New Means monkey business and no AZ charges for Chad

Hello friends, there are a few developments to talk about this week.

Let’s talk first about the documents Mark Means filed this week. For what it’s worth, I can’t stop rolling my eyes at just Means being Means again.

First, he asks to hold Heather Daybell in contempt of court for not answering his subpoena. Subpoenas, for information, known as subpoenas duces tecum, are not an excuse for a fishing trip. A subpoena is for specific information, not, as Means seems to think, a chance to demand that the subject produce proof of every conversation or correspondence they’ve had with any person living or dead in the past five years. Means’ demands are overly broad. Rather than being intended to turn up relevant information, they’re meant to turn up all information on the off chance that somewhere in the volumes of data is something relevant. That’s not how the law of discovery works, and both Heather Daybell and Melanie Gibb have been advised so. Their attorneys should have filed a motion to quash the subpoena, but given the absurdity of the demands, neither may see it as necessary for their client to bear the expense.

The next filing is simply ludicrous. In Idaho, like all states, the law outlines the procedures for both civil and criminal cases. The rules of civil procedure do not apply in criminal cases. Yet, in his document titled Reservation of Rights and Defenses, Means cites to Idaho Rule of Civil Procedure 12. In a civil case, if a defendant does not challenge certain things, such as jurisdiction or venue, before they file a responsive document, the challenges are waived. It, therefore, makes sense to reserve the right to challenge them later, particularly if your client is presently unavailable. In case Means missed the brief, he’s involved in a criminal action. That means ONLY the Idaho Rules of Criminal Procedure apply. IRCP 19-1701 says, “the only pleading on the part of the defendant is either a demurrer or a plea.” That’s unambiguous. It doesn’t say unless you’re a civil attorney who is entirely out of your depth and wants to do what you know. To demur is to object, and a demurrer is the proper form for an objection in a criminal case. Here is the Idaho rule on the ground for demurrer. It’s vastly different from the civil procedure rule Means cited.

19-1703. GROUND FOR DEMURRER. The defendant may demur to the indictment when it appears upon the face thereof, either:
1. That the grand jury by which it was found had no legal authority to inquire into the offense charged by reason of its not being within the legal jurisdiction of the county.
2. That it does not substantially conform to the requirements of sections 19-1409, 19-1410 and 19-1411.
3. That more than one offense is charged in the indictment.
4. That the facts stated do not constitute a public offense.
5. That the indictment contains any matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.

19-1711. OBJECTIONS MUST BE TAKEN BY DEMURRER. When the objections declared grounds of demurrer by this chapter appear upon the face of the indictment, they can only be taken by demurrer, except that the objections to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a public offense, may be taken at the trial under the plea of not guilty, or after the trial in arrest of judgment.

Means seems to think he needs to preserve Lori’s time to challenge the indictment, but the time doesn’t even start until she’s actually arraigned. Because of the point where the stay was entered, nothing can happen that might put Lori’s rights at risk.

The last document is titled Motion to Transfer trial. This is not the way one asks for a change of venue. There should be supporting documents, affidavits, and declarations. Simply citing the rules of criminal procedure (which it’s clear Means has not read) and the Constitution is not sufficient.

Now let’s talk about what you all really want to know. Why in the hell didn’t Arizona charge Chad with conspiracy to commit Charles’s murder? Well, the answer is simple. They can’t prove beyond a reasonable doubt that Chad actually participated. I know what you’re thinking, but in AZ, encouraging or manipulating someone into committing a crime isn’t enough. This isn’t the last word on the subject, though. This is not a situation where double jeopardy applies. (Jeopardy only attaches once a jury is empaneled.) The state can and likely will file charges against Chad if additional evidence surfaces, which it very well might, once the Idaho charges against Lori are actually back on track. Those charges can be filed any time, even after Lori’s charges are adjudicated. The attempted murder of Brandon Boudreaux is still under investigation, and I expect we will see some charges coming soon.

Lastly, it’s Friday, and you know what that means. Lauren Matthias and I will be live tonight! Catch us on YouTube on Hidden True Crime at https://youtu.be/kn2nP9KwekE. See you then!

Lori Indicted For Charles Vallow's Murder.

So much to talk about! Before we jump into it, though, I wanted to wish you all a happy and safe Fourth of July. There is no question that this crazy thing we call democracy is a finicky, fragile, high-maintenance child. Protecting it requires courage, vigilance, and balance. As a lawyer and a 20-year military veteran, I invite you, amid your celebration, to remember those who fought to protect this freedom over the last 245 years. Not only the soldiers, sailors, marines, and airmen, but also the lawmakers. Rejoice that with all its flaws, our system is still one of the best in the world. The recent and long-overdue creation of a Juneteenth holiday is proof that we can learn and change for the better.

First, the biggest news; Lori Vallow has been indicted for Conspiracy to Commit Murder in Arizona for the death of her fourth husband, Charles Vallow. Let’s review the current situation so we can speculate on what might happen next.

• Lori has been deemed incompetent and is receiving restorative services in a state hospital in Idaho.

• Her three Idaho cases have been stayed, meaning nothing can happen in those cases as long as she is still incompetent.

• She has not even made a first appearance on the Idaho murder charges.

• There is a hearing scheduled for tomorrow, July 1, 2021, at 11 am MDT. The meeting is identified as a “status conference.” We don’t know what the judge will hear about which status. Stay tuned.

• Lori has been deemed indigent in Idaho and will also be indigent in Arizona. As a result, she will be appointed an attorney. Hopefully, Mark Means will supply that attorney with complete information about Lori’s condition, so her rights can be protected on the new charges.

• Any initial appearances and arraignment on the Arizona charges will be held by video. After that, she will remain in Idaho until the Idaho charges are resolved by conviction or plea, and she is sentenced.

• States are hesitant to give up a defendant to another state once they have the defendant in custody. Remember, states are sovereign thanks to the 14th Amendment to the US Constitution. That means neither state can tell the other what to do. In general, cases are adjudicated in the order they were charged, so Idaho has precedence. Once Lori has been convicted and sentenced in Idaho, she will be transported to Arizona to face those charges.

• The speedy trial clock is suspended, and the time tolled when a person is in custody in another state. That means the Arizona authorities are not going to bump up against any speedy trial time limits. To determine whether the defendant had a speedy trial, the time the defendant is in custody in another state doesn’t count, and it’s as if that time didn’t exist. The reasoning is that the defendant has committed some culpable conduct that makes her unavailable to stand trial in another state. Therefore, she should not benefit in the second state (potential dismissal because of speedy trial violations) because of her criminal conduct in the first state.

• Arizona does have an insanity defense. To invoke it, the defendant must prove that at the time of the offense, they were unable to appreciate the wrongfulness of their conduct or their ability to conform their conduct to the requirements of the law was significantly impaired. That will be difficult, with body camera footage of Lori just minutes after the shooting, appearing calm, relaxed, and quite aware of her circumstances and surroundings.

• There is no way to know why Chad has also not been charged with Charles’s murder. It could be that the DA will present his involvement to the grand jury separately or that they don’t believe there is sufficient evidence to charge him.

Chad’s murder case has been set for trial. What’s next? Once again, let’s see how accurate my crystal ball is. I think the DA will file their notice of intent to seek the death penalty soon. They have until July 25, 2021, to file. The date falls on a Sunday. Different courts have different rules about how to treat deadlines that fall on the weekends, but I think we can expect the DA to file something by Monday, June 26th at the absolute latest. Chad’s attorney, John Prior, asked to postpone the change of venue motion and has asked for the deadline to file motions to be extended. All reasonable requests. If the notice of intent to take the death penalty is filed, there will be a big shake-up. John Prior is not death penalty qualified. He could become qualified to continue as the second attorney on the case, but a lead counsel will have to be appointed. An entire defense team will be assembled, including at least one investigator (probably more) and a mitigation specialist. When the new attorney is appointed, they will need time to get themselves up to speed with the case. Chad will have a decision to make; he will have to decide whether to demand a trial within the six-month speedy trial rule or waive his right to a speedy trial and postpone the trial until next year. I expect if this circumstance arises, he will waive and postpone the trial to assure his new legal team has all the time they need to formulate his defense. It raises an interesting question about how it impacts Lori’s case and the fact that they are joined. Right now, Lori’s case is paused while she received restorative services. That may not still be the case if the trial is postponed into next year. I still anticipate that the DA will seek to consolidate the two cases (the earlier destruction of evidence case and the murder charges) into one case. I also expect that John Prior will file a motion to sever Chad’s case from Lori’s.

This week we also saw some odd filings surrounding sealing documents. Let’s see if I can explain. Apparently, Mark Means filed a second declaration supporting his motion to hold the state in contempt of court for delaying discovery. He also apparently attached 169 pages of confidential discovery to this declaration to prove the statements he’d made, yet another rookie mistake. That prompted the prosecutor to frantically seek an emergency order to seal the documents and protect the confidential information. There was also an order unsealing something. The reason will require a little explanation of how court records work. In the old days of paper files, a portion of the file was set aside for sealed documents. The document was literally sealed in an envelope. But people handling the file needed to know what was in the sealed envelope, so usually, the order to seal contained a general description of what was in the envelope – in this case it was the defendant’s declaration regarding the Motion for Contempt. Then court staff would affix the order to the outside of the sealed envelope to identify the document inside. A similar process happens now, digitally. Apparently court staff mistakenly sealed the document that is supposed to remain unsealed to identify what is in the sealed portion. The court then had to order it unsealed.

There was a period of time after Means’ declaration was filed and before it was sealed, when some people may have obtained copies of the motion and the confidential pages before they were ordered sealed. We know Nate Eaton of East Idaho News did. Nate was clear that he has no intention of making that information public. That’s journalistic ethics. Most true professional journalists are committed to a code of professional ethics. The Society of Professional Journalists has published one of the most commonly used codes. If you would like to take a look at them, the provisions can be found at www.spj.org/ethicscode.asp. One of those tenets is “Minimize Harm.”

Before I was a lawyer, I earned a bachelor’s degree in journalism. I intend to make my upcoming book as truthful, unvarnished, and objective as I can. My goal from the start has been to understand all the angles of this incredibly complex story. Perhaps we can use what we learn to prevent something like this from happening again. If you have not had the opportunity to listen to Lauren Matthias’s interview with Dr. Christine, please do. It can be found on Hidden a True Crime Podcast as well as on her YouTube channel. Dr. Christine’s situation, while not the same as the Daybell case, has some interesting similarities. The story illustrates that these situations where someone declares themself a prophet and uses it to take advantage of vulnerable people aren’t uncommon.

The Lifetime Channel released their movie about the case. Many found it disgusting, unsettling, and inaccurate. It’s hard to say how much was dramatization for ratings and how much was true. We won’t know until the cases are finished, and people like me can delve into the records and interview those involved. I suspect we will find the movie bears little resemblance to the actual facts.

Finally, I keep seeing the word mistrial tossed around in comments on Facebook. I’ve addressed this before, but to be clear, a mistrial can only occur after a jury is seated and if there is some sort of misconduct by either side or if inadmissible or improper evidence is introduced. Means’ inclusion of confidential information with his motion is NOT grounds for a mistrial.

I want to thank all of you for subscribing to this newsletter and a special thanks to both Tricia Griffith from Websleuths and Lauren and John Matthias from Hidden True Crime for having me as a regular guest on their YouTube channels. Knowing them has enriched my life and extended my reach. Please support them both by subscribing to their channels and liking their videos. Until next time, stay safe out there.

Chad's Trial Date and More

Hello Friends!

There are a few things to discuss, so let’s get right to it.

Chad had an uneventful scheduling hearing this morning. The judge scheduled his trial for November 8 to December 17. That’s a possible six-week trial. How certain is the date? Well, on the scale from being carved in Jell-O to being carved in stone, I’d say it’s in the wet cement category. Idaho law, 19-3501(3) requires that the court must dismiss any action unless good cause to the contrary is shown, “If a defendant, whose trial has not been postponed upon his application, is not brought to trial within six (6) months from the date that the defendant was arraigned before the court in which the indictment was found.” That means that unless Chad waives his right to a speedy trial and asks to continue it, the trial will happen. Why might Chad ask for more time? The biggest reason will be if the state files their notice of intent to seek the death penalty. If that happens, the court will appoint new, death-penalty qualified lawyers, and they will have to get up to speed. Additionally, death penalty cases are investigated and prepared differently and more painstakingly than other cases. There are still so many variables in play that it’s hard to say whether the scheduled trial will happen.

There are usually pretrial motions that need to be drafted and filed well before trial. The judge gave Prior extra time to file those motions because there is so much discovery to compile that the prosecutor hasn’t finished their part yet. The prosecutor explained that the discovery is voluminous, and they intend to send Prior all the information from both cases. That means some of the information will duplicate what Prior already has. Mark Means might take a page from Prior’s playbook. Prior has been in touch with the prosecutor and discussed the discovery problem. The prosecution has promised the discovery by July 15, 2021.

When a prosecutor prepares discovery, it’s not as simple as just making photocopies of everything, dumping it in a box, and telling the defense attorney to come and get it. These days, discovery is provided electronically. The prosecutor’s office compiles and numbers every page, then indexes every document to assure they have provided a complete copy of all the records to the defense. It’s a time-consuming and detailed process that can take days to complete. Once that’s done, the data is either sent via a secure server to the defense or downloaded directly onto a hard drive. Prior offered to provide a hard drive for that purpose, but the prosecution declined. That’s likely because the prosecution doesn’t want to run the risk that their computer could be contaminated by using a drive that their IT department hasn’t cleared.

John Prior has discussed discovery appropriately and professionally, and the state has responded in kind. Prior has a lot of work ahead of him; in addition to the stacks of documents, he also has five days of grand jury testimony to listen to. Judge Boyce ordered that any motion hearings occur before September 10, 2021. That means Prior has to file his motions before that date and allow time for the state to respond and the court to set a hearing.

Unlike John Prior, Mark Means has continued to file frivolous, time-consuming, and, some might say, harassing motions. The criminal bar, both prosecution and defense, tends to be a collegial group. The attorneys know they will be dealing with one another long after their current client forgets their name and that their professional reputation isn’t worth sacrificing. It’s a lesson Mark Means has yet to learn. Means has filed a motion demanding that the case be dismissed, and the state be sanctioned for not providing him with the discovery when he asked for it. He has also filed a motion to hold Melanie Gibb in contempt for not responding to the subpoena he served on her. It’s hard to see the authority for Means’ motion to dismiss the case because of discovery violations since Lori was declared incompetent before she was even arraigned, and it’s usually arraignment that triggers the obligation to provide discovery. I think the state may argue that he’s technically not even entitled to discovery.

