that the crimes were part of a common scheme or plan and should be tried together. There are some significant differences between Nava and the Daybell case.  I can also see the similarities and why John Prior is asking the court to consider the case when deciding joinder in the Daybell cases.
 
The first issue for Nava is a kind of legal gymnastics argument. It's relevant, but we'll try not to get bogged down in it. Appeals courts review cases in two different ways, which are called their standard of review.  Some cases are reviewed de novo (which means from the beginning).  That means the appeals court reviews the testimony's transcripts to determine if the facts presented support the judge's finding. The other way the court can review is for abuse of discretion.  In that case, the appeals judges are only asking whether the trial judge abused his or her discretion in making the finding. In that case, the court does not review the underlying facts.

All states have rules that govern how both civil and criminal cases proceed.  In Idaho, criminal cases are governed by the Idaho Rules of Criminal Procedure (ICR). Those rules determine the process of criminal cases, including when they can be joined and when they can be severed. Joinder or severance can be as to the charges or as to the defendants. In Nava, there was one defendant and two charges with two victims.  In Daybell, there are two cases involving two defendants and at least two identical charges against two identical victims.

Oddly, the sections that cover joinder (putting two cases together), ICR 8, and severance (dividing one case into two) ICR 14 have two different review standards.  If the trial judge in a case orders two matters joined under ICR 8, the appeals court reviews that decision de novo, meaning it looks at the fact of the case.  If the judge orders charges filed together severed under ICR 14, an appeals court could only ask whether the judge abused her discretion when she ordered the case severed.  To join a case, the party asking for joinder must prove to the court that the charges involved a common scheme or plan involving both defendants and that the defendants would not be unduly prejudiced by the joinder.  To be clear, joinder is about convenience and economy, while severance is about fairness and undue prejudice.

The Nava appeal argued that the appeals court should have treated the severance motion the same as a rule 8 joinder motion and reviewed it de novo.  The court rejected Nava's argument and ruled that the severance motion would be reviewed for abuse of discretion.

In Nava, the initial indictment was against one defendant and contained two charges for two different victims. Nava's attorney asked to sever the charges, and the DA wanted them kept together. Keeping the charges together made it easier for the prosecutor, who would only have to round up witnesses and put on a trial once. To keep the charges together, the court had to find that the DA had proffered sufficient pretrial evidence to demonstrate that Nava had a common scheme or plan so that the evidence on one charge would be admissible in the trial on the other charge.

The appeals court in Nava found that the trial court's ruling to let the DA proceed on both charges was an abuse of discretion because even though there were similarities to the crimes, there was no proof of a common scheme or plan. The court reasoned that the crimes were crimes of opportunity, not necessarily a common scheme. The second part of the test is whether the evidence of more than one victim tended to prejudice the defendant unduly. The judges reasoned that the Nava jury might have heard inadmissible evidence. The court cites other cases in pointing out that "evidence is not unfairly prejudicial simply because it is damaging to the defendant's case…Evidence is unfairly prejudicial when it suggests a decision on an improper basis." In the Nava case, allowing a joint trial on both victims could lead a jury to think that because the defendant sexually touched one child, he must have sexually touched both children. As the court said, "Additional testimony from another sexually abused child would have carried an especially high risk of infecting the trial by enhancing each victim's credibility." In the Nava case, the appeals court decided that the charges should have been tried separately.
 
How is this the same or different than the Daybell cases? The charges in Daybell were initially brought on separate indictments that the state now seeks to join.  The defendants are different, and the charges are slightly different.
 
Chad's Charges are:
                Count 1: Destruction, concealment, or alteration of evidence (JJ)
                Count 2: Conspiracy to destroy, conceal or, alter evidence (JJ)
                Count 3: Destruction, concealment, or alteration of evidence (Tylee)
                Count 4: Conspiracy to destroy, conceal or, alter evidence (Tylee)

                Lori's charges are:
                Count 1: Conspiracy to destroy, conceal or alter evidence (JJ)
                Count 2: Conspiracy to destroy, conceal or alter evidence (Tylee)

The crime of conspiracy is separate from the underlying crime the defendant conspired to do.  The underlying crime doesn't even have to be completed for the defendant to be guilty of conspiracy; the act of conspiring is the crime.

