CORRECTION! LAUNCH PARTY IS SATURDAY 10/15
CORRECTION!
THE YOUTUBE LAUNCH PARTY IS SATURDAY, OCTOBER 15, 2022 AT
5 PM
Damn it! I hate it when I get important things wrong! The launch party in Boise is on SATURDAY, October 15, 2022, at 5 pm. Please join me if you are in the neighborhood.
Launch Party and Is Lori Incompetent again?
Hello again! This newsletter will be much shorter than the last, but we have a few things to talk about.
First, my YouTube Channel, Children of Darkness and Light, will debut live on Friday, October 14, at 6 pm Pacific time. We will discuss the hearings scheduled for Thursday, October 13, 2022. Here is the link: https://youtu.be/qRguPBu8GXg. Thank you to the 491 who have already subscribed, and especially Neva Stanford, who was the first to subscribe.
If you are in the Boise area, please join me on October 15, 2022, at 5 pm for a no-host happy hour at Ten Barrel Brewing, 826 W Bannock St., Boise, ID 83702, to celebrate the start of my YouTube Channel.
In my last newsletter, I outlined all the motions recently filed by both defense attorneys. One of them, Lori Vallow’s attorney’s Motion to Continue Trial, to Toll Time Limits, and to Stay Case, has resulted in a major development in the case.
On October 6, 2022, Judge Steven Boyce issued an order outlining the recent developments. According to the order, after receiving an Ex Parte Affidavit from Lori’s attorneys, he called an exigent hearing to authorize giving the affidavit to the prosecution. The judge then set a quick hearing to discuss the matter. The judge properly closed that hearing because, under Idaho law, proceedings involving the defendant’s medical or mental health condition are private. As a result of that closed hearing, the judge ordered that Vallow’s case be suspended until it can be determined if she is fit to stand trial. What happens next will be a repeat of what happened last year. Lori will be evaluated by a psychologist who meets the professional criteria set out by the laws of Idaho. If she is found incompetent again, she will be committed to the Idaho Department of Health and Welfare (IDHW) for further treatment to restore her to competence.
For those familiar with the motions I filed to unseal documents, this is an interesting development, not because of Lori’s competence but because of how the court handled the documentation and sealed files. For the first time, the court made written findings that outlined his decision process in sealing the proceedings and the documents. Changing how they do things clearly indicates that I was right; they were not doing things correctly before.
I know many people are frustrated and upset with this development, none more so than JJ’s grandparents, Kay and Larry Woodcock. Some people seem to think Lori is malingering or faking her condition, but as someone who has dealt with clients in this situation, I think it’s difficult (but not impossible) to pretend to have this level of mental illness.
When documents are filed in court, attorneys review them with their clients. Chad Daybell’s motion to sever the case contained some information that Lori, no doubt, found upsetting. In the motion, Prior writes, “Based on the allegations in this case, one of the plainly available defenses would be to demonstrate that Ms. Vallow and her brother, Alex Cox, were responsible for the crimes alleged and that they acted as part of their own conspiracy that did not involve Mr. Daybell. As part of that defense, Mr. Daybell would seek to introduce the prior bad acts of both Ms. Vallow and Mr. Cox, as well as evidence regarding their relationship and the death of Mr. Cox, and the past statements of Mr. Cox. Ms. Vallow’s prior bad acts would bear upon motive, intent and plan. Particularly, Ms. Vallow’s alleged involvement in the murder of her ex-husband – who Mr. Cox told police that he had shot – plainly bears upon the issue of whether Ms. Vallow and Mr. Cox had an ongoing conspiracy that preceded the core acts alleged in this case. As such, Lori Vallow’s previous conduct easily meets the relevance standard for Reverse-404(B); in fact, this information goes straight to the heart of Mr. Daybell’s; potential defenses, including any defenses that he did not commit the crimes alleged, that he was not engaged in the conspiracy, and he had no knowledge of what occurred. The alternative perpetrator evidence ‘is consistent with, and raises a reasonable doubt of, [Mr. Daybell’s] own guilt’ such that Mr. Daybell has the constitutional right to introduce the evidence, regardless of state evidentiary rules.”
I can imagine reading that caused Lori a great deal of distress. If, as I believe, Lori remains firmly enmeshed in her belief that she and Chad are God’s chosen and that God will protect them if they are only faithful, Chad’s seeming defection might have been enough to cause her decompensation. Let’s remember the lengths she went to at her last hearing to communicate her solidarity with Chad by wearing a hair-tie wedding ring.
A recent question from a subscriber asked, “Can Lori plead not guilty by reason of insanity and go free? The short answer is no, but don’t ever expect short answers from me – after all, I’m a lawyer. We’ve discussed this before, but here’s a refresher.
Idaho is one of four states that does not recognize the insanity defense. The only way to get a person’s mental health before a jury is to claim that they were so ill they couldn’t form the required mental state. You might recall every crime requires that the person commits the crime with a particular mental state. The most common are knowingly, intentionally, and recklessly. For someone in Idaho to escape conviction, they would have to prove they were so insane they couldn’t form the intention. That’s a tall ask. I think Lori’s attorneys say she was so delusional that she believed her children were zombies and not people. I don’t think that flies, though. In those sorts of cases, the delusional person rarely goes to great lengths to cover their crimes and rarely runs off to Hawaii to await the end times. The case of Andrea Yates comes to mind. She was a woman with severe mental illness who drowned her five children in the bathtub because she believed she saved them from being inhabited by Satan. She thought she was justified, so she freely told the police what she had done.
There is also a difference between a person’s mental state at the time of the crime and the person’s competency at the time of trial. In states with the insanity defense, the issue is whether the person was competent at the time of the crime. In Lori’s case, the question is whether she is competent now. A person must understand their trial proceedings and assist their attorney. If, as has been the case with Lori, the defendant can’t aid and assist, they are sent for restorative treatment until they can.
Lori’s case was stayed on May 27, 2021, because she was incompetent, and she was committed to the Idaho Department of Health and Welfare for treatment. Lori spent nearly eleven months in treatment and was declared competent on April 11, 2022. You may recall there was an early evaluation period, and at first, Lori refused to take medication, forcing the court to order that she take it. That order is still effective, and I suspect her stay in treatment will be shorter because her treatment providers are already familiar with her case and her diagnosis. The judge has vacated the January trial date as it applies to Lori.
John Prior also asked for a continuance on Chad’s behalf. With Lori incompetent, and John Prior claiming that he can’t provide effective assistance of counsel without more time, I expect the judge will agree to a later trial date for both. It remains to be seen if the judge will rule on Prior’s motion to sever. He could wait, saying it’s too early to decide because of the stay in Lori’s case. However, if he does choose to sever the cases now, he could set Daybell’s trial any time next year and set Lori’s after she becomes competent.
Thanks again for all your support and encouragement. I look forward to seeing you in chat on Friday!
Changes, Announcements and Motions
Yes, it's true!
I'm Launching my own
YouTube Channel
And today, we have
many motions
to talk about.
October 5, 2022
Hello Friends!
We have SO much to talk about.
First, I have a HUGE announcement. Because of your encouragement, I am starting my own YouTube Channel! And let me tell you, just writing that sentence makes me feel like I might need to have a defibrillator standing by. I am an old horse, and this will require so many new tricks. The first live broadcast will be on October 14, 2022, the day after I argue my motions to unseal the documents in the case. Those who know me know I’m okay talking in front of a camera; it’s pushing all the right buttons that worries me, but I know I’ll be among friends, and you will be patient with me. Thank goodness there are endless YouTube how-to videos. Let me know if you’re an experienced moderator who would like to help. The channel is called Children of Darkness and Light, and you can find it here https://youtu.be/qRguPBu8GXg. The show will air On Friday evenings at 6 pm Pacific Time. I’ll be uploading a pre-recorded introductory video later this week.
My new channel will focus on the Lori Vallow and Chad Daybell story. As most of you know, I’m under contract with Pegasus Books to write about the case. I started my newsletter, and now my channel, because you have questions about the finer legal points of this complicated case. So we’ll continue to talk about those things, but we will also talk about other facets of the case. My patient publisher is committed to publishing a book that tells the whole story, so don’t expect it to be a book only about legal issues.