As many of you know, I appear regularly on Lauren and Dr. John Matthias’s YouTube Live episodes on their channel, Hidden True Crime. I admire and respect Lauren and John for the approach they’ve taken to the case. Lauren is a journalist, and Dr. John is a forensic psychologist. Like all of us, they are trying to make sense of this inexplicable case. Because of the popularity of their channel, many people associated with the case have reached out to them. Lauren recently aired an interview with a man named Shawn Littlebear. Littlebear was involved in the founding of Preparing a People (PaP). PaP was a group that organized conferences and other events for the prepper community. They primarily aimed their events at the LDS Church members, and Chad Daybell, Melanie Gibb, and Julie Rowe all spoke at their events. It appears that these conferences were the jumping-off point for Lori and Chad’s strange beliefs. Because Littlebear was present in the early days of the organization, Lauren was interested to hear him recount the memories of that time. Many have been critical of Lauren for giving Littlebear a forum. Littlebear’s experience is just a tiny piece of a large and complex puzzle, but if we truly hope to understand and learn from this case, we have to listen to all parts of the story, even those that seem strange or that we disagree with. We need to understand so that we can recognize the warning signs before children die.

Lori remains in a mental hospital where she is receiving restorative treatment with the goal of restoring her to competence so she can proceed to trial. Rumors are swirling about possible charges in Arizona. Those charges involve the death of Lori’s fourth husband, Charles Vallow, and the attempted murder of Brandon Boudreaux. Boudreaux is the ex-husband of Melani Pawlowski, Lori’s niece.

About a month ago, law enforcement in Arizona announced they had completed their investigation into crimes involving Lori Vallow and were referring the cases to the prosecutor’s office. I live in Arizona and have found their charging process excruciatingly slow. Additionally, they don’t want to file the charges too soon and run into their own speedy trial issues. There may be other co-conspirators, including perhaps, Lori, Chad, and Melani Pawlowski.

Money appears to be the motivation. Lori believed she was the beneficiary of a million-dollar life insurance policy when her husband, Charles, died. Lori even went as far as to change the password on the life insurance account so that Charles couldn’t access it. Instead, Charles was able to contact the insurance company and secretly change his beneficiary to his sister, Kay Woodcock. When Lori’s brother, Alex, shot Charles in July 2019, Lori was shocked to discover her new life wasn’t going to be underwritten by Charles’s life insurance. Brandon Boudreaux also had a million-dollar life insurance policy, and his ex-wife, Melanie, was still the beneficiary. On October 2, 2019, someone drove the Jeep with Texas license plates that Tylee usually drove to Brandon Boudreaux’s new residence. An unknown assailant took a shot at Brandon out the back window. Brandon could not determine if there was anyone else in the car but said the shooter looked like Alex Cox.

When the attempt on Brandon’s life was unsuccessful, Lori and Chad still had their plan to murder Tammy as a backup. On September 8, 2019, while Lori and Alex took Tylee and JJ to Yellowstone National Park, Chad and Tammy signed documents to increase Tammy’s life insurance policy to the maximum limit. September 8, 2019, was also the last day Tylee was seen alive. Police believe her body was disposed of in Chad’s backyard beginning the next day.

Chad Arraigned and Pleads Not Guilty

Hello Friends!

There is much to talk about today.

Let’s start with Chad Daybell. Chad appeared in court today before Judge Boyce for arraignment. Judge Boyce reviewed the charges and Chad’s legal rights before asking Chad how he pled to each charge. To each one, Chad replied, “not guilty.” Now, these cases truly begin. What happens next? As Judge Boyce noted, this would usually be the time the court would set a trial date. However, given the nature of the charges, he decided to set a pretrial scheduling conference in two weeks, on June 23, 2021, at 9:30 am. Chad’s entry of his plea triggers the 60 days for the prosecutor to file their notice of intent to seek the death penalty. I expect that notice is forthcoming and may even be filed before the scheduling hearing. Once the Prosecution files that notice, the court will appoint an attorney from the death penalty panel. There are twenty-seven lawyers on the state list. I have heard the names John Thomas, and James Archibald suggested, but we’ll have to wait and see. I also expect prosecutors to ask the court to consolidate the earlier destruction of evidence charges with the new murder charges. If the judge consolidates the cases, John Prior will not be able to remain on Chad’s case as the lead counsel. While Lori’s portion of the case is stayed, she will not be required to go forward with arraignment and enter a plea. That means there can’t be a notice of intent to seek the death penalty or a motion to consolidate the case filed for her.

There are some interesting possibilities if Lori remains incapacitated while Chad’s case continues. Chad’s trial may go forward while Lori is still incompetent. If it does, Lori would not be available to testify. Chad could try and blame the whole thing on Lori, but I suspect the Prosecution has ample proof of Chad’s complicity. With Lori incompetent and Alex Cox dead, Chad is the one left twisting in the wind. If the Prosecution files a notice of intent to seek the death penalty, it could be the nudge Chad needs to negotiate a plea deal and tell all. Remember, once Chad is convicted, he no longer can assert his Fifth Amendment right against self-incrimination and would be required to testify against Lori once she becomes competent.

There were two other documents released today. The first is the order of commitment for Lori Vallow Daybell. The order commits her to the custody of the Director of the Idaho Department of Health and Welfare for care and treatment in an appropriate facility for a period not to exceed 90 days. The judge has the discretion to extend that period another 180 days if necessary. It’s unclear whether the “appropriate facility” will be a mental hospital or whether they will continue to treat her in the jail. I think it will depend on whether the state facility can ensure her security and safety if she is placed there. The order goes on to direct that the court be notified immediately if Lori refuses treatment. There is a process in the statute that allows the judge to review a refusal and order medically necessary treatment over the defendant’s objection.

The third document was filed by Mark Means, Lori’s attorney. The document is a motion to hold Melanie Gibb in contempt for not responding to his subpoena for documents. You may recall that Gibb was served with the subpoena as she left the courthouse after testifying before the grand jury. Means claims he has received no response to the subpoena. The motion is a show cause motion, asking the court to issue an order for Gibb to appear in court to show cause why she should not be held in contempt of court. It’s no secret that Means and his “team” are after Melanie Gibb. Means’ motion reports, “The Defense believes that Ms. Gibb has possibly evaded criminal prosecution regarding incidents relevant to the above case(s), has engaged in inappropriate private communications including phone calls, emails and text messages with the above said Prosecution and has made multiple conflicting statements regarding her personal knowledge, action, in actions (sic), in regard to the above case(s) and compliance with the subpoena is the initial first step to address these concerns.” Interesting. Subpoenas are not generally seen as a device to investigate someone’s criminal behavior. They are usually used to gain access to evidence that may exonerate a defendant. Prosecutors and law enforcement use warrants to investigate criminal conduct. It’s not the role of the defense to investigate other people’s crimes; it’s their role to review and follow up on evidence, especially evidence that might exonerate their client. There are times that the investigation may point the defense to someone else as the person who committed the crime.

So what is Mark Means implying? Is he, perhaps, suggesting that Melanie Gibb and not Lori Vallow conspired with Chad and murdered the children? If so, maybe then his inquiry is relevant. On the other hand, if he’s attempting to distract from the case before him by pointing at Melanie and saying, “yes, but look at all the bad stuff she did,” his inquiry may be irrelevant to his case. The Prosecution has an absolute obligation to share exculpatory evidence with the defense. That means that if Rob Wood has information that someone other than Lori committed the crime, he has an obligation to share it. Or is Mark Means intending to use Melanie’s unindicted wrongdoing as a way to impeach her testimony at a trial? The Idaho Rules of Evidence, Rule 404(b)(1) prohibits that. The rule says: “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” IRE Rule 608(b) says, “Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of (1) the witness; or(2) another witness whose character the witness being cross-examined has testified about.”

In other words, Mark Means can’t use any of Melanie’s bad acts to show she’s a bad person who can’t be trusted. However, he may be able to bring in some limited evidence on cross-examination if that evidence proves her character for truthfulness or untruthfulness, such as that she lied under oath about specific things.

It’s looking more and more like Means is on a fishing expedition, and it’s hard to see why. Because Lori’s case is stayed, she can’t enter a plea, and the Prosecution can’t issue a notice of intent to seek the death penalty in her case, which means she is stuck with Means for the time being.

I want to thank everyone who has been listening to my appearances with Lauren Matthias on Hidden True Crime and Tricia Griffith on Websleuths Live. I will be appearing with Tricia tonight at 7 pm PDT and with Lauren on Friday, June 11, 2021, at 7 pm PDT. Here is the link for Friday with Lauren: https://youtu.be/xVOxIjOBD5I Please join us, and please like and subscribe to both channels.

More about incompetence

Well, hello, friends!

Let me guess – you’re feeling a little uninspired and unfocused this week? Yup, me too. When I was practicing, we called it a case hangover. It happened after you’d had a big trial, prepared for a trial that didn’t happen because it was postponed or settled or had a big development in a case. It happens when you’ve been so completely focused on something for an extended period, and suddenly the intense part is over and you feel let down.

There are things to talk about, though. Let’s start with Lori and her incompetency. Here is my understanding of the sequence of events. We began getting inklings that something was amiss during the March 8, 2021 hearing. The intended purpose of the hearing was to deal with objections to experts that were scheduled to testify at an upcoming hearing on the change of venue motion. Instead, Judge Boyce had a lengthy private conference with all the lawyers, which was recorded and sealed. Later, an ex parte order was filed under seal. We now know that ex parte order was an order for a psychological evaluation.

I want to break this down. Be warned, we’re about to get in the weeds, and this newsletter will be LONG. Idaho law says:

18-210. LACK OF CAPACITY TO UNDERSTAND PROCEEDINGS — DELAY OF TRIAL. No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted, sentenced or punished for the commission of an offense so long as such incapacity endures.

18-211. EXAMINATION OF DEFENDANT — APPOINTMENT OF PSYCHIATRISTS AND LICENSED PSYCHOLOGISTS — HOSPITALIZATION — REPORT. (1) Whenever there is reason to doubt the defendant’s fitness to proceed as set forth in section 18-210, Idaho Code, the court shall appoint at least one (1) qualified psychiatrist or licensed psychologist or shall request the director of the department of health and welfare to designate at least one (1) qualified psychiatrist or licensed psychologist to examine and report upon the mental condition of the defendant to assist counsel with defense or understand the proceedings. The appointed examiner shall also evaluate whether the defendant lacks capacity to make informed decisions about treatment. The costs of examination shall be paid by the defendant if he is financially able. The determination of ability to pay shall be made in accordance with chapter 8, title 19, Idaho Code.
(2) Within three (3) days, excluding Saturdays, Sundays and legal holidays, of the appointment or designation, the examiner shall determine the best location for the examination. If practical, the examination shall be conducted locally on an outpatient basis.
(3) If the examiner determines that confinement is necessary for purposes of the examination, the court may order the defendant to be confined to a jail, a hospital, or other suitable facility for that purpose for a period not exceeding thirty (30) days. The order of confinement shall require the county sheriff to transport the defendant to and from the facility and shall notify the facility of any known medical, behavioral, or security requirements of the defendant. The court, upon request, may make available to the examiner any court records relating to the defendant.
(4) In such examination, any method may be employed that is accepted by the examiner’s profession for the examination of those alleged not to be competent to assist counsel in their defense.
(5) Upon completion of the examination, a report shall be submitted to the court and shall include the following:
(a) A description of the nature of the examination;
(b) A diagnosis or evaluation of the mental condition of the defendant;
(c) An opinion as to the defendant’s capacity to understand the proceedings against him and to assist in his own defense;
(d) An opinion whether the defendant lacks the capacity to make informed decisions about treatment. “Lack of capacity to make informed decisions about treatment” means the defendant’s inability, by reason of his mental condition, to achieve a rudimentary understanding of the purpose, nature, and possible significant risks and benefits of treatment, after conscientious efforts at explanation.
(6) If the examination cannot be conducted by reason of the unwillingness of the defendant to participate therein, the report shall so state and shall include, if possible, an opinion as to whether such unwillingness of the defendant was the result of mental disease or defect.
(7) The report of the examination shall be filed in triplicate with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant.
(8) When the defendant wishes to be examined by an expert of his own choice, such examiner shall be permitted to have reasonable access to the defendant for the purpose of examination.
(9) In the event a defendant is suspected of being developmentally disabled, the examination shall proceed with those experts set out in subsection (7) of section 66-402, Idaho Code.
(10) In addition to the psychiatrist, licensed psychologist, or evaluation committee, the court may appoint additional experts to examine the defendant.
(11) If at any time during the examination process, the examiner has reason to believe that the defendant’s alleged incompetency may be the result of a developmental disability and the matter has not already been referred to an evaluation committee for review, the examiner shall immediately notify the court. The court shall then appoint an evaluation committee or shall order the department of health and welfare to designate, within two (2) business days, an evaluation committee consistent with section 66-402(7), Idaho Code.
(12) If the defendant lacks capacity to make informed decisions about treatment, as defined in section 66-317, Idaho Code, the court may authorize consent to be given pursuant to section 66-322, Idaho Code. If the defendant lacks capacity to make informed decisions as defined in subsection (9) of section 66-402, Idaho Code, the court may authorize consent to be given pursuant to sections 66-404 and 66-405, Idaho Code.
(13) If the defendant was confined solely for the purpose of examination, he shall be released from the facility within three (3) days, excluding Saturdays, Sundays and legal holidays, following notification of completion of the examination.

That may explain the timing of the court’s finding that Lori was indigent. The finding would allow the evaluation to be paid for with state funds.