While it's clear that the crime and the conspiracy to commit it were part of a common scheme or plan, I think John Prior wins on the issue of undue prejudice.  I think the key for Prior is this statement from Nava: "Having found error in the refusal to sever the charges, the potential exists that the jury heard inadmissible evidence." 

I've thought all along that the stronger argument against joinder was for Mark Means to make.  The argument is that Lori is only charged with the conspiracy to destroy, conceal, or alter evidence.  The state doesn't have to put on any evidence that the crime of destroying, concealing, or altering evidence actually occurred.  That means that the state only has to prove the agreement among Chad, Lori, and Alex.  They don't have to prove the crime was committed. Conversely, in Chad's case, he is charged with actually doing the crime.  That means all the information and grisly photos come in against him.  The jury could be so inflamed by that information that they would find Lori guilty of the conspiracy, even if the evidence of her complicity were flimsy. In other words, even though the crimes were part of a common scheme or plan, Lori would be unduly prejudiced by the admission of the evidence against Chad. This issue is now irrelevant (or as we lawyers say, moot) because Lori waived her objection to joining the cases. 

I don't think the Nava case does John Prior much good. I think the prosecutor can prove evidence of a common scheme, and I don't think the evidence unduly prejudices Chad. 
Hopefully, this explains the Nava case and why it's relevant, but if not, please email me with specific questions.   

Thoughts about Mark Means' Tweets

Do the Tweets set up an appeal for ineffective assistance of counsel?

October 24, 2020

Hello Friends.

I’ve seen many comments on social media about Mark Means’ Tweets and lots of questions raised about Ineffective assistance of counsel, so I want to break it down.

The Sixth Amendment of the U.S. Constitution guarantees the right to counsel in criminal cases.  In the landmark case of Gideon vs. Wainwright  372 U.S. 335, 1963, the U.S. Supreme Court ruled that the protection extended to indigent defendants and that the government had an obligation to provide counsel for those who could not afford it.  The ruling also raised questions of competence.  The court ruled that the indigent defendant had a right to effective and competent counsel.
 
It sounds like if Mark Means continues on the current path, Lori Vallow Daybell could have the basis on an appeal for ineffective assistance of counsel, right? Well, probably not.  In the past, courts have ruled that lawyers who either slept through their cases or were so drunk they passed out were not ineffective.  Weird, right?  The court used the old “no harm, no foul” reasoning in coming to that conclusion.
To prove ineffective assistance of counsel, the defendant has to prove that the outcome would have been different if she had had a more effective advocate. That’s a pretty high bar.  Generally, if the state has put on a competent case for conviction, it doesn’t matter how incompetent the defense attorney is.  While Mark Means may be doing things that could get him in trouble with the Idaho Bar, they are not things that would get Lori a new trial.

Another comment I see frequently has to do with when a judge can declare a mistrial. The judge can only declare a mistrial after the trial has started, and a jury has been empaneled.  Those of you who have expressed concern that Means’ conduct could trigger a mistrial, worry not. Mistrials are uncommon and are reserved for misconduct or prejudicial occurrences during the trial.
 
I listened to the October 24, 2020 episode of Court TV about Mark Means’ Tweets, and I wanted to comment.  There are times the hosts make statements that are true but not complete. For example, anchor Julie Grant points out that the DA must disclose all of the information they have to the defense.  She uses that point to counter Means’ statement that the defense lacks the same resources as the state when it comes to investigation.  While she’s right, the DA is required to turn over all evidence to the defense, including exculpatory information, she fails to point out that the state is under no obligation to dig for and uncover exculpatory evidence.  When the police undertake an investigation, they sometimes find evidence that proves the defendant’s innocence, but it’s not their primary goal.  Their primary goal is to find evidence of a crime. If, in the process, they discover information that exonerates the defendant, they can’t bury it. 

For a complete analysis of John Prior's Notice of Submission of Authority and the Nava case, see my newsletter titled Does State v. Nava help Chad?

What is Mark Means Tweeting?

October 21, 2020

                It’s been quiet out there as we wait for the upcoming hearings, and I was hiking among the red rocks of Sedona, Arizona, when my watch buzzed, with the BUZZ that Mark Means has taken to Twitter to try his case! Several people have reached out to me to ask my opinion on Means’ conduct. So here are my thoughts.