Next, my newsletter will be getting a facelift. I am changing email distribution platforms. My I.T. advisor assures me my mailing list will transfer over to the new service without interruption, but I propose, and the internet gods dispose. If it seems like you are missing newsletters, please let me know at http://info@thelorivallowstory.com. The web address will remain the same: https://thelorivallowstory.com/.
Some of you have asked why I took the big step of filing motions to unseal documents in the Vallow/Daybell case. The short answer is because I can – because it’s something I know how to do. You’ve also asked why other media outlets have not joined me. Most journalists believe that involving themselves in a story compromises their objectivity, and I respect that. Still, I’m a lawyer and an author, not a writer who only happens to be a lawyer. My devotion to my profession is intrinsically part of who I am. I was eighteen years old the first time I took the oath to protect and defend the Constitution of the United States. Over the next twenty years, I swore that oath several more times. I took it when I reenlisted in the military and when I was sworn in as a lawyer in two states. That oath means everything to me, which is the longer answer as to why I filed the motions.
Something is going on in this case that isn’t right. I don’t know yet, what exactly isn’t right or how deep into the case that ‘not-rightness’ extends. I don’t know what, if anything, the small-town Mormon culture has to do with it. I aim to find out and expose it, not because I’m a journalist but because I’m a lawyer who values the rule of law and the right of the defendants to a fair trial. Chad Daybell and Lori Vallow are accused of heinous crimes against people they were supposed to love and protect. If convicted, they will face the consequences. No matter what they did, they still have a constitutional right to due process. When defendants receive fair trials, our system works. Defendants are held accountable, and the victims’ families receive assurance that justice was served. On October 13, 2022, at 9 am, Judge Boyce will take up my motions to unseal the documents in the case. I’ve said before I don’t expect him to unseal the documents, but I hope I’m wrong. Regardless of his decision, I’ve done what I thought was right.
October 13, 2022, will be an entire morning of hearings on motions, including the following.
There have been several filings in the past two weeks. Expect more filings as the trial date draws closer. Some of these filings are intended to set the stage for the trial; others are designed to establish claims for future appeals. Let’s take each of them separately, starting with the ones filed for Chad. Caution: this will be a longer-than-usual newsletter.
Motion to Sever. Chad’s attorney, John Prior, points out in this motion that both he and the judge applied the wrong legal standard in the court’s March 21, 2022, decision to deny severance. The court applied the law as it pertains to the joinder of offenses rather than the joinder of defendants. When the appellate court examines a lower court decision like this, they ask if there has been an abuse of discretion on the trial court’s part. Applying an erroneous legal standard is, per se, an abuse of discretion, even if both the court and the moving party got it wrong. That means the defense gets a ‘do-over’ on the earlier motion. Additionally, some things have occurred since the last motion to consider. Motions to sever can be raised at any stage in the trial, and as many times as necessary, any time there is a change in circumstances.
When Prior filed the first motion to sever, Chad’s codefendant, Lori Vallow, had been found incompetent and was in a state mental hospital receiving restorative services. She had not been arraigned, and a notice of intent to seek the death penalty had not been filed in her case. But, as Prior points out in the new motion, those circumstances have changed. Lori has been restored to competency, arraigned, and the state has filed the notice of its intent to seek the death penalty.
As Judge Boyce has already acknowledged, death penalty cases are different. Trials must be conducted, and pretrial motions must be considered with a “greater degree of reliability Lockett v. Ohio, 438 U.S. 536, 604 (1978).” The heightened level of due process applies at all phases of the trial, including pretrial matters. The constitution also requires that each individual be considered separately. When defendants are tried together, that individualized information can get lost, be watered down, or be improperly applied to both defendants. John Prior points out, “Any process that dilutes Mr. Daybell’s mitigating evidence hampers the jury’s ability to ‘give full consideration and full effect’ to mitigating circumstances.”
Prior says that a joint trial would materially prejudice Chad and deprive him of his constitutional right to present a complete defense. As he points out, “one of the plainly available defenses would be to demonstrate that Ms. Vallow and her brother, Alex Cox, were responsible for the crimes.” The problem occurs when Prior attempts to introduce evidence of Lori and Alex’s prior bad acts. This evidence scenario is known as reverse 404(b) and refers to rule 404(b) of the Federal Rules of Evidence.
All states have their own rules of evidence; most are organized, categorized, and numbered like the federal code. Idaho Rule of Evidence (I.R.E.) 404(b) says, “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character to show that on a particular occasion the person acted in accordance with the character.”
The rule generally keeps the prosecutor from bringing in evidence of the defendant’s character that might be irrelevant but prejudicial. However, the defense can also use the rule (hence the designation of ‘reverse’ 404(b) evidence) to suggest that some other person who has done similar prior bad acts did the crime. In defense attorney circles, we call it the ‘SODDI (some other dude did it) defense.’
In this case, there’s a problem: Alex Cox is dead. That means John Prior can offer Alex’s hearsay out-of-court statements at trial, including his statements about killing Charles Vallow, because there is an exception when the declarant is deceased. He can use that information to suggest that because Alex killed Charles and took shots at both Tammy Daybell and Brandon Boudreaux, it’s more likely than not he killed Tammy and the children. While that works for Chad, it’s a problem for Lori because it violates HER sixth amendment right to confront and cross-examine witnesses against her (because the witness – Alex – is dead. If the court allows Chad to put on evidence of Alex’s statements, it violates Lori’s constitutional rights. If the court doesn’t permit Chad to bring that evidence in, it violates his right to present a complete defense. Catch-22, right? Further, if Lori has made any incriminating statements, Chad should be able to use them to bolster his SODDI defense, right? Maybe not. Lori could claim those inculpatory remarks are protected under the fifth amendment protection against self-incrimination. It’s getting messy.
Now we can see how a joint trial could disadvantage both defendants. The judge can’t caution the jury to consider a piece of evidence as it applies to Chad while ignoring it as applied to Lori. That’s precisely the situation from the Bruton case. Once the conflict happens, the problems spill over into the penalty phase. You may recall that death penalty cases are done in two phases. First, the jury determines guilt or innocence. If a defendant is found guilty, the jury must then decide whether to impose the death penalty or whether there are sufficient mitigating circumstances to impose life in prison without the possibility of parole instead. In the penalty phase, the jury may consider the defendant’s remorse, cooperation, and voluntary self-incrimination as factors. That’s a problem when the other defendant remains silent. Even though each defendant has an absolute right to remain silent, how do you explain that to a jury? Juries are smart, but they’re also human. How do you ask them to consider one defendant’s remorse or self-incrimination without inferring things from it about the other defendant?
Lastly, John Prior argues that the death penalty is biased by gender. He’s not wrong. His statistics show that between 1972 and January 2021, 8,581 men in the U.S. were sentenced to death, and only 175 women. In Idaho, there are eight people on death row; seven men and one woman. The woman, Robin Row, set her family home on fire in 1992, killing her husband and children, ages eight and ten, to collect their life insurance. Prior contends that in a joint trial, there is a likelihood the jury will render a harsher punishment for the man than the woman. There are, of course, counterarguments that a jury will punish a mother more harshly for murdering her children. Either way, the penalty phase could be influenced in a joint proceeding.
Motion to Continue. Next, John Prior filed a motion to continue the trial. Prior’s argument boils down to this: Chad has waived his right to a speedy trial, and he has a right to adequate time to prepare. He should not be rushed into trial because his codefendant has refused to waive her speedy trial rights. And yes, I do remember when John Prior pressed for an October 2022 trial date. It’s a common tactic to press the prosecution to trial before they’re ready. Technically, the prosecutor should not bring charges until they are sure they can prove the case. In reality, prosecutors file charges before the case is thoroughly investigated all the time. Asking for a quick trial setting is a good way to hold the prosecutions’ feet to the fire and perhaps squeeze a good plea offer out of them. Death penalty cases are complex and labor-intensive. Most death penalty cases have a full-time team of at least two attorneys, a full-time investigator, and a full-time mitigation specialist. In addition, the defense employs various experts, from forensic scientists to mental health professionals, to evaluate evidence and support mitigation. Prior says he needs more time, time to hire experts and consult with them, and time to hire an additional attorney. Prior says he has been unable to hire a co-counsel. He needs someone experienced, and it’s unclear whether his failure to find someone is a financial or logistical issue. Death penalty cases are costly. The trial phase alone can cost millions, and that’s before the endless appeals begin.