18-212. DETERMINATION OF FITNESS OF DEFENDANT TO PROCEED — SUSPENSION OF PROCEEDING AND COMMITMENT OF DEFENDANT — POSTCOMMITMENT HEARING. (1) When the defendant’s fitness to proceed is drawn in question, the issue shall be determined by the court. The court shall also determine, based on the examiner’s findings, whether the defendant lacks capacity to make informed decisions about treatment. If neither the prosecuting attorney nor counsel for the defendant contests the finding of the report filed pursuant to section 18-211, Idaho Code, the court may make the determination on the basis of such report. If the finding is contested, the court shall hold a hearing on the issue. If the report is received in evidence upon such hearing, the party who contests the finding thereof shall have the right to summon and to cross-examine the psychiatrist or licensed psychologist who submitted the report and to offer evidence upon the issue.
(2) If the court determines that the defendant lacks fitness to proceed, the proceeding against him shall be suspended, except as provided in subsections (5) and (6) of this section, and the court shall commit him to the custody of the director of the department of health and welfare, for a period not exceeding ninety (90) days, for care and treatment at an appropriate facility of the department of health and welfare or if the defendant is found to be dangerously mentally ill as defined in section 66-1305, Idaho Code, to the department of correction for a period not exceeding ninety (90) days. The order of commitment shall include the finding by the court whether the defendant lacks capacity to make informed decisions about treatment. For purposes of this section “facility” shall mean a state hospital, institution, mental health center, or those facilities enumerated in subsection (8) of section 66-402, Idaho Code, equipped to evaluate or rehabilitate such defendants. The order of commitment shall require the county sheriff to transport the defendant to and from the facility and require an evaluation of the defendant’s mental condition at the time of admission to the facility, and a progress report on the defendant’s mental condition. The progress report shall include an opinion whether the defendant is fit to proceed, or if not, whether there is a substantial probability the defendant will be fit to proceed within the foreseeable future. If the report concludes that there is a substantial probability that the defendant will be fit to proceed in the foreseeable future, the court may order the continued commitment of the defendant for an additional one hundred eighty (180) days. If at any time the director of the facility to which the defendant is committed determines that the defendant is fit to proceed, such determination shall be reported to the court.
(3) If during a commitment under this section a defendant who has the capacity to make informed decisions about treatment refuses any and all treatment, or the only treatment available to restore competency for trial, the court shall, within seven (7) days, excluding weekends and holidays, of receiving notice of the defendant’s refusal from the facility, conduct a hearing on whether to order involuntary treatment or order such other terms and conditions as may be determined appropriate. The burden shall be on the state to demonstrate grounds for involuntary treatment including, but not limited to: the prescribed treatment is essential to restore the defendant’s competency, the medical necessity and appropriateness of the prescribed treatment, no less intrusive treatment alternative exists to render the defendant competent for trial, and other relevant information. If each of these findings is made by the court, treatment shall be ordered consistent with the findings.
(4) Each report shall be filed in triplicate with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant. Upon receipt of a report, the court shall determine, after a hearing if a hearing is requested, the disposition of the defendant and the proceedings against him. If the court determines that the defendant is fit to proceed, the proceeding shall be resumed. If at the end of the initial ninety (90) days the court determines that the defendant is unfit and there is not a substantial probability the defendant will be fit to proceed within the foreseeable future or if the defendant is not fit to proceed after the expiration of the additional one hundred eighty (180) days, involuntary commitment proceedings shall be instituted pursuant to either section 66-329 or 66-406, Idaho Code, in the court in which the criminal charge is pending.
(5) In its review of commitments pursuant to section 66-337, Idaho Code, the department of health and welfare shall determine whether the defendant is fit to proceed with trial. The department of health and welfare shall review its commitments pursuant to chapter 4, title 66, Idaho Code, and may recommend that the defendant is fit to proceed with trial. If the district court which committed the defendant pursuant to section 66-406, Idaho Code, agrees with the department’s recommendation and finds the conditions which justified the order pursuant to section 66-406, Idaho Code, do not continue to exist, criminal proceedings may resume. If the defendant is fit to proceed, the court in which the criminal charge is pending shall be notified and the criminal proceedings may resume. If, however, the court is of the view that so much time has elapsed, excluding any time spent free from custody by reason of the escape of the defendant, since the commitment of the defendant that it would be unjust to resume the criminal proceeding, the court may dismiss the charge.
(6) If a defendant escapes from custody during his confinement, the director shall immediately notify the court from which committed, the prosecuting attorney and the sheriff of the county from which committed. The court shall forthwith issue an order authorizing any health officer, peace officer, or the director of the institution from which the defendant escaped, to take the defendant into custody and immediately return him to his place of confinement.


19-2522. EXAMINATION OF DEFENDANT FOR EVIDENCE OF MENTAL CONDITION — APPOINTMENT OF PSYCHIATRISTS OR LICENSED PSYCHOLOGISTS — HOSPITALIZATION — REPORTS. (1) If there is reason to believe the mental condition of the defendant will be a significant factor at sentencing and for good cause shown, the court shall appoint at least one (1) psychiatrist or licensed psychologist to examine and report upon the mental condition of the defendant. The costs of examination shall be paid by the defendant if he is financially able. The determination of ability to pay shall be made in accordance with chapter 8, title 19, Idaho Code. The order appointing or requesting the designation of a psychiatrist or licensed psychologist shall specify the issues to be resolved for which the examiner is appointed or designated.
(2) In making such examination, any method may be employed which is accepted by the examiner’s profession for the examination of those alleged to be suffering from a mental illness or defect.
(3) The report of the examination shall include the following:
(a) A description of the nature of the examination;
(b) A diagnosis, evaluation or prognosis of the mental condition of the defendant;
(c) An analysis of the degree of the defendant’s illness or defect and level of functional impairment;
(d) A consideration of whether treatment is available for the defendant’s mental condition;
(e) An analysis of the relative risks and benefits of treatment or nontreatment;
(f) A consideration of the risk of danger which the defendant may create for the public if at large.
(4) The report of the examination shall be filed in triplicate with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant.
(5) When the defendant wishes to be examined by an expert of his own choice, such examiner shall be permitted to have reasonable access to the defendant for the purpose of examination.
(6) If a mental health examination of the defendant has previously been conducted, whether pursuant to section 19-2524, Idaho Code, or for any other purpose, and a report of such examination has been submitted to the court, and if the court determines that such examination and report provide the necessary information required in subsection (3) of this section, and the examination is sufficiently recent to reflect the defendant’s present mental condition, then the court may consider such prior examination and report as the examination and report required by this section and need not order an additional examination of the defendant’s mental condition. The provisions of this subsection shall not apply to examinations and reports performed or prepared pursuant to section 18-211 or 18-212, Idaho Code, for the purpose of determining the defendant’s fitness to proceed, unless the defendant knowingly, voluntarily and intelligently consents to having such examination and report used at sentencing.
(7) Nothing in this section is intended to limit the consideration of other evidence relevant to the imposition of sentence.

So to break down the statutes, if someone involved in a case, usually the defense attorney, raises the issue of a defendant’s competency, the judge issues an order for an evaluation (that was the March 8, 2021 ex parte order in our case). If the defendant is indigent, the state pays for the evaluation. The state will provide an evaluator, or the defendant may choose one. If the evaluation deems the defendant incompetent, the state may either agree or oppose. If the prosecutor contests the evaluator’s findings, the court will hold a hearing where the prosecutor will have the opportunity to cross-examine the expert about their process and findings. The court can order a second evaluation. A second evaluation would likely focus on whether or not Lori is malingering (faking it). We all know she’s been able to fool evaluators before. The hearing on the prosecutors’ objection, in this case, is scheduled for June 16, 2021, at 9 am.

If the judge finds the defendant incompetent, the defendant is ordered to participate in restorative services. If the defendant refuses restorative treatment, the court must hold a hearing within seven days to determine whether the defendant should be involuntarily treated. The prosecution has the burden to show that the involuntary treatment is necessary, that the prescribed treatment is essential to restore the defendant’s competency, that there is a medical necessity, that the prescribed treatment is the most appropriate, and that no less intrusive treatment alternative exists to render the defendant competent for trial.

If, after 90 days, the defendant is not restored to competence, the court may extend the period another 90 days for a total of 180 days. If at the end of the 180 days, the defendant has still not been restored to competence, the court could find that the defendant is not expected to be restored to competency in the foreseeable future and involuntarily commit them to the state department of health and welfare. If the defendant is committed indefinitely, the judge can, at some point, decide that too much time has elapsed and that it would be unjust to resume the criminal proceeding and dismiss the charge. I don’t expect that to happen. Keep in mind; there is no statute of limitation on murder in Idaho so charges could be refiled at any time if the judge dismissed them.

What can we expect? Judge Boyce will hear the issue of Lori’s competency on June 16, 2021, at 9 am. At that hearing, Rob Wood will question the evaluator on their methods and their findings. As a result of that hearing, Judge Boyce could uphold the finding that Lori is incompetent, could reverse that finding and rule that she is competent, or could order a second evaluation. I expect a second evaluation.

It’s very unusual for a person to be declared incompetent for the foreseeable future and committed. Usually, the person will receive restorative services and be declared fit. Remember that fitness to proceed with trial is a very low bar. The defendant must be oriented to time and place and understand the basics of what is happening and everyone’s roles in the courtroom, nothing more.

Many have asked how Lori’s incompetency could affect Chad’s case. It will undoubtedly have some impact. Remember, we heard that John Prior intended to file a motion to sever the trials in the earlier case for conspiracy to destroy evidence. There could be some very interesting procedural moves coming. First, the prosecutors could file a motion to consolidate the two cases – the first case with the destruction of evidence charges and the second case with the murder charges – into one case. It would make perfect sense from a logistics and efficiency standpoint. If the cases were consolidated, all the charges would be in a single case for each defendant. The cases could still be severed so that each defendant would receive their own individual trial on all the charges. That could fox the defense quite nicely if the prosecutor asks for the death penalty.

As we know, John Prior is still representing Chad Daybell, and Mark Means is still representing Lori Daybell. They are representing their clients in both their cases. The prosecutor has 60 days from the day the defendant enters a plea on the murder charges to decide whether to seek the death penalty. On June 9, 2021, at 10:15, Chad can either enter a plea or ask for more time. If Chad enters a not guilty plea, the state will have 60 days to file their notice of intent to seek the death penalty. Remember, Lori’s case is on hold. If the prosecutor seeks the death penalty, John Prior is not death penalty qualified and could not continue as the lead counsel. He could continue as a second chair. Chad would have to be appointed a death-penalty qualified lead attorney. It’s likely that at that time, Chad would also be declared indigent. If the prosecutor requests that the court consolidate the cases, Prior would not be able to continue as the attorney on the first case.

The same situation would apply to Lori once she’s competent. Chad’s case will likely go forward while Lori’s remains stalled, and it might even be additional justification to sever their trials. The argument will be that Chad shouldn’t be denied a speedy trial because Lori’s case is stalled. That circumstance could produce an even more interesting result. What if Lori is incompetent long enough for Chad to be tried and convicted? He could then be called to testify against her, and because he had already been convicted, he couldn’t invoke his Fifth Amendment right against self-incrimination.

I want to diverge from talking about the case and take time out to talk about the interweb. Our ability to connect - often in real-time - can be extraordinary, but it can also lead to rumors, innuendo, mistakes, and untruths. I established my newsletter and have participated in Facebook groups and YouTube channels to create a platform for my future book. It’s a reality of the publishing world that an author must show a publisher that they are an expert on the subject and that people are listening to them. Your remarkable support for me has allowed my agent and me to begin the process of looking for a publisher. It’s important to me that I remain transparent and credible in my online presence and maintain good relationships with those people I will ultimately be interviewing once the cases are finished. It’s also essential to me that I remain faithful to my own personal and professional ethics.

Truth can be in short supply on the internet, so I want to say this clearly: I have not communicated with any lawyers or the law enforcement officers on this case, and I will not do so until the case is over. I also have not made public things that were said to me in confidence. Once the cases are over, I will be eager to interview everyone involved to understand their perspectives and thought processes. Until then, I will write my newsletter based on what is in the public purview.

There is at least one person who is following and speaking publicly about this case while playing both sides. This person is overtly claiming allegiance to the victims while doing research and directly helping one of the defense attorneys. And yes, I have the receipts to prove my statement. I advised that person not to become involved in that way, and once it became clear to me it was happening, I chose not to engage with that person. It’s not my place to do anything further; I’m a reporter of this story and not an active participant. I know there have been other people who are aware of the situation who have reported it to the prosecutor and perhaps the Idaho Bar. I don’t intend to comment further because and as the old saying goes, it’s no longer my circus or my monkeys.

I hope you all had a lovely Memorial Day Weekend and that we can all recover from our case hangover and move forward with renewed energy. See you soon on YouTube on Hidden True Crime with Lauren and Dr. John Matthias, or with Tricia Griffith on Websleuths, and by the way, I love that you all are calling me “the good Lori.” Cheers.
June 1, 2021

Lori's Incompetent? Now What? May 28, 2021

May 28, 2021

Hello Friends! What a week it’s been for people who are following this case!

First, the indictments, then the first appearances, now the announcement that Lori is not competent. What does it mean? Well, first, it means I was right, which I’m taking a brief moment to crow about.

It does not mean Lori is walking free or being shipped off to a country-club-style mental hospital. It does not mean the charges will be dismissed, and it is not a finding that she is guilty but insane or not guilty by reason of insanity. The remedy is a delay while she receives treatment to restore her to competency.

Mental competency is a reasonably low bar. Lori must understand the role of the judge, the prosecution, and the defense, understand her lawyer’s advice, and understand her rights, such as the fundamental right not to testify. There is very little danger that Lori will escape prosecution, but a high likelihood that her part of the case will be delayed. The logistics of transferring Lori to a mental facility and keep her safe there are tremendous. I expect she will remain in jail, and treatment providers will come to her.

The judge issued a stay in Lori’s case, which means her part of the case is on hold. The judge’s order says prosecutors have objected to the finding that Lori is incompetent and that the court will schedule a hearing. I expect at that hearing, the judge will issue an order directing that the prosecutor get a second mental health evaluation done. I expect that hearing might happen on June 9, 2021, the same day Chad is already scheduled for arraignment. There is also a scheduling hearing that day for the destroying evidence case. Once a second evaluation is complete, the judge will review both evaluations, perhaps hear testimony from both psychologists, and decide on Lori’s fitness to proceed with her trial. Chad has an arraignment on June 9, 2021. That’s when he will enter a not guilty plea, and if he does, it will start the 60-day period within which the state must file their intent to seek the death penalty.

Have a great weekend, and please feel free to email me at info@thelorivallowstory if you have questions.

Indictments, live interview tonight and much more!

Holy indictments, Batman!
Chad and Lori have been indicted for murder!

There is so much to talk about, but I want to acknowledge how momentous and hard this has been for the families before we get into it. I’m honored to be in contact with Kay and Larry and Colby, and Kelsee. I know everyone following the case feels a giddy sense of relief in yesterday’s announcement of the new charges. I share that emotion, but I also understand that this is only the beginning of a long journey for all the victims’ families. The charges were announced on what would have been JJ’s ninth birthday. I think it’s been easy for some to see Chad’s children as villains rather than victims, and I know many have wondered how they could not see what was going on. I’m sure they are asking similar questions of themselves. Let’s remember they are Tammy’s children too, and they lost their mother under the worst possible circumstances. I hope there is grace enough for everyone involved.

So much has happened in the last few days; it’s hard to know where to start. I want to thank Lauren Matthias for having me on her YouTube live stream last night. I know there were many YouTube creators holding lives at the same time, so thank you if you joined us. If you couldn’t, you can catch the recorded episode at Hidden True Crime. Lauren and I will be doing a short live stream on YouTube on Hidden True Crime this evening to talk about today’s developments, and then I will be joining Trisha at Websleuths for a more in-depth chat. I will be with Lauren at 6 pm PDT and hop over to chat with Trisha at 7 pm PDT

I want to start with the indictment and then move on to some other questions that have come up. The grand jury met last week and issued the indictment on Monday, May 24, 2021. There are nine counts. For those of you who haven’t seen the indictment, here’s a quick rundown:

1. CONSPIRACY TO COMMIT FIRST-DEGREE MURDER AND GRAND THEFT BY DECEPTION. VICTIM: TYLEE RYAN

2. FIRST-DEGREE MURDER. VICTIM: TYLEE RYAN

3. CONSPIRACY TO COMMIT FIRST-DEGREE MURDER AND GRAND THEFT BY DECEPTION. VICTIM: JJ VALLOW

4. FIRST-DEGREE MURDER. VICTIM: JJ VALLOW

5. CONSPIRACY TO COMMIT FIRST-DEGREE MURDER. VICTIM: TAMMY DAYBELL

6. FIRST-DEGREE MURDER. VICTIM: TAMMY DAYBELL (CHAD ONLY)

7. GRAND THEFT. (LORI ONLY)

8. INSURANCE FRAUD (CHAD ONLY)

9. INSURANCE FRAUD (CHAD ONLY)

The conspiracy counts list the “overt acts” that the defendants committed in furtherance of the conspiracy. There was some new information in them that we didn’t know before. Here are some of the interesting new facts:

• On September 8, 2019 (the last day Tylee was seen), Chad Googled information about SSW wind direction. Presumably to determine which way smoke might drift.