                I’ve encouraged readers to give Mr. Means the benefit of the doubt, but I agree that his recent tweets are problematic. I’m not going to call names or cast stones; I’m just going directly to the Idaho Rules of Professional Conduct to see what the rules say about such behavior.
 
                The Idaho Rules of Professional Conduct are made up of several parts. First, there is a Preamble, followed by the Rules and Commentary. To be clear, the Preamble and the Commentary are not rules and are not enforceable. The Preamble contains the aspirations that the rules are based upon, and the commentary is provided to help practitioners interpret each rule’s intent. While not enforceable directly against a lawyer, the Preamble is worth reviewing. For instance, the Preamble states:

“[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others… [7] Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service…[9] In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest…”

The actual text of the applicable rules is:
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. (We’ve noted in previous newsletters that a lawyer doesn’t have to have specialized training or experience in a specific area of the law, only the ability to reasonably attain the specialized knowledge required for the specific case).

RULE 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

RULE 3.6: TRIAL PUBLICITY (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
 
RULE 4.1: TRUTHFULNESS IN STATEMENTS TO OTHERS In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
 
*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.

Now how do we apply all this to Means’ tweets?

A lawyer has an obligation to investigate his client’s case thoroughly. There is no argument that no matter how much money Lori Vallow Daybell has, she will never be able to match the resources of the states of Idaho and Arizona. The prosecutor can mobilize law enforcement agencies and forensic scientists to discover and analyze mountains of information. Because of this, in many states, even retained attorneys may request public defense funds for extraordinary investigative costs. The state of Idaho appears to have a fund called the Extraordinary Litigation Fund (ELF). In my cursory scan of the fund’s information, it appears non-public defender lawyers may apply to the fund for assistance with extraordinary case expenses. They must, however, meet the same qualification standard as public defenders, which are:

V. Defending attorneys’ abilities, training, and experience should match the nature and complexity of the cases in which they provide services including, but not limited to, cases involving complex felonies, juveniles, and child protection. A. A defending attorney shall minimally meet the requirements of Idaho Code §19-855 before representing indigent persons or other individuals who are entitled to be represented by an attorney at public expense. Revised 11/14/18 STANDARDS FOR DEFENDING ATTORNEYS – Edition 2018 3 | Page B. A defending attorney shall be familiar with substantive Idaho law, constitutional law, criminal law, ethical rules, criminal procedure, rules of evidence, and local rules and practices. Defending attorneys have a continuing obligation to know the changes and developments in the law and have the ability to recognize collateral consequences. C. Defending attorneys shall be familiar with current forensic and scientific issues that can arise in a case, including current technology used by law enforcement and other investigative officers, and the legal issues concerning defenses that can be raised. Defending attorneys shall be able to effectively litigate those issues. D. Defending attorneys shall be familiar with mental health, substance abuse, poverty, education and other psychological, medical and social issues that affect and impact the lives of their indigent clients. E. Defending attorneys shall be familiar with office technology commonly used in the legal community, and technology used within the applicable court system. Defending attorneys shall be able to thoroughly review materials that are provided in an electronic format. F. Prior to undertaking the defense of an indigent defendant or other person entitled to an attorney at public expense, counsel should have sufficient experience to provide competent representation for the case. A defending attorney should accept more serious and complex cases only after having had experience and/or training in less complex matters. As such, supervising attorneys should take the experience of a defending attorney into consideration when assigning cases. At a minimum, defending attorneys without adequate experience shall consult with a more experienced defending attorney before handling more complex cases. G. Defending attorneys should, when possible, consult with more experienced attorneys to acquire knowledge and familiarity with all facets of indigent defense representation, including serving as cocounsel to more experienced attorneys. Performance Standard – Investigation and Experts A. Defending Attorneys shall conduct an independent investigation of the charges and offense as promptly as practicable. B. When appropriate, a defending attorney shall request funds to retain an investigator to assist with the client’s case. C. A defending attorney shall request the assistance of experts where it is reasonably necessary to prepare the defense and rebut the prosecution’s case.

In answer to Means’ complaint that the state outguns him, it appears he can apply to the state of Idaho for assistance with investigatory costs. If he doesn’t know this, he should. Why then, is Means asking Twitter for help with the investigation, and why is he trying to discredit some of the evidence publicly? Your guess is as good as mine. To obtain the funds, he needs to prove he is as competent to take the case as any other public defender. I don’t have enough information to know whether he meets those standards, but I wonder if this could impede his pursuit of state funds to help with investigative expenses.