Anecdotally, I can tell you that many defense firms and public defenders are having trouble recruiting and retaining qualified lawyers because of low compensation and crippling caseloads. However, new lawyers can find substantially better pay and working conditions in the civil sector.
John Prior also points out in this motion that the mitigation investigation is daunting. That investigation chases down every medical, school, legal and social record for every family member for three generations back. Mitigation investigation is a highly specialized job. The merit phase (also known as the guilt or innocence phase) must be thoroughly investigated so that the mitigation specialist knows where to begin looking for information to justify not imposing the death penalty.
Motion for Grand Jury Transcript. John Prior is asking for additional grand jury information. You may recall that the grand jury met initially in May of 2021, and the murder indictments were issued from that grand jury session. Then in December 2021, the state recalled the grand jury for a day, but no new charges were filed as a result. John Prior now reports that he has never received the transcript of that later proceeding and does not know who the witnesses were. He is asking for the court to order a transcript of that last grand jury session. You might recall the transcript of the three-day grand jury session in May 2021 took months to complete.
Motion for a Bill of Particulars. Lastly, John Prior has filed a Motion for a Bill of Particulars. It’s a request for the prosecution to narrow down the scope of their accusations. Prosecutors intentionally keep their charging documents as general as possible. That avoids having to return a case to the grand jury if the later investigation turns up conflicting facts. It also means, as Prior points out, the state winds up with vague counts or counts that allege the crime could have happened in several ways or on more than one date. The indictment also alleges other unnamed co-conspirators, known and unknown. While that’s a convenient catch-all at the front end of the case, the prosecutors now need to declare their theory and the co-conspirators and stick to it. That’s what a bill of particulars does. It’s an order from the court directing the state to say precisely what they intend to prove at trial. Here is a place where civil and criminal law are different. In criminal law, there can be no ‘trial by ambush.’ The prosecutor must clearly and transparently outline the charges and share all evidence against the defendant. Lori Vallow’s attorneys have also asked for a bill of particulars on her behalf.
Moving on to the filings from Lori Vallow’s attorneys, there are a few things of interest.
Cameras in the Courtroom. Interestingly, when Lori Vallow’s attorney filed their motion to ban cameras in the courtroom, they didn’t bother to serve her codefendant, Chad Daybell. Chad and his lawyer were never given a chance to weigh in on the issue before Judge Boyce ruled. That’s a serious oversight. The judge ruled that cameras would no longer be allowed in the courtroom. That means there will be no live stream coverage. John Prior has now asked the judge to reconsider that decision because Prior did not have a chance to weigh in. Whether there are cameras in the court is entirely up to Judge Boyce. His decision, either way, is not appealable, but it is modifiable. He could change his mind depending on input from Prior or the Ada County courthouse administrator.
Motion to Prevent Death Qualification. This is an interesting motion. In some ways, it is a corollary to Prior’s motion to sever. Lori’s lawyers are saying that asking a juror if they believe in the death penalty and if they could impose it is prejudicial to Lori. They argue that you automatically get a more conviction-prone jury by asking people that question than if you don’t ask. They cite lots of research that shows that death-qualified juries tend to be whiter and more politically conservative than the overall jury pool. While interesting, I don’t believe the motion will go anywhere. This is one of those motions raised to tee up an appeal on a novel issue.
IDHW Response. There have been many questions about an entry in the database in Lori’s case that is labeled “Response” from the Idaho Department of Health and Welfare. Some have jumped to the conclusion that it has something to do with Lori’s competence, but it does not. It is simply a response to my motions to unseal the documents. The IDHW had to be served with my motions because they became an interested party once Lori was committed to them. The response indicates they do not intend to appear or take a position on my motions to unseal.
Motion to Continue Trial To Toll Time Limits and to Stay Case. There does appear to be news about Lori’s mental health. Her attorneys just filed a new motion to continue the trial. They note that by statute, they are required to give written notice of their intent to raise any issue of mental health condition 90 days before trial, which would be by October 11, 2022. Then there follows a paragraph that is redacted, and finally, a statement that “Because of _(redacted)_ the defense asks for a toll on the time limits in which to comply with pretrial orders, a continuance of the pretrial date and a continuance of the trial date.”
This is interesting for several reasons. First, this is precisely how documents should be filed when they contain sensitive information, redacted, not sealed (hallelujah), and this change seems to be in response to my motions. Second, the defense is asking for the time to submit pretrial orders to be tolled (put on hold) and the pretrial conference and the trial to be continued, which is odd because Lori was the one who refused to waive her speedy trial rights. The judge has already muddied that appellate water by setting the trial date three months beyond her six-month speedy trial deadline. Now, Lori’s attorneys are asking for more time, but there isn’t any indication that she is waiving her right to a speedy trial. That could mean they anticipate the time being tolled because she may again be committed as incompetent. That’s only speculation, but her lawyers have made no secret that her mental state is fragile. There is no telling yet how this will impact Chad’s trial date or his motion to sever.
I warned you this would be a long newsletter! Expect that there will be much more to talk about as the trial gets closer.
I want to thank you all for your encouragement and support. I look forward to seeing you all soon in live chat!
No Cameras in the Courtroom
Hello Friends.
First, I have a few announcements, and then to the business at hand.
Bracelets are available again. They are free. You can send a self-addressed stamped envelope to:
Lori Hellis
104 E. Fairview Ave., #381
Meridan, ID 83642-1733
Next, I want to chat about some new developments for Lauren and John Matthias. As you all know, they have been working hard to grow their platforms and their channel. There are exciting new developments on the horizon for Lauren and John, and because of that, they are doing something of a reboot. They have branched out into other cases and are focusing on what made their podcast so popular – chats about true-crime cases around their dinner table. That means you will see more of Dr. John and less of me. I love them both, appreciate how much we’ve been able to collaborate, and am incredibly proud of how their hard work has paid off for them. I will be delighted to appear with Lauren any time she asks, and in the meantime, I’ll put out my newsletter any time there are developments.
Judge Steven Boyce granted the defense motion to exclude cameras from the courtroom with the concurrence of the prosecution, and I was surprised. So let’s talk about what it means.
According to Idaho law, the decision to allow or ban media in the courtroom is entirely up to the judge and is not appealable. The judge relied heavily on the fact that both the defense and the prosecution were asking for the camera ban.
Judge Boyce issued an 8-page memorandum about his decision. He began the memorandum by saying, “A sacrosanct protection of the penal system in the United States of America is the insistence of a fair trial by an impartial jury….” He goes on to quote the Sixth Amendment of the U.S. Constitution. But unfortunately, he entirely ignores the First Amendment and cites Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976), in support of his findings.
It’s not unusual for legal opinions to pull quotes favorable to their argument from case law. It’s ironic, though, that he cites to a case whose holding is precisely opposite from his finding. In the Nebraska Press case, the judge was concerned over pretrial publicity in a notorious murder case. It’s pertinent to point out that the U.S. Supreme Court decided Nebraska Press in 1976, a date that predates satellite and internet broadcast capabilities. Cameras began appearing in the courtrooms in the 1980s. Nevertheless, it wasn’t until 1991 that Pamela Smart’s trial became the first to be covered live, gavel to gavel nationally.