• On September 8, 2019 (the last day Tylee was seen), Chad and Tammy signed an application to increase her life insurance policy to its policy limits.

• There were text messages between Chad and Lori about Tammy being in “limbo” and her body being possessed by a spirit named Viola.

• Alex Cox researched ammunition and went to a gun range before he attempted to shoot Tammy.

• Alex was located 2.5 miles from the Daybell residence on the day Tammy died.

The grand jury indictment listed the names of the witnesses who testified during the grand jury’s review. That’s typical. The grand jury proceedings are recorded, but the parties who can access the recordings are limited to the prosecution and the defense.

The prosecutor did not wrap the earlier charges of destroying evidence into the new indictment. That case remains pending, but the judge has entered a stay of that case as it applies to Lori Vallow Daybell. The maximum penalty the state can seek for the new charges is life in prison or the death penalty. The state has 60 days from the date the defendant enters their plea to file a notice of their intent to seek the death penalty. Both were scheduled for initial appearances on the indictments today.

Today, both Chad and Lori appeared for their initial appearances. Chad’s hearing was held first. The proceeding was straightforward and brief. Chad confirmed that he had seen a written copy of the indictment and had received written notice of his rights. The judge then reviewed each count and the maximum sentence but didn’t read the entire charge. They set the next hearing for arraignment on June 9, 2021, at a time to be determined. There was already a scheduling hearing set for that date in the earlier case.

Lori’s scheduled appearance was delayed by about 20 minutes. When the hearing began, Judge Eddins indicated that he and all the lawyers had been in a sidebar conference before the open hearing began. Judge Eddins said Mark Means, Lori’s attorney, had asked for a continuance of this hearing, citing extenuating circumstances. Prosecutor Rob Wood objected to the continuance, but the judge granted it over Wood’s objection. Why? Well, here we enter the realm of educated speculation. This is the first time we have seen Lori in nearly a year. She sat very still and wore a mask. We know that there has been something going on that has affected Lori’s ability to participate in her case, dating back a few months. Means requested a stay in the earlier case, which the court granted. Typically, a stay is granted when a person is unable to participate in their case, usually because of a mental disease or defect. I have several newsletters that address the difference between an insanity defense and Lori’s fitness to proceed with a trial. The questions are different. If, as it appears, Lori is not competent to aid and assist her in her defense, the remedy is NOT dismissal of the charges and is NOT a finding that she is guilty but insane or not guilty by reason of insanity. The remedy is a period of treatment to restore her to competency. Mental competency is a fairly low bar. Lori must understand the role of the judge, the prosecution, and the defense, understand her lawyer’s advice, and understand her rights, such as the fundamental right not to testify. There is very little danger that Lori will escape prosecution, but a high likelihood that her part of the case will be delayed.

The court found Lori indigent. What does that mean, and why is it important? The state of Idaho says a person is indigent if their current income is less than 187% of the federal poverty guidelines. Additionally, the court can consider other material factors such as property owned, outstanding obligations and the number and ages of dependents, and the cost of bail. Lori has no income. As far as we know, she does not own any property. Her husband, Chad, had some assets, and Idaho is a community property state, so everything acquired DURING THE MARRIAGE is considered half Lori’s. Note that I emphasized during the marriage. Chad owned his house with Tammy. When Tammy died, her interest in the house passed to Chad before he married Lori. That’s also true for the insurance proceeds he received from Tammy’s life insurance. Bank records obtained after Lori was arrested last year indicated that Chad had about $130,000 remaining at that time. I’m sure that has been eaten up in living expenses and attorney fees. Chad deeded his home to John Prior in lieu of attorney fees. Neither Lori nor Chad has income or assets. Idaho Statute 19-852 outlines an indigent person’s right to counsel. That includes the right to be counseled at every state of the matter, “beginning with the earliest time when a person providing his own counsel would be entitled to be represented by an attorney.” Usually, when the defendant attends their arraignment on the indictment, they are advised of the charges against them and advised that they have the right to counsel. If they qualify for a lawyer, one is appointed for them then. The declaration that Lori is indigent clears the way for an attorney to be appointed to represent her in any future proceeding, including criminal charges or civil commitments. Lori’s attorney, Mark Means, told East Idaho News reporter Nate Eaton that he intended to continue representing Lori. It’s hard to say what that means. The Idaho Standards for Defending Attorneys says:

19-855. QUALIFICATIONS OF COUNSEL. No person may be given the primary responsibility of representing an indigent person unless he is licensed to practice law in this state and is otherwise competent to counsel and defend a person charged with a crime.

And yes, it seems pretty vague. Attorneys representing clients in more specialized cases such as juvenile, child protection, immigration, and mental health commitments must have specialized training.

Attorneys who represent defendants in death penalty cases have much stricter requirements. Unless and until Lori is charged with a crime that includes the death penalty. Mark Means can continue to represent Lori. It appears under Idaho’s rather loose public defense qualifications that Means could be paid by public defense services for representing Lori. Before you object, be aware that the pay for public defenders across the country is abysmal. Prosecutors are usually paid more – sometimes double. Public defenders in Idaho make $50,000 - $70,000 per year. That may seem like a decent wage, but remember, they pay a lot of overhead from that salary. There is a nationwide shortage of public defenders because of this. New attorneys aren’t going into public defense because they can come out of law school so burdened by student loans they can’t afford to live on the salary. Some programs offer loan forgiveness for public defenders, but not everyone qualifies.

If the state pursues the death penalty, neither John Prior nor Mark Means could remain on the case as the lead counsel. Prior could remain on as the assistant counsel. Idaho has something called the Extraordinary Litigation Fund (ELF). The purpose of the fund is to provide funding for extraordinary trial-level services and litigation costs.

Their rules state: “ELF monies may only be used for services rendered for defendants who have been found indigent by an Idaho Court pursuant to Idaho Code or Idaho Court Rules in a case handled by a defending attorney who is on the PDC PD Roster, or otherwise meets Indigent Defense Standards as promulgated by the PDC, at the time the services are sought. The finding of indigency must have been made within the case for which ELF monies are sought.”

Next, let’s talk about Melanie Gibb, Mark Means’ subpoena, and the rumored recorded telephone call. If, as most believe, the recorded call is authentic, it proves that Melanie Gibb knew much more much earlier than she initially told police. The subpoena that she received from Mark Means is interesting. First, her reaction to being served was intriguing. Reportedly, she became furious, tried to refuse the document, and then told the process server to call Rob Wood. Why would she do that? Is it possible that she has some sort of immunity agreement with the prosecution and thought Rob Wood could take care of the pesky subpoena? The contents of the subpoena made it onto social media because Gibb left it in her Rexburg hotel room when she checked out. The subpoena is enormous. In true shotgun style, it asks for virtually every communication Melanie has had with anyone from 2018. I expect Rob Wood to file a motion to quash the subpoena as it applies to any communication he had with Gibb, which I think he will claim is privileged as attorney work product. Melanie will likely have to hire her own attorney if she wants to object to the rest. Melanie isn’t the only one to receive such a subpoena from Mark Means. Heather Daybell, Chad’s sister-in-law, wife of Chad’s brother, Matthew, received one as well.


There were some other good questions in the live chat from last night that I wanted to address.

• If Melanie Gibb committed perjury at Chad’s preliminary hearing, it would be up to the prosecutor to decide whether to charge her. Also, we don’t know if she has any sort of immunity agreement with the state.

• The prosecutor chooses the witnesses to call before the grand jury. Generally, the defense does not attend the grand jury. No provision in the Idaho statute allows the defense to be included, so I do not believe they were there.

• People askes about calling different people as a “hostile witness.” This only applies at trial. For example, the prosecutor might call a person as a witness who is favorable to the defense. In that instance, if the judge declared the person a hostile witness, the prosecution could ask leading questions during their direct examination. It’s not as helpful as the courtroom dramas would lead you to believe.

• It’s likely the autopsy reports were presented to the grand jury. I noticed Brenda Dye was on the witness list, and I know from Chad’s preliminary hearing that she works for the medical examiner.

• What is the status of Chad’s house? Land transfers and estate law can get complicated. At the time Tammy died, she and Chad each owned the house in its entirety. (That’s different than each owning 50%). When Tammy died, it left Chad as the sole owner. Chad was free to dispose of the property any way he wanted. He signed a deed giving his entire interest in the property to his lawyer, John Prior, in lieu of attorney fees. If there is an outstanding mortgage, Prior would assume it. It is permissible and considered ethical for a lawyer to accept property in lieu of fees, either by having a lien against the property or receiving it through a deed. Idaho has a slayer statute. That law prohibits a person convicted of murder from benefiting from their crime. It’s not retroactive, and Chad has not been convicted of anything and is presumed innocent. The Daybell children have no legal basis to sue John Prior to recover any interest in the house. That ship has sailed. And yes, I recognize that many of you feel that’s unfair.

• An attorney can write about their client’s case. It’s dangerous ground because, to interest readers, an attorney will no doubt reveal client confidences. Kirk Nurmi, who defended Jodi Arias, was disbarred after he wrote a book about his work on her case. He’s now pursuing a career in standup comedy.

There is so much more to talk about, but this email is already way too long. Thank you again for your devotion to the case and your interest in this newsletter. Please tune in to Hidden True Crime and Websleuths for more. Rest assured that I will be writing newsletters and making appearances with Lauren and Trisha when there are new developments.

Hidden True Crime - Guest appearance

Good Morning Friends! (At least it’s the morning where I am.)

This short note isn’t really a newsletter, but it does contain some exciting news. I will be appearing with Lauren Matthias tonight on her podcast Hidden True Crime for a Q and A about the case’s legal issues. We’ll be talking about the upcoming change of venue hearing and the subpoena issued to Nate Eaton of East Idaho News. Here is the link:

https://youtu.be/BwKOH47mLBE

You may want to subscribe to Lauren’s channel. I will appear there in the future when there are legal developments.

It’s Friday. Pour yourself a glass of wine and get your questions ready because It’s time to chat. I hope we will see you on the livestream!

A Note of Thanks And an update - May 11, 2021

Whatever it is, the way you tell your story online can make all the difference.

A Little Gratitude and Answers to Questions

May 11, 2021

Good Morning friends!

This morning, I have to take a moment to share my gratitude. When a writer sets out to write a non-fiction book, she has to convince a publisher that she has the chops to write the story. The publisher wants to know, "what makes you an expert, and who else thinks so?" The first part was easy for me: nearly 30 years of experience as both a prosecutor and a public defender and degrees in journalism and creative writing. The second part, "who else thinks so?" was harder. But thanks to all of you, I'm able to answer that questions resoundingly. More than 2600 of you have subscribed to this newsletter. Six hundred people tuned in to my last YouTube live with Lauren Matthias from Hidden True Crime, and the episode has had 6000 views since! I am overwhelmed and so grateful that my content resonates with so many of you. The response has far exceeded my expectations, and I plan to continue appearing with Lauren and with Trisha Griffiths on Websleuths Live as long as they keep inviting me.

I'm working on my book proposal for the Lori Vallow story. My agent and I will be sending it to publishers over the summer. If you would like to let potential publishers know that you like the newsletter content and that you are looking forward to my book, please send those comments to me. I will be including some of those comments in my proposal. If you send a comment, please include your names so that it's clear that they come from real people and not a bot. You can email it to info@thelorivallowstory.com.

Now, on to the real reason you clicked through to this newsletter.

I've had a few questions about the interplay between Fremont County Prosecutor Lindsey Blake and Madison County Prosecutors/Special Prosecutors Rob Wood and Rachel Smith, so let's break that down.

First, let me say I don't know any of these lawyers and can only tell you what I know about how these systems operate generally. Prosecutors are elected, so everything they do has a political calculation.

The former Fremont County Prosecutor Marcia Murdoch asked the Idaho Attorney General's office to assume responsibility for the investigation and possible prosecution of Tammy Daybell's death. It isn't uncommon when a rural prosecutor's office gets a big case that stretches its resources. Marcia Murdoch didn't run for reelection, and Lindsey Blake was elected. Blake decided to ask the Idaho Attorney General for the case back.

On June 29, 2020, after the children's bodies were found, Judge Steven Boyce appointed Madison County Prosecutor Rob Wood as special prosecutor "for the above-entitled case and all related matters." The order goes on, "per an agreement between Fremont and Madison counties to help in special prosecutions because of the close nexus that exists between the cases." Any suggestion that Wood and Blake aren't coordinating seems negated by the language in the court's order.
It's unclear whether Lindsey Blake or Rob Wood filed the request for a grand jury, and it probably doesn't matter. Grand juries are not confined to hearing only one case. In states that use grand juries regularly, a grand jury panel will hear scores of cases during their service. It's likely two cases will be presented to the grand jury. I think Blake will present the case involving Tammy, and Wood will present the children's case. These are big cases and small rural prosecutor's offices. There are more than enough cases to go around and no reason for the prosecutors to be trying to one-up one another, as some have suggested. While the defendants are the same, and some of the facts surrounding the cases may overlap when it comes to presenting motive, these are two separate cases. It makes sense to prosecute them separately.

Now, let's see how good my crystal ball is. I predict that we will see murder and conspiracy to commit murder charges against both Chad and Lori in both cases. I expect Wood to seek the death penalty for the children. I expect both Chad and Lori to blame the actual deaths of the children on Alex. Given Idaho's tepid history with the death penalty, I expect Wood to offer to deal away the death penalty in return for guilty pleas to conspiracy to commit murder and enough other crimes to stack the sentences consecutively and assure they never get out of prison. So will they go for a deal? It's hard to say. I recall Summer's comments to Rob Wood about how Lori might prefer death. They and their attorneys are also well aware of Idaho's history with the death penalty, and they may decide to roll the dice.

I expect the state of Arizona to send the case involving Charles Vallow to their grand jury once the indictments come down in Idaho.

The one wild card in all this? Zulema. We don't know what Zulema got immunity for. It could be something big, like knowing the extent of Alex's involvement, or it may be something less impactful to the case, like helping Alex commit suicide. We just don't know. Here is why discovery is so important. Not only is it essential in preparing for a trial, but it's also essential when assessing a plea offer. If you don't know the full extent of the state's evidence, how can you decide if a plea offer is a good deal? That means that their lawyers should be combing through the mountains of discovery in this case and not appearing on Court TV as an expert in unrelated cases.