Many people, apparently including Mark Means, believe Melanie Gibb has not been entirely forthcoming about the extent of her involvement in Chad’s cult and that she may know more than she is telling about the children’s deaths. It’s not surprising that Means believes that. Surprisingly, he seems to be challenging Melanie Gibb’s credibility on social media. It’s a choice that could come back to bite him. For many, Melanie Gibb has been a sympathetic witness, who although brainwashed by Chad, finally came to her senses and told the truth. I’ve seen comments about Melanie lying to the police several times. I may have it wrong, but I’ve listened to her testimony more than once. The way I understand what she said, when police asked Melanie whether JJ was with her, she told them he was not. She also told them he had been with her but that he was back at home. Melanie later admitted that the last time she had seen JJ was on September 22, 2019, and that she had lied to police about having him with her at any time after that. The testimony raises two questions: 1) whether the simple fact that Melanie lied to police puts her credibility in everything at issue, and 2) whether the lie impeded the investigation into what happened to JJ. The first question will be one for a jury. Indeed, the defense attorneys will portray Melanie as a liar who can’t be trusted in anything she says. The DA will present her later recording of Chad and Lori as evidence that Melanie’s better angels prevailed and drove her to tell the truth. The second question is one of relevance.  Other than reflecting on her credibility, is the information relevant to the charges? That will be for a judge to decide.

The larger question in this newsletter is whether Means should have gone on the attack on social media. A politician takes to Twitter to shape his narrative to the public or the legislative body. But while a politician’s job is to shape public opinion, not only is it outside the scope of a lawyer’s duty, it’s actually a violation of that lawyer’s professional obligations and the public trust.

Here is what I will say about Mark Means’ conduct: A lawyer’s duty is to his client. First and foremost, that lawyer should investigate, test the state’s evidence, and build the narrative for his client’s version of the disputed events. In an environment where resources are limited, he should seek avenues to fund his client’s needs and not take to Twitter to complain about the inequity. Anything he does outside those duties is likely counterproductive and does not serve his client. According to the Idaho Rules of Professional Conduct, any injury to his client or their case is unethical and constitutes misconduct.

We live in a society increasingly governed by quick jibes and internet memes. Our political discourse is reduced to oneliners and gifs. But it’s a lawyer’s job to elevate, to assure that justice is served, and not to serve up his case like it was the most recent activity of the Kardashians. Don’t get me wrong, I love social media, and I think it serves some fun and potentially important functions. It should not ever replace good old-fashioned lawyering.

Some have speculated that Means is trying to get himself tossed off the case. The problem with the logic is that he’s as likely to be disciplined or potentially disbarred as he is to be dismissed from the case.

My advice to Mark Means: work hard for your client, dig deep, study, consult other, more experienced lawyers, and above all, keep yourself and your case off social media. If you must post, adjust your privacy settings to friends only, and post only about things not related to your case.

Patience is Hard.

Can we keep the faith during
this lull in the cases?

And RIP Justice Ruth Bader Ginsberg

September 23, 2020

Hello, Friends. The Vallow/Daybell case is in something of a lull right now. Things will pop again soon, as the hearings on the motions grow closer. I’ve written at length about the issues of the motions. Take a look at the posts in the archives.

Before I dive into case discussion, I want to comment quickly on the death of Supreme Court Justice Ruth Bader Ginsberg. Regardless of your political leanings, Justice Ginsberg was a towering figure in American jurisprudence. I was the beneficiary of Ginsberg’s hard work on behalf of women’s rights, as a woman who both became a lawyer and spent 20 years in the US military.

I've enjoyed many of the opportunities in my life because Justice Ginsberg cleared the trail before me. When Justice Ginsberg was admitted to Harvard Law in 1956, a professor complained that she and the other eight women in the class were taking places that should have gone to men. In 1989, just about half of my first-year law school classmates were women. For most of my career, women left the practice at much higher rates, and their career progressions were much slower, meaning that they weren’t always able to advance to higher-earning positions in firms.