The Supreme Court has repeatedly found that prior restraint of the press is unconstitutional. In the Nebraska Press case, the U.S. Supreme Court ruled, “While the guarantees of freedom of expression are not an absolute prohibition under all circumstances, the barriers to prior restraint remain high, and the presumption against its use continues intact. Although it is unnecessary to establish a priority between First Amendment rights and the Sixth Amendment right to a fair trial under all circumstances, as the authors of the Bill of Rights themselves declined to do, the protection against prior restraint should have particular force as applied to reporting of criminal proceedings…The heavy burden imposed as a condition to securing a prior restraint was not met in this case…It is not clear that prior restraint on publication would have effectively protected the accused’s rights, in view of such practical problems as the limited territorial jurisdiction of the trial court issuing the restraining order, the difficulties inherent in predicting what information will in fact undermine the jurors’ impartiality, the problem of drafting an order that will effectively keep prejudicial information from prospective jurors, and the fact that in this case the events occurred in a small community where rumors would travel swiftly by word of mouth.” This does not sound like an opinion that supports Judge Boyce’s decision.
There are differences between Nebraska Press and the Daybell case. In Nebraska Press, the court was attempting to prohibit all pretrial media coverage of the case to protect the jury pool. In the Daybell case, Judge Boyce only excludes cameras, including still, recorded, or video feed. Still, as Nebraska Press points out, it’s impossible to predict what information will actually undermine the juror’s impartiality; it’s not enough that it might undermine some potential juror’s impartiality. As I’ve said before, Chad and Lori are entitled to a jury of their peers who have not formed an opinion about their guilt or innocence. They are not entitled to a pristine jury pool, even if possible. It seems, however, that since the ruling isn’t appealable and his power is absolute, the judge is free to prioritize the Sixth Amendment over the First.
There are many concerns that the judge may not have considered or given sufficient weight to. The judge’s decision will significantly impact the Ada County Court. People who might have watched the live stream from the comfort of their homes will now crowd the courthouse. Most of the Vallow family lives in the Southern U.S., and most of the Cox family lives in the desert Southwest. That means any who wants to attend the trial must travel to Idaho and find lodging for the ten weeks the trial is expected to last. That will require significant effort and resources for most and will simply be impossible for some. Judge Boyce recognized that the people of Fremont and Madison Counties also have an interest in the case and will be inconvenienced by the move to Boise. Beyond that, the pressure on the courthouse will be immense. Typically, the court sets aside some seats for the media and then provides an overflow work room with a video feed for those that can’t get into the courtroom. It’s unclear how that will work with no cameras in the courtroom.
Judge Boyce could revise his order at any time. After consulting Ada County, he may change things for the trial. I hope he reconsiders the ban on trial coverage so that the families and the citizens of Fremont and Madison Counties can watch from home.
The hearing on my motions to unseal all the documents is on October 13, 2022, at 9 am. I will be there to argue my motions. I don’t expect the judge to unseal anything; I expect him to be condescending and dismissive. I also expect he will feel freer to be so because there will be no cameras in the courtroom. I hope I am wrong.
Finally, I want to point out something about the timing of the trial. You’re not going to like this, but I believe, at this point, there is only about a 50/50 chance that the trial will go forward in January. Why? Remember, John Prior filed a motion to dismiss the prosecutors. The court denied the motion, and John Prior asked for leave to appeal that decision in an interlocutory appeal. (That’s the appeal of an interim decision made before a final judgment.) The judge can either give permission or deny it. However, if he denies the appeal, Prior is free to appeal that decision to the Idaho Supreme Court.
Appeals take time, even in the best of circumstances. Under the Idaho rules, Prior has 14 days from the date Judge Boyce enters the order, either approving or denying permission, to file his request with the Supreme Court. After that, the Supreme court must find that the interlocutory order is appealable and give leave for the requesting party to file an appeal.
Once the appeal is filed, a written hearing transcript must be created. You may recall the transcript of the grand jury proceedings took months to prepare. The portion of the court record dealing with Prior’s motions will be much shorter than the grand jury proceedings but could still take a month or more to prepare. Once the transcript is finished and filed with the court, the appellant (Prior) has 35 days to file his appellant’s brief. The brief cannot be any longer than 50 pages and outlines the law and his argument for why Judge Boyce was wrong. The court often grants extensions on these deadlines. Once the appellant’s brief is filed, the respondent (the prosecution) has 28 days to file a responding brief but can also be granted extensions. The court must then set a time to hear oral arguments. In other words, appeals take months and sometimes years. If John Prior pursues the appeal of Judge Boyce’s decision, it will be impossible for the trial to begin on schedule.
That’s a wrap for now. Send your questions to http://info@thelorivallowstory.com, and don’t forget to send for your bracelet. Enjoy these beautiful fall days.
Will the Judge Ban Cameras in the Courtroom? Hearing set on Unsealing motions.
Hello Friends.
There was a hearing last week on Lori Vallow's motion to limit cameras in the courtroom. Rob Wood not only concurred but suggested the court eliminate cameras altogether. However, Stephen Wright, attorney for the media, argued to keep cameras in the courtroom.
Many of you have asked whether I think the judge will ban cameras in the courtroom. I think you know how strongly I feel about transparency in the criminal justice system. Cameras go a long way to ensuring that the public can fulfill their responsibility to oversee the process and hold their government officials to account. I think the judge understands this and will permit the cameras to continue but will set stricter guidelines for where the cameras and microphones will be located. I agree that the long periods of zooming in on Lori's face were intrusive and probably unnecessary. I also understand why people are so interested in her appearance and expressions. I agree that the lawyers should know when the microphones on their tables are hot and, at a minimum, should be able to mute the microphones when speaking to their clients.
The first issue the court took up in this last hearing also had to do with Lori's appearance and whether she would be allowed to wear street clothes while she was in court. The court agreed that Lori could continue to wear street clothes when she comes to court, even during motion hearings. In most cases, inmates appear in jail garb for any hearing that doesn't involve a jury. The argument from Lori's lawyers was that every time Lori appears in court, it's live-streamed, and her lawyers don't want her to be seen in jail garb when it might influence potential jurors. That's reasonable, and the judge allowed it. Criminal defendants are entitled to appear in court in street clothes and reasonably groomed. Defense lawyers and their staff are often called upon to provide trial clothing, and many public defender offices have a trial closet of clothing for clients who are appearing at trial. People subconsciously think a person is guilty when they see them in jail scrubs. I will never forget combing the stores in Bend, Oregon, searching for turtleneck tee-shirts in the middle of summer to cover my client's questionable neck tattoo.
And while we are on the subject, can I just say something? I don't know what the rules are for Lori about her hair and makeup, but can we just stop about it? Whenever she appears in court, some people incessantly comment about her appearance and are outraged that she's allowed to style her hair and put on makeup. Around the time she was transferred from the mental hospital back to jail, she was allowed to color her hair. I don't know the circumstances, but she likely had more leeway in the mental health facility. It also looks like the lightened parts are beginning to grow out, and I doubt she will be able to color it again soon.
I'm not sure why so many people are so outraged that Lori is permitted these small amenities. Perhaps it's because she has always been considered pretty, or maybe because she so clearly was a woman who traded on her looks. Be assured that no one is allowing Lori to use her looks in court, but she is entitled to humane treatment. We live in a society where hair and makeup are part of nearly every woman's daily grooming. She is given access to a hair curler and some makeup before court. Men are allowed haircuts, shaving supplies, or beard trimmers. Women are permitted reasonable grooming supplies, including the ability to style their hair and some makeup. She is allowed to use those things under supervision either at the jail or while in the courthouse holding cell. Her attorneys will ensure that she continues to wear clothing that makes her look ordinary. They will opt for pastel colors and unremarkable styles. That's simply how things are done.
Let's remember what's important. Lori Vallow and Chad Daybell are on trial for the murder of three people. They are facing the death penalty and are entitled to a fair trial. The families of the victims are counting on this process for justice.
As you all likely know, my motions to unseal all the documents have finally been accepted, and a hearing has been set to hear them on October 13, 2022, at 9 am. As you may also know, I wrote a letter to the chair of the Idaho Supreme Court's Media Committee. I have included the text of the letter below. The court released it to the public.
___________________
September 2, 2022
Justice Gregory W. Moeller
Idaho Supreme Court
PO Box 83720
Boise, Idaho 83720
Dear Justice Moeller:
I am writing to you because you are the head of the Media committee for the court. As I understand it, the Idaho Supreme Court either has or had a Media and Court Conflicts Resolution Panel that was also known as the Fire-Brigade. Unfortunately, I have not discovered how one refers a matter to this panel, so I am contacting you directly.