And, just an aside, because I can't help myself: the federal charges against Derek Chauvin do not constitute double jeopardy because they are entirely different charges. The state charges were for first-degree murder. The federal charges are that his civil rights were violated and arise from:

The federal Civil Rights Act U.S.C 42 § 1983 :
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any state or territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction of the United States to the deprivation of any rights, privileges or immunities secured by the Federal Constitution and its laws, is liable to the party injured in an action at law, suit in equity or other proper proceeding for redress.

If Chauvin is convicted in federal court, it opens the door for the victims to sue for redress.

Shifting gears a bit, Nate Eaton and Heather Daybell received subpoenas from Chad Daybell's attorney, John Prior, to appear in court on June 9, 2021. This June hearing was set for the court to hear the motion to change venue and a potential motion from John Prior to sever the defendant's trials. It seems that Nate and Heather were both subpoenaed to talk about pretrial publicity. I'm sure Nate was called to talk about the news coverage, and I expect Prior to grill Nate on chartering a helicopter to fly over the property when the children's bodies were discovered. I expect Prior to want to discuss Heather Daybell's letter to her congregation and the impact that had.

Here's the thing: with recent developments, we can expect the court to cancel these hearings. If, as we anticipate, the grand jury issues indictments on or right after May 20, 2021, that will upset all of the current charges. Wood will likely include the current charges in any charges that come out of the grand jury and dismiss the current case. Why do you ask? First, because it makes presenting it cleaner and more efficient because Wood only has to present the evidence in one trial. Second, it restarts the speedy trial clock.

There are exciting developments afoot, and you can count on me to give you the legal perspective. Look for frequent newsletters and watch for me on YouTube at Hidden True Crime with Lauren Matthias or on Websleuths with Tricia Griffiths. Be sure to subscribe to both to get notified of upcoming episodes.

Please remember to keep the families of the victims in your hearts. When we get wrapped up in the intellectual challenge of this complex case, it's easy to lose sight of the fact that Tylee, JJ, Tammy, Charles, Alex, and Joe were all people who were loved and whose absence has left a huge hole in the lives of their loved ones.

And in case I didn't say it clearly enough, THANK YOU for your continued support.

What's so grand about a grand jury?

Hello Friends! There have been some significant developments in the Lori Vallow and Chad Daybell case today.

Last evening, Court TV announced that according to “multiple unnamed sources,” the Fremont County Prosecutor will convene a grand jury investigation into the deaths of JJ Vallow, Tylee Ryan, and Tammy Daybell. The Grand Jury will convene on May 17, 2021, at the Fremont County Courthouse and last until May 20, 2021.

To understand just how important this development is, it’s essential to understand what a grand jury is and how it functions. Grand juries are a quirky holdover from English law that our founding fathers thought an essential check on power. As we all learned in Civics class, our US Constitution’s focus is on protecting individual liberty by providing checks on government power. The use of grand juries arose in England sometime in the twelfth century and developed into a safeguard to protect an individual citizen from the monarchy’s power. Our founding fathers saw it as an essential check on prosecutorial power.

Let’s look at the typical sequence of events. A crime comes to the attention of the police, who investigate and report their findings to the prosecutor. At this point, the suspect may be in custody, or the police may have cited the defendant and released them. The prosecutor reviews the police citation and the facts of the case to determine if the facts support a criminal charge and which crime should be charged.

When a prosecutor decides that the investigation has reached the point where he is ready to file charges, the prosecutor must file an information, a complaint, or an indictment.

• If the crime being charged is a misdemeanor, carrying a penalty of incarceration for one year or less, the prosecutor may charge the crime on his own by issuing a Prosecutor’s Information. Once the prosecutor files an information, the court will either issue an arrest warrant or a notice for the defendant to appear. Typically, defendants in misdemeanor cases are cited to appear rather than arrested.

• If the crime is a felony, the prosecutor has two options: either he must present the case to a grand jury, or the court must hold a preliminary hearing. The purpose of either is to determine if there is sufficient evidence to bind the defendant over for trial. In about half of the states in the US, including Idaho, the prosecutor has the choice of convening a grand jury or scheduling a preliminary hearing. Some states favor one over the other. In Idaho, most cases are presented in preliminary hearings, and grand juries are the exception.

First, let’s look specifically at how grand juries work in Idaho and then discuss why a prosecutor might choose one over the other.

Idaho Criminal Rule 6 covers the Formation of the Grand Jury. Idaho grand juries are made up of 16 qualified jurors. At least 12 of those jurors must be present to constitute a quorum that permits them to deliberate and take action. The Prosecutor files a motion with the court, asking that a grand jury be empaneled. The court issues grand jury summons to a group of citizens, using the process laid out in the Idaho Uniform Jury Selection and Service Act. Potential Grand Jurors are summoned to the courthouse, where a selection process takes place. A district judge conducts the selection process with a prosecutor, a court reporter, and a court clerk present. The court clerk administers an oath to all prospective jurors that each of them swears to answer truthfully the questions put to them as to their qualifications to serve.

The judge will then question potential grand jurors to determine whether they are qualified and any facts that would disqualify them. Once 16 jurors have been qualified, the judge impanels them by asking them to swear the following oath:

Do each of you, as jurors of the grand jury, affirm that you will diligently inquire into, and true presentment make of all public offenses against the state of Idaho, committed or triable within this county, of which you shall have or can obtain legal evidence? That you will keep your own counsel, and that of the other members of the grand jury, and of the government and will not, except when required in the due course of judicial proceeding, disclose the testimony of any witness examined before you, nor anything which you or any other grand juror may have said nor the manner in which you or any other grand juror may have voted in any matter before you? That you will present no person through malice, hatred, or ill will, nor leave any unpresented through fear, favor or affection, or for any reward or the promise of hope thereof? Do you therefore affirm that you will in all your presentments follow these instructions and present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding, so help you God?

The judge selects a juror to act as the presiding juror. That person runs the grand jury. They decide when and where each session will start and end. They take roll of the jurors at the beginning of each session; they communicate with the court and decide if a juror should be disqualified. The presiding juror may issue subpoenas for additional witnesses if a majority of the panel agrees. The presiding juror decides the sequence of witnesses and discharges witnesses when their testimony is finished. They issue the oath to witnesses and advise witnesses if they are the target of the investigation. They review the indictment for correctness and assure it is properly signed. A deputy presiding juror is also selected to fill in for the presiding juror if they cannot attend a session.

The judge will then charge the jury by giving them detailed instructions regarding their duties and their powers and responsibilities. The judge does this orally, and a written copy is also provided to the jurors.

Once the jurors are empaneled and understand their duties and authority, the prosecutor presents their evidence to the grand jury. The evidence may take the form of documents, recordings, or witnesses. If the prosecutor is aware of exculpatory evidence, he must present it to the grand jury. The prosecutor instructs the grand jury on the applicable law and the standard of proof. The standard of proof is that it’s more likely than not that probable cause exists to bind the defendant over for trial. If that sounds like a low standard, it is. Sol Wachter, the New York State Chief Judge, famously once said, “a grand jury would indict a ham sandwich if that’s what you wanted.” The rules of evidence do not apply in grand jury proceedings, and the prosecutor may present hearsay evidence.

In Idaho, Grand Jury proceedings are recorded, either by a court reporter or electronically. The recordings must be made available to the prosecutor, the person charged, their attorney, and anyone accused of perjury before the grand jury. Grand jury recordings are not available to the public or members of the media. Grand jury proceedings are secret, and grand jurors are sworn to keep what they hear confidential. The only people present are the panel, the prosecutor, the court recorder, and any witnesses. The only exception is that a child witness may have a support person present.

The reason Rob Wood and Rachel Smith have asked the court for a grand jury rather than a preliminary hearing must be obvious by now. Compare what we saw at Chad Daybell’s preliminary hearing on the current charges with the grand jury process. The advantage is that grand juries are secret. The secrecy is vital in this case because of all the pretrial publicity. Prosecutors do not want their case made public for fear it will further taint the jury pool with information about the case.

So what happens now? According to Court TV, the court has issued grand jury subpoenas to community members in the jury pool. Those names are often drawn from licensed drivers. The summoned community members will appear at the courthouse, and the court will select and qualify 16 people. Usually, the court randomly selects 16 people from the summoned pool and questions them. If the judge finds a juror isn’t qualified or can’t be fair, the judge replaces that juror with another juror from the pool and questions them, repeating the process until 16 qualified jurors are seated. The jury is then sworn in, and the prosecutor begins presenting the evidence.

The grand jury is scheduled to meet from May 17 to May 20. When he requests a grand jury, the prosecutor tells the court how long he believes it will take to present his case. While it’s an estimate, I think we can expect the grand jury to reach an agreement and issue indictments by May 20, 2021. And yes, I do expect the grand jury will issue indictments. I don’t believe Rob Wood and Rachel Smith would be asking for a grand jury if they didn’t think they could meet their burden of proof.

I’m sure this news comes as a great relief to many of the family members related to the case. It’s important to remember that if the grand jury indicts Lori and Chad, it’s only the beginning of a long road. While it gives the families hope of closure, there are still awful and emotional days ahead for them.

We don’t know what the charges will be or if any of them will carry the death penalty. There will be months of pretrial jockeying, and court hearings before trials are set. I would not expect murder trials until late 2022 at the earliest.

There are continuing rumors about Lori’s mental health. While she may have experienced a mental health crisis while in jail, it appears that the prosecutor believes she is competent and is pressing forward with the more serious charges.

As I’ve discussed before in this newsletter, Idaho does not permit defendants to use the insanity defense. The exception would be if the defendant were so mentally ill that they couldn’t form the necessary mental state (knowingly, intentionally, etc.) to commit the crime. In general, evidence that a person took steps to avoid detection is proof that they knew what they were doing was wrong, and therefore were competent at the time of the crime. The more significant issue is her current mental state. Is she able to understand the nature of the charges against her and the proceedings and aid and assist her counsel? If a person is found to be incompetent to stand trial, there is a process by which the defendant receives treatment to be restored to competency. It’s rare for a person to be found permanently unable to aid and assist. Usually, a finding that the defendant is incompetent is temporary and results in delay, not dismissal.

I know we all will be waiting impatiently for May 20, 2021, and the results of the grand jury.

What Happened at Today's Hearing? April 28, 2021

April 28, 2021

Hello Friends!

Ready to dish about the DNA hearing today? So am I.

I don’t always agree with the things John Prior and Mark Means do, but in this case, they’re right. Oh, I know how it pains some of you when I say that, but it’s my goal to be as fair and
objective as possible.

Here’s what we understand is going on. In July 2020 (right after the children’s bodies were discovered), law enforcement served yet another search warrant on the Daybell property and seized some things from an outbuilding. It appears that there were traces of evidence on the items they seized. The lab is very backed up (most state crime labs are) and had had delays due to COVID-19. The lab is just now getting around to testing the samples. The lab reported some of the finished testing but asked for direction from the DA on testing samples where the test would consume the entire sample. The DA notified the defense, and the defense promptly objected to the DA continuing the testing. According to Wood’s response to the court, he put the testing on hold and asked the defense attorneys to give him the names of their experts within 14 days.

When the state lab tests samples, the defense has the option of having the samples retested by their own lab. In this case, where there is only enough to run a test once, the defense should have the option to have their own expert present to participate in or observe the testing.

Prosecutor Rob Wood has responded to the defense’s objection by telling the court that the DA has no objection to scheduling a time, place, and method for the defense experts to participate in the testing. That’s also typical. As we all know, criminal procedure requires that all evidence, whether inculpatory and exculpatory, be shared between the prosecutor and the defense.

Rob Wood is also right. The state is entitled to test anything they want and is not required to perform any specific test they don’t want, but they must preserve the fundamental fairness of the process. If they opt to test samples, they must make the evidence available for confirmatory testing. If the sample is so small, it will be consumed by the testing, the only option is for both sides to participate in the testing.

The attorneys spent some time in a breakout room with the judge. By the time they came into the public feed, the state and the defense had agreed to ensure the proper procedures are followed in testing the limited sample.

***

“What,” I hear you saying, “is taking them so long to decide about more serious charges?” And the truthful answer is I don’t know. I can only speculate, just like everyone else. I just speculate from a slightly elevated level, based on years of experience and an understanding of the process and procedures. Here are some possibilities.

• The Madison County DA’s Office might be overwhelmed and can’t handle the volume of work associated with this case. Probably true. Rob Wood is the elected DA. He has one Deputy Prosecutor, Troy Evans. They each have a legal assistant. Even though Rexburg, ID, has one of the lowest crime rates in the country, there is still plenty of work to keep two prosecutors busy. According to the internet, there were 127 crimes in Madison County last year (only six violent crimes). In most jurisdictions, about 80% of criminal cases settle before trial. That means the Madison county prosecutor’s office tries maybe 25 cases a year. That’s about a case a month for each lawyer. While that’s not many jury trials, prosecutors do much more than just try cases. Without a big case that is receiving national attention, that workload is more than manageable. BUT toss in a high-profile and extremely complex case like the Vallow/Daybell case, and it quickly becomes unmanageable. And if, as it appears in this case, you have not tried a case of this magnitude before as a prosecutor, it becomes a case of not knowing what you don’t know. This appears to be the reason Wood brought Rachel Smith in pro hac vice as a special prosecutor. Smith has lots of experience with complex cases, and if the workload is the only issue, we should see those charges soon.

• The prosecutor might not have a strong case. We’ve talked about circumstantial vs. demonstrative evidence before. When a case is circumstantial, it means that the circumstances point to only one answer – the defendant’s guilt. Circumstantial evidence is just as valid and persuasive as demonstrative evidence, but it takes more work to make a circumstantial case. For instance, the fact that the children’s bodies were found in his yard points heavily to Chad being involved in destroying or hiding their bodies which were evidence of a crime. But the fact they were in his yard doesn’t prove it without other corroborating evidence. There are many questions that the prosecutor needs to answer, like: exactly when and where were the children killed? How many people were involved? What was the mechanism of death, and who was actually responsible for the act that ended their lives? The exact time and place of death are essential because we need to determine the whereabouts of each potential killer and investigate any possible alibis. The precise mechanism of death can tell us a great deal about motive and the mindset of the murderer(s).

• The investigation might not be done. The fact that the crime lab is just returning test results last week from samples submitted last July tells you something about the speed at which the case is being investigated. Pouring molasses in January in Rexburg might be faster (as my old granny used to say). And let’s remember, we’ve had a global pandemic to complicate both processes and staffing. This lack of investigation could well be contributing to the problems I’ve outlined above.