When I was born in the mid-1950s, girls were nurses or mommies. Today, my 20-something daughter can’t fathom women not being able to do or be anything they want. I’m grateful for the trailblazers that made that possible. On a personal note, when I graduated from law school in May of 1992, Ruth Bader Ginsberg, who still a judge on the DC Circuit Court then, and her husband, Martin Ginsberg, were the keynote speakers at my law school graduation. Their talk was funny, inspiring, and endearing, and it's one of my most precious memories.

Now, on to the Vallow/Daybell case. Don’t you wish you could read Rob Wood’s mind? I sure do because right now, there is simply nothing to do but wait, and speculate. I see many people on social media expressing distress that neither Lori nor Chad have been charged with more serious crimes. You aren’t wrong; the case is moving at an agonizingly slow pace. Many speculate that there may not be enough evidence to charge them. I’m still confident that more serious charges are coming. Rob Wood may be using the current charges to sift through the legal issues before bringing the more serious charges. It’s smart to wait and let the motions play out. Once the court decides on joinder and venue, I think you will see some movement.

I’m also still convinced that there is a broad strategy that involves Arizona charges for Charles Vallow’s death. I live near Chandler, Arizona, and I have observed the glacial speed at which local DAs make charging decisions. Even when cases appear very straight forward, it seems to take months from the time someone commits a crime until they are finally charged. I still think those charges are the leverage needed to force Lori to flip on Chad. See my newsletter titled "Who Could Be Turning?" for the analysis.

I am sure both Chad and Lori will name Lori’s brother, Alex Cox, as the person who killed the children. With the text to Tammy on the day, it appears Tylee’s body was disposed of, Chad is clearly implicated in the disposal of the bodies. The question will be whether he was also involved in the conspiracy to commit the murders.

The Vallow/Daybell cases are complicated, and the road to a conviction for both may not be direct. While I know many people feel outraged that Chad and Lori might escape charges for the murder of the children, I am sure prosecutors are working to secure the most severe punishment for the charges they can prove.

Why Would Lori Waive Her Objection to Joinder?

Does she just want to see Chad,
or is there more?

September 16, 2020

                I’ve thought a lot about the legal reasons Lori might waive her objection to the joinder of her trial with Chad, and to be honest, I can’t find one.
As I outlined in my last newsletter, there may be a significant argument NOT to join the cases. Here is a quick recap of that.
                Under Idaho law, cases are appropriately joined when the charges and the evidence are the same. Chad and Lori’s charges are different.
                Chad’s charges look like this:
                Count 1: Destruction, concealment, or alteration of evidence (JJ)
                Count 2: Conspiracy to destroy, conceal or, alter evidence (JJ)
                Count 3: Destruction, concealment, or alteration of evidence (Tylee)
                Count 4: Conspiracy to destroy, conceal or, alter evidence (Tylee)
                Lori’s charges look like this:
                Count 1: Conspiracy to destroy, conceal or alter evidence (JJ)
                Count 2: Conspiracy to destroy, conceal or alter evidence (Tylee)
                For every criminal charge, there are elements that the prosecutor must prove. Here are the elements of IC 18-2603, Destruction, alteration, or concealment of evidence:

1. On or about a particular date that is within the statute of limitations

2. In a county within the state of Idaho

3. A person

4. 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

5. Wilfully

6. Destroys, alters, or conceals the evidence

7. With intent to prevent it from being produced, used, or discovered.

And here are the elements of IC 18-1701, Criminal Conspiracy

1. On or about a particular date that is within the statute of limitations

2. In a county within the state of Idaho

3. Two or more persons

4. Conspire to commit a crime or offense AND

5. One or more of the persons does any act to effect the crime.

As you can see, what the prosecutor has to prove is very different in both crimes. The prosecutor has to prove all this against Chad, but only the second part as to Lori. Thinking it through, Lori could be found guilty of conspiracy, based solely on her text messages and the fact Chad bought duct tape. There would not necessarily need to be any discussion of the actual way the children’s bodies were destroyed, concealed, or altered. But, to prove the first charges as to Chad, the prosecutor will have to bring in all the evidence about the condition of the evidence – the children’s bodies – and how it came to be in that condition. That’s very emotional evidence, and it’s possible, a jury could find Lori guilty on her charges based on the evidence presented to prove the charges against Chad. That is why defense attorneys oppose joint trials, and that is why I think Mark Mean should have opposed the joinder of the trials.