I am a retired criminal defense lawyer, licensed and inactive in Oregon and Arizona. I am an author under contract with a publisher to write a book about the Lori Vallow and Chad Daybell cases. The case numbers are CR22-20-0755, CR22-21-1623, CR22-20-0838, and CR22-21-1624. The case is assigned to your Fremont County District Court successor, Judge Stephen Boyce. I have been covering this case since the beginning, and I have recently found information that I find very troubling.
Since the cases began in March 2020, Judge Boyce has ordered what is, in my experience, an unusual number of documents sealed. The number of sealed documents led me to research the criteria for sealing documents in Idaho cases. I discovered that Judge Boyce had not followed the procedures set out in ICAR 32. He did not hold a hearing after notifying parties and interested parties and did not make written findings.
As a media member, I filed motions on July 30, 2022, to unseal the documents. I filed a motion to intervene in the case to challenge the sealed documents. Judge Boyce denied my motions on August 18, 2022, finding that my motion to intervene was not a proper filing in Idaho. I revised the motions and refiled them on August 24, 2022. I purposely omitted my home mailing address in my motion and sent it to the court in a separate letter. The court didn't accept that and rejected my filings the same day pursuant to ICR 2.3(a)(4). I then rented a mailbox and refiled the documents on Friday, August 25, 2022. The motions remained in the Fremont County court's Odyssey e-file inbox "under review" for seven days before they were returned late on Friday afternoon for an error in the document footer. It's clear that the court has instructed the clerk to comb the documents for any mistakes and is playing games to avoid hearing the motions. I have now refiled my motions for the fourth time.
As I am sure you know, the Daybell case has garnered international attention. I write a popular blog about the legal issues in the case and have appeared on two popular YouTube true crime programs discussing the case. People interested in the case know me, so after I filed motions to unseal the documents, I was contacted by an internet detective. This person is an avid internet researcher and gave me some troubling information.
Early in the case, the internet detective researched all the people involved and found some social media posts that bothered them. It seems that several people close to the case, including the judges, the prosecutors, and law enforcement officers, were posting inappropriate comments online. The internet detective, who wishes to remain anonymous, documented their findings and sent copies to both the prosecution and the defense. Judge Boyce and Judge Eddins, prosecutors, and law enforcement may have been in a county employee Facebook group. It's difficult to substantiate since they have all scrubbed their social media accounts.
Mr. Daybell's attorney, John Prior, filed motions based on the information. First, he asked to dismiss the indictments because of irregularities in the grand jury. I speculate that at least one of the jurors must have seen the information in the Facebook group posts. Judge Boyce denied the defense motion. Next, Mr. Prior filed a motion to dismiss the case and/or to disqualify all three prosecutors. Judge Boyce also denied those motions. Mr. Prior then sought leave to file an interlocutory appeal of the decision. Today, the court held a hearing on that motion. The hearing was, of course, closed to the public. All motions, hearings, documents, and information associated with those motions have been sealed. I understand Judge Boyce has also issued a secret sealed gag order in the case. This level of secrecy is alarming and likely illegal.
The first amendment protects press access to criminal matters to ensure that the government is doing its job properly. That transparency ensures that the defendants receive a fair trial, and the victims' families can be assured justice has been served. It is impossible to fully explore the extent of the possible prejudice to the defendants in this case because of the level of secrecy. Yet, each time Judge Boyce seals another document, he claims he is doing so to protect the defendant's right to a fair trial.
In fact, it appears Judge Boyce has engaged in a systematic coverup of the possible misconduct of the prosecutors, law enforcement, himself, and his judicial colleague. As recently as August 25, 2022, he entered another order, reaffirming the sealing of all the documents relating to the misconduct, doubling down.
In the meantime, my motion to unseal the documents is repeatedly rejected so that Judge Boyce does not have to rule on them and risk opening the documents.
While the pretrial social media posts were ill-advised, possibly prejudicial, and in violation of RPC 3.6, it is the systematic coverup of the information that is most troubling.
Yesterday, Ms. Vallow's attorneys filed a motion to exclude cameras from the courtroom for future court proceedings. Unfortunately, that motion has the potential to further limit the access of the press to the proceedings.
Your honor, I sincerely hope I am wrong. But as a former officer of the court myself and a lifelong advocate for the rule of law and the Constitution, I can't sit by and watch these government officials subvert justice. I hope you can assist me in bringing this conspiracy of silence into the open.
___________________
Copies of this letter were sent to all the attorneys, the judge who acts as the Judicial Administrator for the Seventh District, and Judge Boyce. It has been published in the court record and is available to the public.
Some people have expressed concern that my motions will unfairly benefit the defense. Not true. Remember, if illegality or misconduct is going on in this case, it could undermine any convictions. As I said in this letter, I sincerely hope I am wrong about what is in the sealed documents. I believe that unsealing the documents will reveal that there has been a systematic attempt to cover up misconduct on the part of the prosecution. The fact that the prosecution and the investigative team members may have commented about the case and the evidence on social media would have been bothersome but not necessarily fatal to the state's case. The fact that they, with the help of the judge, may have covered up that misconduct is.
This is a case that can make careers. Unfortunately, if history is any indication, it can also destroy careers. Let's remember Casey Anthony's lawyer, Jose Baez; his representation of Anthony cost him tens of thousands of dollars to defend against complaints against him. And who can forget that the prosecutor, Juan Martinez, and the defense attorney, Kirk Nurmi, were both disbarred because of their work on the Jodi Arias case? Mark Means may have been right in what he was saying all those months ago; it's also possible that he went about it wrongly and will likely be disbarred over it.
When this kind of case falls to you, it's easy to conclude that you're the best person to prosecute or defend it. Rob Wood has been heard saying that even though Tylee and JJ were only in Rexburg for a short time, he felt they belonged to the community. Over the months and years, he has also formed a relationship with family members, particularly Kay and Larry Woodcock. It's only human not to want to let people down and to feel committed to seeing the case through to the end. However, those things don't take away from the problems that may have arisen with his continuing representation.
The people who read my newsletter trust me to be objective and tell the truth. I told the truth when I said Mark Means was not equipped to handle Lori's case. I also told the truth when I said I thought John Prior was competent, even though many of you don't like him. I'm telling you the truth now, as I know it today. I believe there has been a coverup of an exchange of some small town, good-ol’-boy, mean-spirited gossip. The gossip isn't the problem; the coverup is. Had Judge Boyce been a more experienced judge, he could have handled it openly and moved on. Instead, I think he got scared and tried to keep it quiet to protect people's professional reputations.
For those old enough to remember Richard Nixon, it wasn't the break-in to the Democratic Party's headquarters at the Watergate Hotel that ruined him. Instead, it was a systematic coverup.
I don't know if the hearing on my motions will be live-streamed, but I hope it will be. Of course, it depends on the judge's decision on cameras in the courtroom. I expect the judge and all the parties will come to that hearing locked and loaded for argument.
What's a Bill of Particulars?
Hello Friends!
We have several subjects to discuss today.
As you know, I’ve been trying to unseal the documents in the Vallow/Daybell case. Let me clarify what and why.
In my experience, judges only seal documents under specific, limited circumstances; that is what the rules of Idaho Criminal Procedure and the Idaho Court Administrative Rules require. Here is what I.C.A.R. rule 32 requires:
I.C.A.R. 32(i) Other Prohibitions or Limitations on Disclosure and Motions Regarding the Sealing of Records. Physical and electronic records may be disclosed, or temporarily or permanently sealed, or redacted by order of the court on a case-by-case basis.