• One or more of the defendants might be talking/promising to talk/unable to talk. I am still suspicious that something is going on with Lori. Judge Boyce declined to decide Lori’s objection to the pro hac vice objection and left it on hold. Today, very little was said about her. Is it possible that Lori is ill, incapacitated, or talking? Quite possible. Which? Who knows? If she is talking, it could take weeks to get all the information from her and then have law enforcement corroborate each fact in her statement. It appears that Lori is still in jail and not in a hospital. If she’s had, or is having some sort of breakdown, or has COVID-19, she could be receiving treatment in jail. Keeping her in jail would be preferable since securing a prisoner while they are in a hospital or another facility is very difficult and expensive.

***

Knowing that something is going on with Lori, let’s talk once again about mental competence. We’ve established that Idaho doesn’t recognize the insanity defense. A person in Idaho can’t avoid conviction by presenting evidence that because of mental disease or defect existing at the time of the trial, they didn’t understand the nature and quality of their actions or didn’t know their actions were wrong. But an insanity defense is very different from a claim that a defendant is not competent. The competence issue is whether a person can understand the proceedings brought against them and meaningfully participate in their defense by aiding and assisting their attorney. If a person is not competent because they can’t aid and assist, they generally receive treatment until they are competent. The issue of competence isn’t just significant if a case goes to trial; the defendant must also be competent in order to freely and voluntarily enter into a plea agreement.

Remember, this is all just speculation at this point. We don’t actually know what is going on behind the scenes.

Thank you for continuing to read and send me comments. I appreciate each of you for taking the time. Please stay safe and get vaccinated to protect yourself and those around you. It may not be perfect, but it’s the best we have right now.

April 19, 2021 Update. Speedy trial questions

Who has the right to a speedy trial? 

And what the hell is Lifetime doing with these guys?

April 19, 2021

Hello Friends. Here’s a short update.

Yes, this case is DRAGGING on, and no, that’s not unusual. I’ve seen many recent questions about the rules surrounding speedy trials, so I wanted to answer them. The following is an excerpt from State of Idaho v. Jorge Ferreira Tinoco, 2013 Unpublished Opinion 739:

“Idaho Code § 19-3501 requires in relevant part: The court, unless good cause to the contrary is shown, must order the prosecution or indictment to be dismissed, in the following cases: . . . . 1 Batson v. Kentucky, 476 U.S. 79 (1986). 3 (3) If a defendant, whose trial has not been postponed upon his application, is not brought to trial within six (6) months from the date that the defendant was arraigned before the court in which the indictment is found.

The State bears the burden to demonstrate good cause existed for failure to bring a defendant to trial within the statutory six-month period. Clark, 135 Idaho at 258, 16 P.3d at 934; State v. Risdon, 154 Idaho 244, 247, 296 P.3d 1091, 1094 (Ct. App. 2012). “[G]ood cause means that there is a substantial reason that rises to the level of a legal excuse for the delay.” Clark, 135 Idaho at 260, 16 P.3d at 936. The “question of whether legal excuse has been shown is a matter for judicial determination upon the facts and circumstances of each case.” Id. Courts formerly 4 applied the constitutional factors from Barker v. Wingo, 407 U.S. 514 (1972), in analyzing I.C. § 19-3501. See State v. Russell, 108 Idaho 58, 62, 696 P.2d 909, 913 (1985). The Barker factors include: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted the right to a speedy trial; and (4) the prejudice to the defendant. Risdon, 154 Idaho at 249, 296 P.3d at 1096 (citing Barker, 407 U.S. at 530). However, the Idaho Supreme Court abandoned this approach, favoring instead the reason for delay. See Clark, 135 Idaho at 259-60, 16 P.3d at 935-36. Initially, whether good cause exists is left to the discretion of the trial court, but this discretion is not unbridled and on appeal we will independently review the lower court’s decision. Id. at 260, 16 P.3d at 936.”

The opinion outlines the law in Idaho on speedy trial cases, and in general, it follows the law in the other states and the U.S Supreme Court. Speedy trial is the defendant’s right, but the rule is that the defendant can’t delay, delay, delay, and then scream, “you violated my speedy trial rights!”

Several readers commented that Scot Reich, a lawyer, and YouTube commentator, said the people have the right to have defendants tried expeditiously. While I often agree with Scott, this comment is just plain silly. (And, Scott, if you see this post, you know it is.) “The People” (as in the state of Idaho) have only the rights extended to it in the U.S. Constitution through The Fourteenth Amendment:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Our founding fathers designed the U.S. Constitution to protect the individual from the over-reach of the government; it’s not meant to protect, or even define, the rights of the government. In fact, the Constitution is intended to do just the opposite: to limit the rights of the government. In other words, If a right is not explicitly given to the government, the government can’t claim it. There is no specific grant in the Constitution that gives the state of Idaho or any other government the right to bring a defendant to a speedy trial.

The guarantee of a speedy trial is designed to protect an individual from being held and so having their liberty taken for a long period without ever receiving a trial. There is no constitutional basis for claiming the people have a right to try a defendant expeditiously.

Neither Chad nor Lori have asserted their right to a speedy trial. In fact, both have explicitly waived their rights to a speedy trial. Any defense attorney will tell you delay usually works on the side of the defense. Delay allows for the case to develop, and with time, memories fade, circumstances change, and witnesses and evidence disappear or dissipate. There’s also the conventional wisdom that time will allow the media frenzy over a case to die down a bit - but we all know there’s no way that’s going to happen in this case.

I know it’s frustrating, and I feel for Kay and Larry Woodcock and Colby and Kelsee Ryan. I feel for everyone who is waiting for justice, but the case will take as long as it takes, and claiming that the state or even the victims have a right to see Chad and Lori brought to trial expeditiously is just ludicrous.

And on another subject, I’ve been asked what I think about the announcement that there will be a made for Lifetime movie released about the case this summer. I’m sure having glamourous Hollywood actors play them will stroke Lori’s narcissistic little soul no end. I’m concerned, though, that every time one of these programs is released, the jury pool shrinks slightly. The more people see information about the case and formulate opinions, the fewer people will be available to serve as jurors.

April 7, 2021 Status Conference

Hello, friends, long time no see! Or is it hear? Or maybe write?

There hasn’t been much going on in our favorite case lately, and to tell the truth, not much happened today either.

There was a status conference this afternoon. The court scheduled the hearing a while back to discuss resetting the change of venue motion and scheduling any other pretrial motions. During the hearing today, Chad’s attorney, John Prior, and Lori’s attorney, Mark Means, asked for a continuance of the July trial date. Prior reported that there were still discovery matters he needed to talk to the prosecution about and reminded the court that there was still the issue of the change of venue motion to be determined. Prior also said he anticipated filing a motion to sever the trials.

You may remember, I discussed joinder and severance back when the state filed their motion to join the trials. To refresh your memory, it’s typically the state who asks to join cases. They do so for ease and efficiency. The DA wants one trial because it’s easier to get witnesses to appear, it’s more efficient when the DA is presenting the same evidence in a single trial, and there is less chance witnesses will change or recant their testimony. Joinder is all about efficiency.

Severance, on the other hand, is about fairness. It’s nearly always more efficient to try codefendants together, but it’s not always fair to do so. Evidence is admitted in a trial unless its probative value is substantially outweighed by the chance it will unfairly prejudice the defendant or mislead and confuse a jury.

Let’s break that down:
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 crime the defendant conspired to do. The underlying crime doesn’t even have to be completed for the defendant to be guilty of conspiracy because it’s the act of conspiring that is the crime.

There’s an argument to be made that because Lori is only charged with the conspiracy to destroy, conceal, or alter evidence, she could be unduly prejudiced by her case being joined with Chad’s. In Lori’s case, the state doesn’t have to put on any evidence that the crime of destroying, concealing, or altering evidence actually occurred, only that Lori conspired to do it. The state only has to prove there was agreement among Chad, Lori, and Alex. The prosecutor could prove his case against Lori with just text messages or other communication between the conspirators.

Conversely, in Chad’s case, he is charged with actually doing the crime of destroying, concealing, or altering evidence. That means all the distressing information and grisly photos must come in against him. The jury could be so inflamed by that information that they could find Lori guilty of the conspiracy, even if the evidence of her complicity was flimsy. In other words, Lori could be unduly prejudiced by the admission of the evidence against Chad.

The attorneys stipulated (agreed) today to allow either side to present some of their witnesses via Zoom at the change of Venue hearing. They agreed to hear that motion on June 9, 2021. Ironically, that is the one-year anniversary of the discovery of Tylee and JJ’s bodies on Chad Daybell’s property. They did not reschedule the trial date. The court plans to hold a scheduling conference that may not be public. If you listened to today’s hearing, you heard what commonly happens in a scheduling conference. The court throws out a date, and the lawyers report whether they are available on the proposed date. There’s a lot of calendar page flipping if you are old school or scrolling if you’re more tech-savvy. There’s a lot of “sorry judge, I’m not available on that day…” from one or the other of the lawyers until they land on a date when all are free. It’s an excruciating and frustrating process, and the more lawyers there are, the harder it gets. It also can cause confidentiality issues if the lawyers have to discuss how their work with other clients might make them unavailable for this case. For those reasons, these scheduling hearings are often done privately.

I think the next thing we will see publicly is the June 9, 2021 motion hearing. At that hearing, the court will decide the change of venue motion. The judge also said he would deal with any other outstanding motions, such as the outstanding discovery motions and a potential motion to sever the cases. I still think the judge will grant the change of venue. Judge Boyce said today that the state has just started holding jury trials again and that the docket is terribly backed up. That will be the situation all over the state, so I don’t expect a trial on the current charges will be set in the new jurisdiction any sooner than the late fall. It’s possible it could be bumped all the way into next year. And yes, I can hear your tortured screams from here. Remember, these are only the low-level felony charges we're talking about. We’re all in the dark about what’s happening behind the scenes with murder and conspiracy to commit murder charges, which Rob Wood has suggested are coming.

I know I haven’t been very active in writing about this case lately, but rest assured, I am following it carefully. Unlike some tabloid TV shows that will remain nameless, I don’t like to rehash old information, so I only post when there are developments.

But lest you think I’m sitting around my Arizona pool drinking margaritas, I’ll let you in on a little secret: I’m on deadline to have my new book to my publisher by May 1. The book is called the No-Nonsense Guide to Divorce and is due out early next year from publishers Rowman and Littlefield. AND I have another fascinating project that you will all want to hear about as soon as I’m free to announce it, so stay tuned!

Why is Rob Wood Bringing in a big gun?

Hello Friends:

There are a few things I’d like to chat about today. First, let’s talk about some case developments. Rob Wood filed a motion Pro Hac Vice to permit an experienced attorney from out of state to join the cases. Both Madison and Fremont County District Attorney’s offices are small, and the Daybell/Vallow case would overwhelm even the best-staffed prosecutor’s office. Additionally, both counties have populations that are, for the most part, very law-abiding. As a result, neither county has vast experience prosecuting complex crimes. While there has been a great deal of discussion about whether the defense attorneys are qualified to continue representing Chad and Lori if murder charges are filed, we may have overlooked whether Rob Wood has the experience and qualifications to prosecute a death penalty case. As I’ve said before, I think Wood is a careful and thorough lawyer, but sometimes you have to admit what you don’t know. Bringing in an experienced lawyer to advise on the case is smart. It assures that there will be fewer errors that could lead to appeals. I have wondered why Wood didn’t ask for help from the Idaho Attorney General’s office, which would usually be the way to handle a case that exceeded their office’s capabilities. As we saw with the investigation into Tammy Daybell’s death, when the AG’s office steps in, they take over the case. Rob Wood has a lot already invested in the case, and I suspect he wants to see it through. It appears that Rachel Smith is a very accomplished and experienced lawyer who could bring a lot of depth to the prosecution team.

Yes, the move to bring on a seasoned death-penalty attorney loudly telegraphs the state’s intentions. I think we can expect new charges soon, but perhaps not as soon as I originally predicted.

Because of a POSSIBLE next development.

Something is afoot, but it’s hard to say what. I’m about to go deep down a rabbit hole, so stay with me. Please understand this is ONLY SPECULATION. I am looking at the following series of events and trying to read the tea leaves.

• There was a hearing on February 17. The day before that hearing, Lori’s attorney, Mark Means, filed a “Motion For A Status Conference Under Seal.” The judge took up that motion in a breakout session before continuing with the hearing on Means’ Motion to Compel.

• The court initially set a hearing for March 10, 2021, to hear argument about the expert testimony and motions in limine ahead of the hearing on the change of venue coming up on March 22. Without explanation, the court accelerated the hearing to March 8, 2021. As soon as that hearing began, Judge Boyce initiated a private session with Mark Means and Rob Wood. Wood then came back on and asked the clerk to add Chad’s lawyer, John Prior, and the court reporter to the session. At the end of the lengthy private breakout, the judge announced they had put some things on the record and that he had ordered that record sealed. These are unusual moves. The judge said he was vacating all the future hearings and issuing a stay in the case. Stays are uncommon in criminal cases because of the rules surrounding speedy trial rights.

• Prosecutor Rob Wood filed a Motion Pro Hac Vice in both cases, and Mark Means filed an objection. The first objection was that the “Motion is barred (suspended) from hearing as result of previous Court Order(s).” When the video feed went live, the judge reported some “housekeeping” discussions held before they went on the record and the video feed went live. He did not disclose what they discussed. Once on the record, he announced that he would only be ruling on the motion as it applied to Chad Daybell. For reasons that were not apparent, he deferred a ruling on the motion as it applied to Lori. The judge allowed Rachel Smith to join in Chad’s case.

Hmmm. What does it mean? When you put all the pieces together, it COULD mean that Lori is unavailable for some reason. Could that be because she is ill or incapacitated? While I don’t want to “put the cart before the horse,” I think it’s possible.

Lastly, I want to get on my soapbox for a moment. We are all following this case to understand the story and see justice done for the victims. Recently, a group following the case invited followers to make a list of every person who was somehow culpable for the children’s deaths, including anyone who could have raised a red flag about Lori’s behavior. The list included people like Charles’ Vallow’s ex-wife and Lori’s adult son, Colby Ryan. I objected and was advised by the administrator to “scroll and roll,” and to keep my opinion to myself. I will not be participating further in that group. To quote my French grandmother, “les opinions sont comme des connards. Tout le monde en a un,” and I have an opinion too: Lori Vallow had a moral and legal responsibility to care for her children. Up until recently, most people who knew her believed that she was fulfilling that responsibility. Yes, there may have been some cracks that appeared in her perfect-mother persona. There may have been red flags. But let’s be clear: NOTHING that happened to Tylee and JJ is the fault of anyone else but Lori Vallow and the people she conspired with. I’m grateful for the thoughtful and insightful people who subscribe to my newsletter and engage me in conversation. I refuse to engage in victim-blaming, and I refuse to condone others who do. Sitting on the sidelines like a bunch of armchair quarterbacks assigning blame is small, cowardly, and unfair. The victims, in this case, deserve support, not scorn.