                Although Mark Means may very well have done this same analysis and may have advised his client to oppose the joinder, ultimately, an attorney is ethically bound to follow his client’s wishes. So why would Lori want the trials joined? Many people have speculated that it is because she wants to see Chad and be in the courtroom with him, dressed up pretty. That could be one reason, but I think there might be another.
                I believe Lori sees it is her responsibility as a faithful wife under the doctrine of the Church of Jesus Christ of Latter-Day Saints, to defer to her husband in all things, even in trial. In the LDS faith, wives are subject to their husband’s “priesthood” in all things. Wives only obtain their resurrection and exaltation to the Celestial Kingdom through their husbands. That is why it’s so critical in the faith for a woman to marry. According to the LDS Journal of Discourses, vol. 5, p. 291, “No woman will get into the celestial kingdom, except her husband receives her, if she is worthy to have a husband, and if not, somebody will receive her as a servant.” A woman’s salvation is dependant on her husband’s “priesthood authority,” which he receives when he is endowed with the keys to the Aaronic Priesthood in a ceremony at about age 12. Girls do not receive priesthood authority; they can’t be saved unless they are sealed to a male who has priesthood authority.

                A husband’s priesthood authority gives him a greater connection to God and a better opportunity to discern God’s will through personal revelation. Lori’s traditional LDS belief in her place as a wife may be what led her to direct Mark Means not to object to the joinder. Beyond wanting to sit in the same room with him, Lori believes it is his right and responsibility to direct their legal process. Her view of Chad as “the prophet” further amplifies her desire to defer to him in all things. That may also be why John Prior’s objection to joinder was so tepid and toothless. He may have felt his response was a compromise, allowing him to preserve an objection for appeal while honoring his client’s wishes.

                Mark Means filed a motion to permit Lori to wear street clothes and have access to cosmetics and hair products. That’s a very typical sort of pretrial motion. And yes, Lori is very concerned about her appearance, but her attorney is concerned about jury impressions. When a defendant appears before a jury in jailhouse orange and belly chains, the jury, on a subconscious level, jumps to the conclusion that the defendant is guilty. We never want our clients to appear before a jury in jail clothing or restraints. For example, I practiced in a jurisdiction where defendants were required to wear a leg brace style restraint under their street clothing in court. The device made them walk with a decided limp and required that they push a catch on the side to sit down. Once seated, the device wasn’t visible. In that case, I always insisted my client enter and be seated before the jury came in, so they never saw my client limping in and fumbling with the thing on their leg.

                It appears that a hearing on pretrial motions, sometimes called an omnibus hearing, is scheduled for October 29, 2020, at 9 am, except for the hearing on the motion to change venue, which is scheduled for November 24, 2020, probably because it could take a full day to hear. It also appears that Lori’s trial has been moved up from April to March. That date will surely change again if her trial is joined with Chad’s.

Lori's Arraignment and those pesky motions

What actually happened today, and what do the motions for joinder and change of venue mean?

September 10, 2020

Hello, my friends!

You didn’t miss anything; I skipped last Friday’s post because things have been pretty quiet on the Vallow/Daybell front.

First, I need to say a few words of thanks. When an author looks for a publisher for a book, potential publishers want to see that the author has a following. They want to know that there are people who are interested in the author’s work and the story she has to tell. It’s what publishers call a “platform.” I began this newsletter as a way to engage with the story as well as with potential readers of my future book. Today, nearly 1500 of you have subscribed, and many have taken the time to email me with compliments, comments, and suggestions, for which I am grateful. I can’t thank you enough for the response. I also want to say a word of thanks to Awen Rees. For those of you that aren’t familiar with her, besides having a cool name, Awen also has an excellent YouTube channel where she covers true crime stories. She generously encourages her followers to become subscribers to the newsletter. I also highly recommend Hidden, A True Crime Podcast, hosted by forensic psychologist Dr. John Matthais and his journalist wife, Lauren Matthias.

I recently connected with the Reddit community and will be doing a session called Ask Me Anything on September 19, 2020. For more information or to ask questions, follow the Reddit True Crime subgroup.
 
Now about today’s developments. Lori Vallow Daybell was arraigned on two counts of conspiracy to conceal, alter or destroy evidence of a crime. John Prior filed his objection to the state’s motion to join the cases, and he also has a pending motion to change the venue.