(1) Any person or the court on its own motion may move to disclose, redact, seal or unseal a part or all of the records in any judicial proceeding. The court shall hold a hearing on the motion after the moving party gives notice of the hearing to all parties to the judicial proceeding and any other interested party designated by the court. The court may order that the record immediately be redacted or sealed pending the hearing if the court finds that doing so may be necessary to prevent harm to any person or persons. In ruling on whether specific records should be disclosed, redacted or sealed by order of the court, the court shall determine and make a finding of fact as to whether the interest in privacy or public disclosure predominates. If the court redacts or seals records to protect predominating privacy interests, it must fashion the least restrictive exception from disclosure consistent with privacy interests. (Emphasis added)
(2) Before a court may enter an order redacting or sealing records, it must also make one or more of the following determinations in writing:
(A) That the documents or materials contain highly intimate facts or statements, the publication of which would be highly objectionable to a reasonable person, or
(B) That the documents or materials contain facts or statements that the court finds might be libelous, or
(C) That the documents or materials contain facts or statements, the dissemination or publication of which may compromise the financial security of, or could reasonably result in economic or financial loss or harm to a person having an interest in the documents or materials, or compromise the security of personnel, records or public property of or used by the judicial department, or
(D) That the documents or materials contain facts or statements that might threaten or endanger the life or safety of individuals, or
(E) That it is necessary to temporarily seal or redact the documents or materials to preserve the right to a fair trial, or
(F) That the documents contain personal data identifiers that should have been redacted pursuant to Idaho Rule of Electronic Filing and Service 15, Idaho Rule of Civil Procedure 2.6, or Idaho Rule of Family Law Procedure 218 in which case the court shall order that the documents be redacted in a manner consistent with the provisions of that rule.
In sum, the court MUST Notify all the parties (including Interested Parties) of a hearing date and hold a hearing on the motion to seal. The court MUST then make findings in writing as to why the documents or hearing are sealed.
There are some things in this case that most certainly should be sealed. Anything about either defendant’s medical history, including their mental health, should be sealed. That means as much, and we would all like to see and understand the reasons for Lori’s commitment, those records are absolutely off limits. Likewise, any documents or hearings that contain personal information, such as birthdates, social security numbers, and financial data, should be sealed. For example, Lori’s application to be declared indigent probably contains information that should be sealed or redacted.
On the other hand, many documents and hearings have been sealed in this case that seem to have no justification. That made me very curious, and so I filed my motions. I wanted the judge to provide the public with his reasons for sealing documents that appear to contain information that would be very interesting to the public.
The Constitution’s First Amendment protects the public’s right to access government documents and records of government actions. There is a reason this access is critical. It is the public’s responsibility to oversee the operation of the government. A government by the people and for the people, remember? The public relies on the media to report what happens in the government. This transparency is another check and balance built into our Constitution. We are responsible for ensuring that our public servants serve the interests of the people and not themselves. That means we are responsible for ensuring that everyone involved in the Vallow/Daybell case is conducting their duties with the utmost integrity and fairness to ensure that both defendants receive a fair trial. That includes Judges, court staff, law enforcement, prosecutors, and defense lawyers. Secrecy in our government functions should be rare and limited to situations where it is absolutely necessary.
My initial motions made clear that the judge was not following proper procedure in sealing documents. In most jurisdictions and in Federal courts, journalists file a motion to intervene in a case to challenge sealed documents. We saw that happen recently in the Mar-a-Lago search warrants. Yet, when I filed a motion to intervene, the judge denied my motion, saying that in Idaho, a motion to intervene is not allowed because an Idaho case ruled that the only parties to a criminal case are the defendant(s) and the state. So I resubmitted the motions as a Non-Party Movant. When a person files a document, it is filed through the online portal (not like the one in Lori’s closet). Then, the document goes into an inbox to the individual court, where it waits to be accepted. The judge refuses to accept my motions because of minor formatting errors, and I keep correcting and resubmitting. As long as he doesn’t get them out of the inbox, they are never officially filed, and he doesn’t have to deal with them. I think the last time is the fourth time I’ve submitted them. One of the submissions sat for seven days in the inbox before they were rejected.
After I submitted them the first time, I was contacted by several people who told me the sealed documents were a coverup. I can’t get into specifics, but based on that information, I believe the documents have nothing to do with Lori or Chad getting a fair trial and everything to do with professional misconduct. I also think one of those mysterious documents simply labeled “order” contains a secret and sealed gag order. The Idaho Supreme Court has a Media and Courts Conflict Resolution Panel, and I have submitted the issue to them. It may not be purely coincidental that the court finally accepted my motions today.
Please understand I believe passionately in the Constitution and the rule of law; I spent much of my professional life protecting those ideals. Lori and Chad are entitled to a fair trial, unblemished by misconduct or bias. Based on what I know, it’s my opinion that Judge Boyce is not sealing documents to ensure a fair trial; instead, he is sealing records to protect reputations – including his own, and it’s wrong. I sincerely hope I am wrong and will offer public apologies if I am.
Next, Lori’s lawyers, Jim Archibald and John Thomas followed up their motions to return the case to the grand jury with a request for a bill of particulars. You may remember they argued the motion at the August 16, 2022 hearing, and Judge Boyce took the matter under advisement. We have not heard there was a decision, but with so many sealed documents and hearings, it’s hard to tell.
Let’s talk about demurrers and bills of particulars. To do so, we have to get a little elementary, so if this is repetitive, forgive me.
The Constitution ensures that every defendant has the right to know the charges and confront the witnesses and evidence against them. To protect that right, criminal procedure is quite formulaic. When there has been a crime committed, the prosecution must either submit the evidence to a grand jury or the court must hold a preliminary hearing in either case. The purpose is to ensure that there is probable cause to believe the defendant committed a crime. Once there is probable cause, an indictment is issued, and the defendant is arraigned on it. The charging document must be accurate so that the defendant has notice of what they are accused of.
If the defense believes the indictment is defective, they must file what is called a demurrer. The demurrer says that even if the factual allegations in the indictment are true, they don’t rise to the level of a chargeable crime. That is different from a bill of particulars.
A request for a bill of particulars asks the prosecution to explain the charges more fully. The indictment is typically done in Idaho by preliminary hearing. We saw a preliminary hearing in Chad’s charges after the children’s bodies were found. The state is not required to put on all its evidence, just enough to prove probable cause. This gives the defense a road map of how the state arrived at the charges. While the defense receives a transcript of the testimony the grand jury heard, the grand jury’s deliberations are secret. The defense, in this case, is arguing that there’s no way to see how the grand jury arrived at their decision. The defense also points out that the charges are pled in the alternative. It’s a common tactic in prosecution. Cast a wide net by pleading alternative theories of the case, then narrow them down as the investigation and preparation for trial continue. It’s not unusual for the defense to ask the prosecution to narrow down the options. Under Idaho law, the court is not required to order the prosecution to provide the defense with a bill of particulars.
Lastly, the court has scheduled a hearing on September 15, 2022. There is no indication of what the hearing is for or whether it will be open to the public. The court has not set a date on my motions yet.
It’s hard to believe it’s already early September. The trial that seemed so far away is now just around the corner. Happy Pumpkin Spice, everyone.
Motions to Unseal Documents
Hello, Friends.
As you probably know, Judge Boyce denied my July 30, 2022, motions to unseal all the sealed documents. I argued that the judge did not follow Idaho law when ordering documents and hearings sealed. He denied the motions on procedural grounds, claiming that I had not followed the proper procedures when I filed my motions. The judge gave me leave to refile the motions.
No one likes to have their mistakes pointed out, especially publicly. I don’t blame him for getting a bit of his own back by pointing out my errors. Each state is different when it comes to the procedural process. All my research and experience told me that a motion to intervene was the proper filing. The press just filed a motion to intervene in Donald Trump’s case, arguing that the search warrant affidavit should be redacted and released. However, it turns out asking to intervene isn’t the proper filing in Idaho.
I refiled my documents on August 24, 2022. Yesterday, August 25, 2022, the court sent them back to me. Now the court is just playing games. They returned them to me because of a formatting error. They don’t know me very well. I just reformatted them and returned them today, but it’s starting to feel like a game of tennis. And yes, this time, the return was petty. The Idaho Supreme Court has a committee that mediates disputes between the media and the courts. If Judge Boyce continues to avoid holding a hearing on my motions, I will contact them for help.