Today's Filings

Hello Friends. Yes, there are a couple of things happening that seem to signal big changes. First, John Prior filed to dismiss his motion to dismiss the case. Confusing I know. Prior filed the motion right after the preliminary hearing, claiming there was insufficient evidence to bind Chad over for trial. That motion has been pending since. It was scheduled to be heard at the same time as the motion to change the venue, but that hearing, on March 22, was vacated. What does that mean? Probably that Prior thinks having a hearing on his motion would be pointless. And why? Because something is going to happen to the present charges.

And, the bigger deal: yesterday, Rob Wood filed a motion Pro Hac Vice. This is a motion for permission to bring a lawyer in who is not licensed in the state. Judges can allow a qualified lawyer who is not a member of the Idaho bar to represent a defendant in a specific case. According to East Idaho News, Wood has asked to add Missouri attorney Rachel Smith to the case. Smith is an experienced death penalty attorney. The motion asks that Smith be permitted to work on “any investigating or resulting case or charges regarding the conduct of the defendants connected with the crimes against Tylee Ryan and Joshua Vallow in Idaho.” According to Wood, Smith is a veteran prosecutor with 25 years of experience including more than 100 homicide and death penalty cases.

There is no question that the Daybell cases have placed a great deal of strain on a small prosecutor’s office. Still, it’s kind of unusual to bring in an out-of-state lawyer rather than ask for help from the state Attorney General’s office.

What does this mean? They’re asking to bring in the big gun to help with the murder charges. The other interesting bit is that Judge Boyce put the March 22, 2021 hearing back on the docket at 3:00 for a hearing with the subject redacted. I suspect this hearing is to determine whether Ms. Smith can join the prosecution team. If the judge permits Smith to join, I expect we will see murder charges shortly after that March 22, 2021 hearing.

That’s my interpretation of the tea leaves – stay tuned.

What is Ex Parte and Who Filed the Motion?

Yesterday, a filing appeared in the court’s database that has everyone confused and wondering. I’ve been thinking about it, and I’m ready to give my moderately-educated guess.

Let’s remember, all we can do is speculate at this point because the details are under seal. The filing is an ex parte motion for a protective order. There are a few different types of protective orders, and this is what seems confusing. Ex parte is a Latin term that means that only one party appears before the court. Ex parte actions are unusual in court because our system generally frowns on any sort of unilateral action, favoring full representation. One exception is if the motion is filed on an emergency basis. The most common time this happens is if the person filing the motion is in danger, such as cases of domestic violence or stalking. The other exception could be when the parties have already agreed to something, and only one party is necessary to file the action. It’s is more typical when the thing being protected is evidence rather than a person. The procedures and uses of ex parte motions vary from state to state. Protective orders are often used to ensure that sensitive evidence isn’t disseminated beyond the lawyers.

All we really know is that someone filed an ex parte motion asking for a protective order and then asked that the substance of the motion (including who filed it, what or who is being protected, and why) be sealed. The court held a hearing on March 8, 2021. The hearing’s stated purpose was to deal with expert witness issues set to testify in the upcoming change of venue hearing. Instead, the judge asked for a private meeting with the lawyers. The judge had the meeting recorded by the clerk but then ordered that the recording be sealed. After that meeting, the judge vacated all upcoming hearings set a status hearing in April.

So here is my best guess: Rob Wood filed the ex parte motions. Many people have sleuthed out that the current filings look a lot like others filed by Wood. Also, each defendant’s filing occurred nearly simultaneously, which would be unusual from what we’ve seen of other filings by each defendant’s lawyer. I’ve discussed Tammy’s autopsy in an earlier newsletter and my belief that Wood has communicated the findings to defense attorneys, Prior and Means. Because Tammy’s autopsy has no real relevance to the current charges, he was under no obligation to turn over copies to either lawyer. He is obligated to turn over the children’s autopsies once they are received.

As you might recall, Wood told Lori’s sister, Summer, that Tylee’s autopsy could take quite a while because the FBI crime lab was very busy and because of the state of the remains. I think Tylee’s autopsy is finally back. I think Rob Wood informed the defense attorneys before the March 8 hearing, and I think the private discussion with the judge included an agreement that Wood would release the reports as soon as there was a protective order in place. A protective order is necessary to ensure the document isn’t released to the public, so that the jury pool isn’t tainted by potentially inflammatory information.

I think there was also discussion about the findings and Wood’s intention to file new charges. The motion for the protective order was filed ex parte because all three attorneys agreed to it before it was filed. The judge vacated all the future hearings because there is no need for them. I think we have finally reached the point we’ve all been waiting for, and I expect we will see new charges very soon. Perhaps even next week. New charges would make all the upcoming procedural motions, such as the change of venue motion, irrelevant because I expect Wood will dismiss the current charges and refile them with the murder charges.

These are only guesses based on my experience and knowledge because no one really knows, but I think all will be revealed soon.

Why Did the Judge Vacate Today's Hearing After a Private Conference?

Well, well, well. What does it mean?

Fremont County moved up the hearing on Prosecutor Rob Wood's motion to compel discovery from March 10 to today. I'm not sure why they changed the date, but I can assure you it's not unusual. Court hearings are carved in Jello, not in marble. In advance of the hearing, both sides filed motions and briefs. Let's see if we can boil down the issues.

As I wrote in my last newsletter, expert witnesses are treated differently than lay witnesses. The basis of all the rules of evidence and the rules of criminal procedure is to present the most accurate, credible, and reliable information to the finder of fact. The finder of fact can either be the judge or a jury. If a person presents themselves as having special knowledge or skill in a particular area, it carries more weight with the finder of fact. Experts can express opinions, and lay witnesses can't. That's why we want to be sure that the expert's credentials are the real deal and why we want to discover and possibly impeach them with any information that might indicate bias. If, for example, the case involves a vehicular homicide and the defense hires an accident reconstruction expert, we want to know what education makes him an expert, how long he's been an expert, if he teaches others to be experts, or publishes articles about his expert knowledge. We want to know if he only takes cases from the defense side or is often hired by either side. We want to know how many times he's testified in court. We want to know how he reached his conclusions and if he's offering diagrams or computer simulations, who prepared them.

The rules require that each side discloses to the other any expert witnesses they plan to call and reveal their educations, experience, and any articles or books they have published, and their specific report about their evaluation of the issues in the case. In the Vallow-Daybell case, the experts for the hearing on the motion to change venue are intended to testify whether there is bias in the Fremont County community. There seem to be several potential witnesses.

Early in the case, the defense employed a couple of people to take the community's temperature. One was Andrea Schaat; the other was Joe Adriany. Ms. Schaat doesn't have an online presence that I could find, so there's no way to know her qualifications. Joe Adriany is a private investigator. Mr. Adriany operates something called Columbo Investigations. He doesn't have a website either. From the disclosures provided by the defense, it appears Mr. Adriany has law enforcement experience but no credentials related to determining bias in a community. Why hire these people? The most straightforward answer is probably money.

Research surveys usually cost between $35,000 and $100,000, depending on the survey size. Here is the problem: survey results have a very short shelf-life. A single headline or new development can change public opinion and render an expensive survey irrelevant. You don't want to peak too soon. There were likely problems finding the money for a study. The ultimate situation just before the hearing was that Mark Means had given Rob Wood the information he was seeking. He provided Rob Wood with the name and the qualifications of the person doing the study. However, Rob Wood had also filed what are called Motions In Limine. And, yes, this is yet another case of lawyers and judges using Latin phrases to make it seem they're smarter than you. A motion in limine is a motion to limit evidence or testimony being introduced. It's a preemptive strike. It's to keep the information from ever being introduced at the hearing or trial. Rob Wood wanted to limit the defense from calling either of the first to informal pollsters.

So here's the weird part: first, the judge called Mark Means into a breakout room (the Zoom equivalent of going into chambers with the judge). A few minutes later, Prosecutor Rob Wood let the clerk know that the judge asked for Wood, Chad Daybell's attorney John Prior, and the court reporter to join the private conference. After several minutes, the court resumed the public zoom session and announced that the private conference had been recorded and the judge was ordering it sealed. He then announced that based on that conference, there was good cause to vacate today's hearing and the hearing set for March 22, 2021. The court set a pretrial scheduling hearing for April 7, 2021, at 1:30. The March 22 hearing was set to hear the motion to change venue and Mean's Motion to Dismiss. Now we're left to read the tea leaves and decide what this means. There are a few possibilities.

• The parties agreed to the change of venue, and the hearing wasn't needed. But if that were the case, why seal the record? It would be more likely that the judge would simply announce the agreement.

• The defendants have agreed to a plea. Possible. If so, we can expect a motion to change their plea from not guilty to guilty and be sentenced. Possible, but a bit unlikely. Why would either plead to these charges when Rob Wood has made clear murder charges are coming? I can't imagine any prosecutor making a deal not to prosecute murders in return for pleas in these low-level felonies, so what would they gain by pleading guilty?

• My best guess? New charges are coming that will make all these hearings irrelevant. Tantalizingly possible. What good would it do to have all these hearings IF the state intends to dismiss the current charges after they are included in a new indictment that included murder charges? I've said all along that I believe Rob Wood was waiting for Tylee's autopsy report. I think the way her body was disposed of is a critical part of Wood's case, and I expect the charges to reflect it. I also realize that grand jury proceedings are probably pretty cumbersome under the rules about COVID-19. I think today's events may indicate new charges are imminent.

Why Did Rob Wood File That Motion to Compel Discovery?

Hello Friends! Forgive me for being just a little missing in action the past few days, but I was working on a deadline on another book project. I also took some time to revise the newsletter format based on some feedback from readers. Thanks for the suggestions.

Before we dig into the case, I want to acknowledge that it’s been a tough couple of weeks for many of our friends in the southern and eastern parts of the U.S. People in Texas were particularly hard hit by winter storms, freezing temperatures, and lengthy power outages. Please keep them in your thoughts and donate to relief organizations if you can. Thankfully, the COVID-19 numbers are edging down, and vaccination roll-outs are happening. Please take care of yourselves and each other.

A few things have happened that deserve attention.

The long-awaited and much-postponed hearing on the defense motion to change venue and motion to dismiss is scheduled for March 22, 2021, at 9 am. Before Means and Prior filed their motion, they had a survey completed in the Rexburg area to gauge the public’s attitudes about the case. People who live in Rexburg reported that people were canvassing the area, asking questions about people’s thoughts about Lori and Chad. The results of that survey were used to justify their motion to change the venue.

The rules of evidence treat expert witnesses differently. If either side wants to call an expert, they have to disclose the witness’s identity and provide the other side with the expert’s credentials so that both sides can investigate the expert’s qualifications. The rule makes sense from a fairness standpoint; finders of fact (the jury or the judge) naturally place more trust in an expert, so before that person testifies, both sides should have the opportunity to vet the expert thoroughly. One of the most often asked questions is whether that expert has a bias for either prosecution or defense.

The expert who completed the survey for the defense does not want their identity made public. Perhaps understandable in such a high-profile case, but if you operate a business that routinely assesses the public’s attitudes in these types of cases, maybe you should expect your name to be public. That makes me wonder who this expert is. Nonetheless, the solution to the problem isn’t for the defense attorney to keep the person’s identity secret; the answer is to ask the judge to issue a protective order that seals the witness’s identity. Neither defense attorney did so.

Rob Wood filed a discovery request asking for information he’s entitled to receive. John Prior’s response to Wood’s request for the names, addresses, and qualifications of any expert witness he intended to call at the March 22, 2021 hearing was “none.” Likewise, in response to Wood’s request for the data the expert relied upon to form their expert opinion, Prior replied, “None.” Curious. The defense filed the motion to change the venue. It’s their burden to prove that their clients can’t seat a fair and impartial jury in their jurisdiction. Either they must reveal the name of the polling company, even if they do it under seal, or they can’t call that expert at the hearing. If they call the witness during the change of venue hearing, the witness’s identity can’t be kept confidential. By design, court proceedings are public. It’s another Constitutional protection against government overreach. As U.S. Supreme Court Justice Brandis so famously said, “sunlight is the best disinfectant.”

The situation feels like some sort of falling out with the person or company that performed the poll, and it’s clearly a falling out neither Means nor Prior wants to be aired in court. So, what happens if they don’t call the pollster? They must rely on other information to prove that the jury pool in their jurisdiction has been so tainted that their clients can’t get a fair and impartial jury of their peers. Considering the breadth of the coverage, they may not find it difficult to put on a case that doesn’t include the survey, but that will depend on the judge. Proving that information about the case has been widely and frequently disseminated is not the same as proving the effect the coverage had on the listener or viewer’s opinion. Rob Wood’s motion to compel discovery is set for a hearing on March 10, 2021, at 9 am.

Speaking of national coverage, several outlets have released programs about the case. NBC Dateline has a new podcast series called Mommy Doomsday. ABC just released a new 20/20 episode called The Gravedigger’s Wife. Neither reveal any new information nor feature any new interviews with anyone close to the case. The lull in the action seems to be inspiring many outlets to recycle information to keep people interested.

It’s a pandemic. We’re still stuck at home, and we’re restless. It’s natural to want things to get moving, and you’re right – Rob Wood is taking his own sweet time. But it may be time well spent, and it’s time he has in abundance because Lori and Chad are both in jail. We’re all wondering what’s taking him so long. I continue to believe it’s because he is waiting for the children’s autopsy reports. I suspect the report on JJ’s body is finished, although it would not surprise me if the toxicology reports were not completed (we’ve talked before about why they take so long). I think the real hold-up is on the results of Tylee’s autopsy. In his conversations with Lori’s sister, Summer Shiflett, Rob Wood revealed that Tylee’s remains are being analyzed at the FBI’s crime lab. He told Summer that the FBI has many cases and that their analysis might take extra time. Why wait? I think it’s because of the awful way Tylee’s body was disposed of. I believe Rob Wood intends to use it to support additional charges and as support for seeking the death penalty.

I’m wishing you all thoughts of spring.

What Happened in the Discovery Hearing?

February 18, 2021
 
Hello friends:
 
Yesterday's hearing in the Vallow/Daybell case deserves some explanation. These procedural hearings can be pretty mystifying and could require us to break out the ghillie suits again and get in the weeds. Let's break it down.
 
The hearing was scheduled to address Mark Mean's Motion to Compel Discovery. At the last minute, Means filed a motion for a pretrial status conference and asked that it be done "under seal." The second part of the motion was harder to understand. Some interpreted it as Means not realizing yesterday's hearing was scheduled. Others, myself included, interpreted it to mean that Mark Means was asking the judge to reconsider the denial of his motion to reconsider the issue of disqualifying Rob Wood. 
 
After the judge decided there were no grounds to disqualify Wood, Mark Means filed a motion asking the judge to reconsider that decision. The judge was within his authority to deny the motion to reconsider without having a hearing. The judge ruled that the Rules of Criminal Procedure did not allow a motion for reconsideration (they are allowed under the civil rules) and denied the motion. I think the Means expected the court to set a hearing on the motion, and the second paragraph of Mean's last-minute motion was asking the court to reconsider that denial so he could submit his memorandum in support of his motion to reconsider. Hopefully, that makes sense. 
 