Let’s talk about the arraignment first. As those of us who watched know, an arraignment is a very quick and necessary formality – but what is it really? The arraignment is the formal notification from the court to the defendant that the state has filed charges against them and what those charges are. It’s also the defendant’s first opportunity to enter their initial plea. Lori pled not guilty, and a trial date was set in April. I know. When the judge said April, it made a lot of people spit out their White Claws. It’s not all that surprising, really. First, the judge said the date was agreed to by the state and the defense beforehand. Finding a date for trial can be a real exercise in frustration.  You have to find a date that works for the court and the defense attorney, and then the prosecutor has to be sure all their witnesses are available, working around police training and vacations.  Second, the dates are nothing but placeholders anyway. If both the motions for joinder and change of venue are granted, as I expect those dates will change.

So let’s look at both motions. Joinder of cases is common when the charges against co-defendants are the same and arose out of the same criminal act or occurrence, making the evidence the same for both co-defendants. Judges and prosecutors like joining cases and the appeals courts favor it in Idaho. Defense lawyers, on the other hand, don’t like them. That said, John Prior’s objection to the motion was so cursory it was nearly nonsensical. Suggesting that the case shouldn’t be joined because of the pretrial publicity is just silly. If anything, the court could see it as all the more reason to join the cases, so the court only has to deal with the scrum of the press once.

There is a difference between Chad’s charges and Lori’s, and if I were Mark Means, I’d be exploiting it. Chad is charged with the conspiracy, but he’s also charged with actually concealing, altering, or destroying the evidence, while Lori is only charged with the conspiracy. That means the state only has to prove Lori’s involvement before the actual crime and that someone who was in on the conspiracy took a substantial step to complete it. That’s still a step removed from what Chad is charged with – Chad’s charges amount to actually putting his hands on the children’s bodies. If the trials are combined, Lori runs the risk of them both being painted with the same brush. If the trials are separate, the jury will only hear about the conspiracy and a bit about what steps the conspirators took toward actually concealing, altering, or destroying the evidence. In Chad’s trial, the jury will hear about what happened to the children and what part Chad played. That’s certain to prejudice Lori because any jury, no matter how they are instructed, will have a hard time separating Lori’s involvement in the conspiracy from Chad’s part in actually handling, hiding, and in Tylee’s case, dismembering and burning, the bodies. If I were in Mark Means shoes, I’d be arguing this one until I’m blue, and I’d be making a meticulous record for appeal.

John Prior has filed a motion for a change of venue. Unlike his response to the joinder motion, this motion seems more thought out. The motion says that all the supporting information will be presented at a hearing on the motion. We’ve all heard the rumors that there were people in Rexburg canvassing and asking people’s opinions about the cases. I expect the court will grant this motion. In Idaho, the judge has the choice to either stay on the case and hear it in the new venue or to allow the state court administrator to appoint a new judge in the new jurisdiction. There are a few options. Moving the case to Idaho Falls or Twin Falls would be more convenient for people who are traveling from Rexburg to be witnesses. Moving the case all the way to Boise would give both sides access to a better cross-section of potential jurors who may not have formed an opinion about the case. I think there is plenty to justify moving the case. Not only has the media coverage swamped the small town, but in a community where 96% of the population are members of the Church of Jesus Christ of Latter-Day Saints, a case involving aberrant LDS doctrine has most certainly elicited strong feelings.

Don’t be surprised if there is a lull in the cases. I expect there to be a motion hearing set shortly to deal with the motions for joinder and change of venue. Once those motions are decided, the court can set firm trial dates for both Chad and Lori.

Until then, stay safe out there, and be sure to email me with questions or comments.  

Chad's Motion to Dismiss

What in the name of justice,
is going on here!?

September 1, 2020

Hello, my friends. There has been a new development.  Chad's attorney, John Prior, has filed a motion to dismiss the case.  Here is a quick rundown of the reasons why. 
 
Filing a motion to dismiss charges is a typical step for a defense attorney in most cases. The Idaho Rules of Criminal Procedure Rule 12 spells out the types of motions that may be filed.  I’ve added the text of the rule here.