I’ve been told by someone who practices in Fremont and Madison counties that Judge Boyce’s predecessor, Judge Moeller, was much stricter on sealing documents and court hearings. So it’s nice to know this isn’t a systemic problem and that it seems isolated to Judge Boyce.
But here’s the perplexing part: I wrote in my last newsletter that at the end of the August 16, 2022, hearing, Jim Archibald told the judge he had a matter to take up “under seal.” The judge must be taking my motions to heart because yesterday, he filed this.
Fascinating, don’t you think? While the judge still didn’t hold a hearing before entering this order, at least he issued some sort of finding as to why the hearing was closed. It’s lip service to the law, and so far, the judge has avoided unsealing any documents. The law clearly states that the court should seal any documents concerning a defendant’s medical status, including their mental health. Judge Boyce was right to seal that conversation.
The order does raise some concerns about Lori’s ongoing mental state. She appeared to be tracking what went on in court at her last hearing, but it’s sometimes hard to tell from outward appearances.
We’ve discussed where the line falls between religious belief and delusion. From everything we can glean, it appears Lori remains firmly entrenched in her belief that she is a goddess, Chad is a prophet, and her legal troubles are just Satan trying to derail their mission. Does that make her unable to aid and assist? I would say it does not, but I might argue differently if I were her lawyers. If I were them, I might argue that her delusions are causing her to ignore their advice. It’s a tough sell, though, because clients are free to ignore their lawyer’s advice, and they often do. Ignoring your attorney’s advice might be foolhardy, but it isn’t proof that you can’t aid and assist.
To be honest (frankly, your honor), I’m much more interested in what the court is hiding with his order to seal all the documents concerning John Prior’s motion to disqualify all the prosecutors. The people have a right to know if their public servants are biased, unqualified, or acting in their own interest. I find it hard to believe any of those documents contain private information or information that will interfere with either party’s right to a fair trial. I suspect the documents contain information that may be embarrassing but that doesn’t fall under any of the legal exceptions to disclosure. There is more than one story here. In addition to a story about the murder of at least four innocent people, there’s a story to tell about small-town justice and religious prejudice.
There is a hearing set for August 30, 2022, for Chad. The only open motion is the motion John Prior filed for permission to appeal the court’s ruling on disqualifying the prosecutors. My local source tells me such appeals are rare. So if the court denies the motion, it will just be one more issue to bring up on appeal.
For those who have asked when I might be on with Lauren again, soon, I hope. Nothing is wrong, and Lauren and I are still good friends (for those who jumped to an internet drama conclusion). Truthfully, there is not much going on in the Daybell case right now, and neither of us wants to waste your time repeating information you already know. Lauren and John are interested in cases beyond Daybell, and thankfully, Dr. John is feeling better and is up to making more content. If you missed his analysis on TGIF last week of Lori’s behavior at her court appearance, be sure to catch it. Lauren is releasing her long-awaited interview with Suzanne Freeman this evening. Freeman was the author of the first book on near-death experiences Chad published, and she knew Chad well. I, for one, will be breaking out the red wine and the popcorn.
As summer winds down, I am spending time with lots of books, making mountains of notes. And preparing FOIA requests to file as soon as the trial and sentencing are done.
I hope you are all making the most of the last few summer weeks. It’s been three Arizona winters since I had to think about snow, but I’ll soon be pulling my winter trench coat and boots out of storage for the daily trip to the courthouse.
And finally, wristbands are available again! Send your self-addressed stamped envelope to
Lori Hellis
104 E. Fairview Ave. #381
Meridian, ID 93642-1733
Motions Denied?
Hello, Friends!
You all have lots of questions, so here is a quick recap.
I filed motions with the court to unseal all the documents and hearings Judge Boyce has previously sealed. I argued that the judge did not follow Idaho law when ordering documents and hearings sealed. I’m sure that stung. He replied that I had not followed the Idaho process for filing my motions. Fair enough. His denial left open the opportunity to refile, and of course, I will do just that. I will respectfully follow the process and, once again, ask the judge to unseal the records. Was the answer petty? Perhaps, but it was well within his discretion, and I’d rather have an assertive Judge Boyce than the sometimes uncertain one we’ve seen in the past. There’s no doubt he’s receiving his baptism by fire with this case, and I don’t envy him for it.
Look for those motions to be refiled early next week.
What does Lori have to smile about?
Hello, Friends! We have a lot to talk about. I attended Lori's hearing yesterday in Rexburg, ID.
There were three motions on the docket for yesterday's hearing. The first was the state's motion for consumptive DNA testing. On Friday, they announced they had agreed with the defense about the testing and asked the judge to take that issue off the schedule. Next were two motions filed by Lori's court-appointed attorneys, Jim Archibald and John Thomas. These motions concern how the indictment was written when it came from the Grand Jury. Chad's attorney, John Prior, reported that because their issue had been resolved, he and Chad would not be attending the hearing. Many were disappointed because this hearing would have been the first time both defendants would be in court in person with their attorneys. Because of COVID restrictions, all the earlier hearings were conducted by video conference.
The two motions presented by Lori's attorneys are both quite technical and may require some explanation. The counts in question, counts one and three, involve conspiracy. While Chad and Lori's indictments are identical, only Lori's attorneys have challenged the form of the indictment.
In general, the rule is one charge for each crime. The indictment reads:
COUNT I
CONSPIRACY TO COMMIT FIRST DEGREE MURDER
AND GRAND THEFT BY DECEPTION a Felony
The defendants, Chad Guy Daybell and Lori Norene Vallow, and Alex Cox (deceased), and other co-conspirators, both known and unknown, on or between the dates of October 26, 2018, and continuing until January 15, 2020, in the County of Madison, State of Idaho, and elsewhere, including Fremont County, Idaho, and as part of a continuing criminal transaction and a common scheme or plan in Madison and Fremont Counties, Idaho did willfully and knowingly combine, conspire, confederate and agree to commit the Murder in the First Degree of Tylee Ryan and to commit Grand Theft by Deception.
The analysis requires some further information. The crime in this count is the crime of conspiracy, not murder or grand theft.
The state must prove: (18-1701)
The crime occurred in Fremont or Madison counties
In the state of Idaho
Two or more persons
Combined or conspired to
Commit any crime that is illegal in the state of Idaho
And one or more of them did at least one act in furtherance of the conspiracy.
It's essential to know the crime does not have to be completed.
The title of the indictment is confusing. Is it charging the crime of conspiracy to commit murder and the crime of conspiracy to commit grand theft? Is it alleging one single conspiracy to commit both crimes? Or is it alleging the crime of conspiracy to commit murder and the separate crime of grand theft?
To further complicate matters, the punishment for conspiracy is the same as the punishment for the underlying crime, even if the crime wasn't completed. So, the punishment for conspiracy to commit first degree murder is the same as first degree murder, life in prison with the possibility of parole or the death penalty. The punishment for grand theft by deception is fourteen years in prison.
Prosecutor, Rob Wood, argued that the crime was conspiracy and that the conspiracy was to commit first degree murder and then grand theft by deception (by continuing to receive Tylee's Social Security payments after her death) as a single course of conduct. The defense argued that combining the crimes into a single count would be confusing to the jury and would require a lengthy jury instruction. Judge Boyce's questions seemed to indicate that he shared the defense's concern about jury confusion. The judge took the motion "under advisement" and said he would issue a decision once he had a chance to read the cases both sides cited in their motions and briefs. If the judge rules in favor of the defense, the prosecution must recall the grand jury and ask them to issue superseding indictments. Chad and Lori would have to be arraigned on the revised indictment. The process would be simple, as long as the state can reconstitute the same grand jury. If they can't, they will have to present the entire case to a new grand jury. We know the state recalled the grand jury for a day last year, although we don't know what was presented to them. As you know, grand jury deliberations are secret. It will probably be simple to recall the same jurors for a day and have them issue a new indictment.
The cleanest way to have charged the crime would have been to charge one count of Conspiracy to Commit First Degree Murder and one count of Conspiracy to Commit Grand Theft by Deception. However, different charges can arise from the same course of conduct. Although the conspiracy was likely to murder Tylee and continue to receive her Social Security payments, they can be (and probably should have been) charged as two conspiracy crimes.