Yesterday's hearing was about discovery, so let's do a quick discovery refresher. 
 
Idaho Rule of Criminal Procedure Chapter 16 controls discovery in criminal cases. In 1963, Brady v. Maryland, 373 US 83 became the law of the land when the supreme court ruled that prosecutors must share all evidence and all information that could be expected to lead to admissible evidence with the defense, including exculpatory information. Before that time, exculpatory information, which is information that could lead to proof that the defendant is innocent, was sometimes withheld from the defense, either by prosecutors or law enforcement. 
 
IRCP chapter 16 requires that "as soon as practicable after filing pf charges against the accused the prosecuting attorney must disclose to defendant or defendant's counsel any material or information in the prosecuting attorney's possession or control, that tends to negate the guilt of the accused as to the offense charged or that would tend to reduce the punishment for the offense." Paragraph (b) says that the prosecuting attorney must, upon written request by the defendant, disclose copies or portions of them that are in the prosecution's control and that are material to the preparation of the defense or intended for use by the prosecution at trial or belong to or were procured from the defendant in the following categories:

• Statements of Defendant

• Statements of a Co-Defendant

• Defendant's prior record

• Documents and Tangible Objects (books, papers, documents, photographs, tangible objects

• Buildings or places

• Reports of examinations or testing.

Rule 16 paragraph(b) (6) was the section most discussed during the hearing. It reads: "On written request of the defendant, the prosecuting attorney must furnish to the defendant a written list of the names and addresses of all persons having knowledge of relevant facts who may be called by the state at the trial, together with any record of prior felony convictions of any of them that is within the knowledge of the prosecuting attorney. The prosecuting attorney must also furnish on written request the statements made by prosecution witnesses or prospective prosecution witnesses to the prosecuting attorney or the prosecuting attorney's agents or to any official involved in the investigation of the case unless a protective order is issued…"

Rule 16 (g) outlines Prosecution Information Not Subject to Disclosure. The rule makes clear the that following are not discoverable by the defense:

• Legal research or research of records

• Correspondence

• Reports or memoranda to the extent they contain the opinions, theories, or conclusions of the prosecuting attorney or members of the prosecuting attorney's legal staff.

• The identity of informants unless they are testifying at trial

IRCP 16 doesn't define what a statement is. Because the rules about criminal discovery often mirror the federal rules, it's sometimes helpful to look at what Federal Rule of Criminal Procedure Chapter 16 says. The Federal rules define a statement as a written or recorded statement or any relevant oral statements made by the defendant before or after an arrest in response to a government agent's interrogation. Most definitions center on a statement's formalized nature, such as a statement given orally to the police and formally documented in a police report. The Federal rules don't mention witnesses, but if we use the same definition, a witness statement is made in response to a government agent's interrogation.

Notes on a cocktail napkin are not a statement, but they may be attorney work product. The prosecutor must turn over all statements to the defense, but he does not have to turn over what is considered attorney work product. Lawyers like words. Lawyers like notes, and plans, and outlines, and more notes. That's why yellow legal pads exist. A lawyer's files are FILLED with notes, and research and thoughts, and doodles. I'm not kidding. I hired my daughter and a summer intern to digitize my old files one summer. They were entertained for hours, laughing over my notes and doodles. None of those things are discoverable to the defense. Rob Wood is entitled to strategize, theorize, and write snarky comments in the margins without fear that his thoughts will be disclosed. So is Mark Means.


When law enforcement meets with a defendant or a witness, they take a statement. That statement has a formalized process. It's written by an officer, then reviewed by superiors before it is finalized and shared with the prosecutor. Police reports are usually admissible hearsay because that process gives them an indicium of reliability. As Rob Wood points out, "every conversation the prosecutor has with a witness doesn't necessarily produce a statement."

Prosecutors meet with witnesses and victims all the time. They occasionally make notes of their meetings, but not always. The contents of those notes and their recollections of the conversation are not statements; they are work product and not subject to discovery. Suppose a prosecutor meets with a witness and the witness says something different than what she said to law enforcement. In that case, the prosecutor will ask law enforcement to reinterview the witness and get to the bottom of the conflicting statements, including interviewing corroborating witnesses. Once that is done, law enforcement will file a supplemental police report, which is discoverable to the defense.

Much of what Mark Mean is asking for is work product. Means is entitled to any and all formal statements made by the defendants or any witnesses that the prosecutor intends to call at trial. He's not entitled to dig around in Rob Wood's head to mine his thought processes.

Mark Means argued that since Wood failed to file a response or object to the discovery request within the allotted time, he waived his right to object. He also argued that Wood having contact with witnesses makes Wood a witness himself. The law says that the court can allow objections after the time limit for "good cause." Means argues that Wood is the "holder of the statements and has an obligation to produce them." Means contends that in his experience in criminal law, prosecutors very rarely initiate contact with witnesses. It simply isn't true, so we can only surmise that Mr. Means' criminal law experience is still very limited.

Wood argued that there was good cause to find his objections were not waived, and even if they were, Means wasn't entitled to the information. First, he argued that the discovery requests were illegal and improper and that they were outside the scope of IRCP 16. He made four points in his argument that supported the court finding there was good cause to allow his objections outside the time limit. 1.) the requested materials are outside the scope of IRCP 16; 2.) that the material is work product; 3.) that it's an attempt by Means to turn a "mere eight-day delay" into the authority to obtain information they would not otherwise be entitled to; 4.) that Means was trying to relitigate matters that the court had already decided. Rob Wood filed a brief with the court outlining the specifics of his arguments, which we didn't have access to.

I think Wood is correct that Means is making illegal requests for work product. Wood also points out that the procedure to get information not covered by Rule 16 is to file a motion not to make a discovery request. It's an argument that the judge discounts and says he will consider the discovery request and motion as if they had filed a proper motion.

John Prior's concern is that Wood is determining what information is relevant. Yes, and all prosecutors do that. Wood is only required to turn over information relevant to the current charges. Information such as Tammy Daybell's autopsy is not relevant to the current charges of destroying and conspiring to destroy evidence. Prior said he intends to file his own motions regarding discovery. He also says he doesn't think that Rob Wood can be trusted to turn over relevant discovery, and the reason is Summer Shiflett. But earlier, he said that Wood did all the talking in the interview, so I guess we can infer that what they really want is everything Rob Wood ever said to a witness.

Here is an interesting tidbit from the hearing. Wood and Prior had an exchange about a letter. Prior said he intended to file a motion about the contents of the letter. Wood claims he made a Brady disclosure to Prior and said a report would be coming. Prior asked for audio or video recordings, and Wood said he would send them if they existed. The following are good examples of Brady disclosures:

• An agreement not to prosecute a witness in exchange for the witness's testimony

• Any exculpatory evidence that proves or suggests the innocence of the defendant

• Any offer leniency agreements made with a witness

• When a photo of the defendant does not match a victim or witness's description

• Law enforcement dishonesty

 
What could that Brady disclosure have been? Perhaps the immunity agreement with Zulema Pastenes? I considered that it might be Tammy's autopsy, but then why would Prior ask for audio or video recordings? There's nothing definite now, but we should keep our ears open for more information. 
 
Here is the crux of the matter: Means and Prior don't care about what the witnesses said to Wood; they want to know what Rob Wood said to the witnesses. I think Wood's conversations are work product. They are no different than his notes and doodles. 
 
So, what can we conclude from the hearing? Rob Wood was eight days late responding to Means' request for discovery. The rules are clear; if you don't object within 14 days, your objection is considered waived. But it only means that you can't object to producing material that is otherwise discoverable. It doesn't mean that the defense gets anything he wants. The fact that Wood waived his right to object does not suddenly make his work product discoverable.  
 
The judge said he would not order the production of material outside the scope of Rule 16.  The judge granted Mean's motion to the extent that he ordered Rob Wood to produce a response to the question as to whether the prosecution has discussed the case with the people on the defense's list. He did not require Wood to disclose his notes, only statements. He also said that there was no basis for sanctions (usually ordering one side to pay some of the other side's attorney fees). It means Wood should give the defense a list of the people, if and when communicated with them, and perhaps a summary of the conversation. Wood could satisfy that requirement by reporting that he met with a witness on a certain day and that the witness didn't make any statements that were not in their previous reports prepared by law enforcement. 
 
Many people want to understand Mark Means' motivation. I see a lot of nasty, uncomplimentary comments about both lawyers on social media. I've said this before, but I'm going to keep saying it. The lawyers are not their clients. They are not responsible for their client's reprehensible behavior. They are responsible for ensuring their client's constitutional rights are protected. Making derogatory remarks about their appearance or their demeanor isn't helpful. Honestly, it disappoints me because I think this community is kind and smart and genuinely interested in this story. I realize this case engenders a lot of emotion. Still, I hope my community will direct that emotion constructively into understanding the case instead of making fun of the people involved. In my opinion, Mark Means thinks in very black and white terms. Nuance may not compute for him. It seems that he doesn't accept "that's how things have always been done" as a good enough answer. While it may lead him to tilt at windmills sometimes, it's also how many important advances in legal theory came about. Mark Means is not stupid. He may be somewhat naïve, but I think he has good intentions. I think he likes his client, thinks she is a victim and wants to do the best job possible for her. Could Lori Vallow and Chad Daybell have better lawyers? Probably. For now, though, these are the lawyers they have. 
 
Sorry, this newsletter had to be so long to pack everything in. Let's stay safe, kind, and grateful out there.    

Who is Filing All These Documents?

Hello, friends! First, I need to say THANK YOU for subscribing and following me. More than 2000 people have signed up to receive the newsletter!

The last week has seen a flurry of documents filed between the parties, and two hearings are coming up that I want to talk about.

Let’s jump in with a big shout-out to Fox 10 Phoenix’s Justin Lum for always being first to post new documents.

Two hearings are coming up. The recent documents relate to those upcoming hearings. There is a hearing tomorrow (February 17, 2021, at 9:30, am) on Mark Mean’s Motion to Compel Discovery and a hearing on March 22, 2021, at 9:00 am to take up the Motion to Change Venue as well as Mean’s Motion to Dismiss.

Mark Means has been alleging, complaining, and generally bitching about discovery from early days. Here is another place where his inexperience as a criminal attorney shows up. In civil cases, attorneys have to dig for evidence and information. There is no affirmative duty to exchange discovery and opposing counsel doesn’t have to volunteer any information the other side doesn’t ask for. That means that the discovery process in civil cases is more adversarial and prone to “gotcha!” moments.

In criminal cases, the law says that both sides have a duty to turn over all relevant information, including information that tends to prove the other side’s case, even information that proves the defendant isn’t guilty. The U.S. Supreme Court first ruled that in Brady v. Maryland, 373 US 83 (1963). The court’s ruling was later codified in the laws of all the states, including Idaho. In most cases, a defense attorney might send a blanket request at the beginning of the case for all discovery pursuant to the law. The duty to turn over discovery materials is ongoing, so any time the prosecutor gets new information, it has to be turned over to the defense. Not all defense attorneys even send discovery requests, but it’s a good idea to document your request in case there are discovery questions later on appeal. Usually, discovery questions in criminal cases are resolved with a phone call.

It seems that Mark Means is approaching discovery as a civil attorney would rather than as an experienced criminal lawyer would. We have not heard any complaints from Chad’s attorney, John Prior, about discovery problems. Mark Means seems to believe that information is being withheld or provided to John Prior, but not to him. Prosecutor Rob Wood’s answer is contained in his Response to Supplemental Declaration of Counsel Mark L. Means in Support of Motion to Compel. In the document, Wood lays out all the facts regarding the discovery questions. Means claimed that John Prior had received a hard drive filled with information that was not also given to Means. Wood explained that his office was unsure whether some electronic discovery and forensic reports had been provided to John Prior, and out of an abundance of caution, they re-sent the files to him on a hard drive. Wood pointed out that Means had previously received this same information as part of the earlier Madison County case against Lori (that would be the earliest charges of abandonment etc.).

There’s s no question discovery, in this case, is already voluminous. There are probably thousands of electronic messages, phone calls, computer searches, photographs, police reports, and more. It’s hard to keep track, and many lawyers have specialized databases for that purpose. It’s not surprising that Mark Means was confused about what he had, but it is surprising that he felt the need to file motions over it. That’s a civil tactic. Usually, a simple phone call can resolve the problem. Sometimes, defense attorneys and their staff even meet with prosecutor’s staff to compare discovery and ensure they have everything, not because the prosecutor is withholding evidence, but simply because mistakes and oversights happen.

There are times when the relationship between the defense and the prosecution is so damaged that they don’t trust anything the other says unless they are in front of a judge. It’s unfortunate, but that may be the case here. Collegial, professional relationships require that the parties trust one another, and once the trust breaks down, it‘s difficult to rebuild.

The next motions have to do with Mark Means’ ongoing crusade against the Fremont County jail. Again, this may be because Means has so little experience with jails. To repeat, at the risk of being obnoxious, the judge has no authority to order the jail to do anything. If the court believes privileged information was recorded, the judge’s only recourse is to exclude the evidence. Judge Boyce also has no authority to tell the jail how to run their business. He can’t tell them to let Means have face-to-face contact with Lori and can’t order the jail to give her access to a cell phone. Jail communication is recorded and monitored. That’s just a consequence of being in jail. I can’t see where a hearing has even been set on that motion, but John Prior filed his own declaration, letting the court and everyone else know he has no beef with the jail. This little jab gives some credence to the rumors I’ve heard that Means and Prior don’t get along.

Today, Means filed a motion about tomorrow’s hearing. As usual, it’s barely comprehensible. Means is asking for a status conference “under seal” with the judge. Presumably, he means private status conference that is not broadcast to the public. Status conferences are typically used to apprise the judge of how the case is going and to schedule future court dates.

Means previously filed a motion asking the judge to reconsider his decision on the motion to disqualify Rob Wood. In general, a motion for reconsideration would be used when a lawyer believed that perhaps the judge overlooked a relevant and controlling case or piece of evidence that was presented at the hearing. It isn’t used to introduce new information or evidence. The judge denied the motion without setting a hearing. In the case where there’s no new evidence to be presented, it’s the judge’s prerogative whether to set a hearing to hear additional argument or just rule on the documents submitted. Judge Boyce obviously thought he’d heard enough. Means wants the judge to reconsider his denial of the motion to reconsider because Means didn’t have the opportunity to file a memorandum, laying out all the reasons he thought the court should reconsider the decision not to disqualify Wood.

It makes less sense because tomorrow’s hearing was supposed to deal with Means’ discovery motions. There is nothing in the court record that indicates that tomorrow’s hearing had anything to do with the Motion to Reconsider or the motions he filed about jail access. It’s possible the court is just as confused, and we may have to wait until tomorrow to see what develops.