Idaho Criminal Rule 12. Pleadings and Motions Before Trial; Defenses and Objections 
(a)  Pleadings and Motions. The only pleadings in criminal proceedings are the complaint, indictment or information, and the pleas of guilty and not guilty. Defenses and objections before trial must be raised by motion to dismiss or to grant appropriate relief as provided in these rules. 
(b)  Pretrial Motions. Any defense objection or request which can be determined without trial of the general issue may be raised before the trial by motion. The following must be raised prior to trial:
(1)  defenses and objections based on defects in the prior proceedings in the prosecution;
(2)  defenses and objections based on defects in the complaint, indictment or information (other than that it fails to show jurisdiction of the court or to charge an offense, which objections may be made at any time during the pendency of the proceedings);
(3)  motions to suppress evidence because it was illegally obtained;
(4)  request for discovery under Rule 16;
(5)  request for a severance of charges or defendants under Rule 14; or
(6)  motion to dismiss based on former jeopardy.
(c)  Motions to Suppress. A motion to suppress evidence must describe the evidence sought to be suppressed and the legal basis for its suppression sufficiently to give the opposing party reasonable notice of the issues.
(d)  Motion Date. Motions under Rule 12(b) must be filed within 28 days after the entry of a plea of not guilty or seven days before trial whichever is earlier. In felony cases, motions under Rule 12(b) must be brought on for hearing within 14 days after filing or 48 hours before trial, whichever is earlier. The court may shorten or enlarge the time and, for good cause shown or for excusable neglect, may relieve a party of failure to comply with this rule.
(e)  Ruling on Motion. A motion made before trial must be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. Where factual issues are involved in determining a motion, the court must state its essential findings on the record.
(f)  Effect of Failure to Raise Defenses or Objections. Failure by the defendant to raise defenses or objections or to make requests that must be made prior to trial, or at the time set by the court pursuant to subsection (d), or prior to any extension of time granted by the court, constitutes waiver of the defenses, objections or requests, but the court, for cause shown, may grant relief from the waiver. 
(g)  Records. A verbatim record must be made of all proceedings at the hearings, including all findings of fact and conclusions of law that are made orally.
 
To understand why John Prior filed his motion, let’s look at section (f). If the motions aren’t filed within 28 days after the entry of the not guilty plea, they are waived.  Prior’s actions are about preserving the objections for later.  If he doesn’t file the objections now, they can’t be raised later, either at trial or in an appeal. Prior is following the trajectory that any careful and experienced criminal attorney would.  To do anything else would be malpractice. Does that mean that there are grounds to dismiss the indictment? It doesn’t appear so, but I can’t be entirely sure, because I haven’t seen a copy of Prior’s motion yet. 
The language in an indictment is critically important because it is the document that gives the defendant notice of the charges against him. Prosecutors should, and do, put great effort into the wording in indictments.

As I understand it, Prior is continuing the drumbeat for specific dates and times that he began during the preliminary hearing.  He’s challenging the prosecutor’s representation in the indictment that the crimes happened “on or between the 22 day of September 2019 and the 9th day of June 2020,” for JJ, and “on or between the 9th day of September 2019 and the 9th day of June 2020,” for Tylee. Identifying a range of dates is a common practice for prosecutors.  The indictment is not deficient because the dates are not more specific.  The prosecutors know the last date each of the children was seen.  We know the date the children’s remains were discovered.  We have cell phone pings from Alex Cox that place him in Chad Daybell’s backyard on the day after each of the children were last seen. That’s circumstantial evidence that the children were buried on those days, but the prosecutor can’t say with certainty that the children’s remains weren’t placed there at some other time, between their disappearance and the discovery of their remains. To be safe, Rob Wood has identified the range of possible dates the evidence of a crime could have been concealed, altered, or destroyed.

It is unlikely the court will dismiss the case because of John Prior’s motion.  The complaint appears to be tightly drafted; pleading a range of dates is an acceptable and legal way to craft an indictment. 
John Prior has also requested a transcript of the preliminary hearing. He will need that to file any challenges or appeals to the way the preliminary hearing was conducted. For example, every time the judge ruled on one of Prior’s objections, it’s a ruling that an appeals court could review. Think what you might about Prior’s courtroom demeanor; he’s doing the job he was hired to do. Preservation of issues for appeal is at least half of a criminal attorney’s job.

I would expect to see a similar motion to dismiss filed on behalf of Lori Vallow Daybell soon.