The second of the defense motions is a bit more esoteric.
Their motion conflates two rules, one for grand juries and one for trial juries, and attempts to apply both rules to the grand jury indictment.
All criminal offenses are defined in state statute by the elements of the crime. For example, in Idaho, the prosecutor must prove beyond a reasonable doubt each of these elements of the crime of first-degree murder:
The crime happened in the state of Idaho.
The crime occurred in the county where it is charged.
The defendant killed a human being
With malice aforethought
The first rule happens pre-indictment. When the prosecutor presents a case to the grand jury, the grand jury must find probable cause to bind the defendant for trial. The grand jury must assure that there is probable cause to believe that the defendant committed every element of the crime listed in the statute. Remember, probable cause is a much lower standard than proof beyond a reasonable doubt.
Then, before the prosecutor can seek the death penalty, she has to allege that certain aggravating factors are present. Those factors are listed in the Notice of Intent to Seek the Death Penalty. The aggravating factors become additional elements the prosecutor must prove at trial. In addition to the statutory elements, the prosecutor must also prove beyond a reasonable doubt that one or more aggravating factors exist. These aggravating factors are considered additional necessary elements of the crime. In Idaho, the following is a list of possible aggravating factors:
A previous conviction for murder
More than one victim at the time of the murder
Knowingly creating a great risk of harm to many people
Committed for remuneration or the promise of remuneration
Exceptional depravity or an especially heinous or atrocious, cruel or manifesting utter disregard for human life.
Committed during the perpetration of another felony – arson, rape, robbery, burglary, kidnapping, mayhem
When the victim was a potential witness in a crime
When the defendant constitutes a continuing threat to society.
In their motion, the defense claims the same standard should apply to grand juries as to trial juries (also called petit juries) – that every element, including the aggravating factors, should be tested by the grand jury to assure there is probable cause to believe the defendant committed them. To quote their motion, "Just as Mrs. Daybell is entitled to a grand jury finding of probable cause on what charges are brought against her, she is likewise entitled to a finding of probable cause on each alleged statutory aggravating factor."
In yesterday's hearing, Lori's attorney, John Thomas, acknowledged that there is an Idaho case directly on point but said he believed the issue might be ripe for the Idaho Supreme Court to revisit it. The case, State v. Abdullah, 158 Idaho 386 (Idaho 2015), says expressly, "we also hold that there is no constitutional requirement that the State present evidence demonstrating probable cause for each aggravating circumstance to properly notify the defendant of its intent to seek the death penalty."
It's hard to see how the defense argument succeeds because Idaho statutes outline a precise sequence of events. First, the prosecution presents its case to the grand jury. Then, if the grand jury finds probable cause to believe that the defendant committed every element of the crime, they issue a true bill and an indictment. Next, the defendant is indicted for the crime, and the state has 60 days to decide whether to seek the death penalty. Finally, at trial, the prosecution must prove every element of the crime beyond a reasonable doubt, including the aggravating factors. Since the state is not even required to make a death penalty determination until 60 days after the defendant is indicted, the grand jury would only be speculating about aggravating factors.
Aggravating factors are sentence-enhancers, not charge-enhancers. It makes perfect sense to require those factors to be proven beyond a reasonable doubt at trial if the prosecutor intends to use them to enhance the defendant's sentence. Conversely, it makes no sense to require a grand jury to speculate about aggravating factors that may or may not be alleged later; aggravating factors don't affect the grand jury's decision about the charges. Judge Boyce also took this motion under advisement.
When the judge asked the attorneys whether there were any other matters, Jim Archibald said there was a matter he wanted to take up with the judge "under seal." I suspect Judge Boyce could hear my teeth grinding from three rows back in the gallery.
As most of you know, I filed a motion to intervene in the case to challenge all the sealed documents and proceedings. When I arrived in the courtroom, the trial court administrator knew exactly who I was and introduced herself to me. She gave the impression that I had been the topic of discussion with the court. I don't doubt it because unsealing the documents at this point will be a big job. I am sure some things will need to be redacted before the documents and transcripts of hearings can be released. Fremont County is a very small jurisdiction. I recognize the workload to redact documents and the recordings or transcripts of hearings will be a hardship; that doesn't relieve them of the responsibility to follow the law.
I am sure you all realize this, but these are my motions. I appear with Lauren Matthias on her YouTube channel, Hidden True Crime, when she invites me as a guest. Neither Lauren nor her husband, Dr. John Matthias, has anything to do with the motions I filed for access to sealed information. Many have asked why other news outlets didn't file motions or join in mine. Most journalists try to avoid any appearance that they have become part of the story they are covering. As a book author, I have less concern with the day-to-day reporting of the case. Because I am a retired attorney, I had the skill set necessary to draft and file the documents and argue the motions without the need for legal counsel.
I have requested a hearing on my motions to unseal the documents and hearings, but a date hasn't been set yet. I will go to Rexburg to present my argument in person when that hearing is set. I will, of course, keep you all posted.
Now a bit about the atmosphere in the courtroom and the appearance of parties and the attorneys. Nate Eaton was there, working with Court TV to live-stream the hearing. It's been all over YouTube, so I'm sure it will be easy to find. Prosecutors Rob Wood and Lindsey Blake appeared on behalf of the state. Lori was there with her attorneys, John Thomas and Jim Archibald. Lori wore black slacks, black shoes with chunky heels and a modest, gray, long-sleeved blouse made of silky polyester material. Her clothing looked to me like the typical clothing a defense attorney would provide for their client. She appeared thin. She crossed her legs left over right under the table and bounced her left foot through most of the hearing. When she walked into the courtroom, she glanced over her shoulder and smiled at someone in the gallery. Throughout the hearing, she sometimes smiled, looked bored, and sometimes perplexed. She glanced over her shoulder several times and smiled each time. At one point, she looked toward the ceiling and closed her eyes. She seemed to snicker when the judge discussed the delay because of her lack of competency and the trial date. She said something to Jim Archibald, then shook her head and smiled. When Judge Boyce was discussing the issue of the confusion in counts one and three and the possible sentences, he asked, "do you pick the lower one, do you pick the higher one, or both…." Lori broke into a wide smile. Prosecutor Rob Wood looked tired, and every time the camera landed on Lori, Rexburg Police Department detectives Ron Ball and Ray Hermosillo could be seen behind her. When Lori shielded her mouth with her left hand to say something to Jim Archibald, she was wearing a broad black band on her left ring finger that appeared made of black rubber. She likely asked her attorneys for a wedding ring for court, and this is what the jail permitted. Lori's hair was curled, and the front was held back by a hair band. Inmates are permitted reasonable grooming aids before court. Men are allowed to shave, and women are allowed to style their hair.
Lori entered the courthouse in shackles and wearing a bullet proof vest. It appeared she had a leg restraint under her slacks in the courtroom. This is a device that makes it nearly impossible for a defendant to run. Nate Eaton, of East Idaho News caught her grinning from the police car as she was driven away.
Yesterday afternoon, Vinnie Politan interviewed JJ's grandparents, Larry and Kay Woodcock. We know this entire case has been hard on Larry and Kay, and we send them our love and prayers. They said they watched yesterday's hearing by video, and they were surprised at Lori's demeanor. It seemed to them that she was not taking it very seriously. Larry and Kay expressed frustration that the children's remains have not been released so that they can have funerals. I know the awful level of uncertainty has been hard for them, and the fact that they can't get any sort of closure by honoring Tylee and JJ with a service is just more uncertainty. It's hard for them to think of their beloved children as "evidence." I also know the importance of preserving the opportunity for additional forensic testing until the trial is over. Yes, their autopsies are complete, but either side could ask for further testing or a second autopsy at any time. So they continue to wait patiently for resolution.
Unseal those lips!
Hello, Friends!
There are a few things to chat about. First, I filed motions concerning the court’s habit of sealing documents. Next, a hearing is coming up on August 16, 2023, to deal with other motions. So, as my friend Scott Reisch would say, “let’s talk about it.”
Those following the case know there have been many sealed documents and closed court proceedings in this case. The ease with which the judge seals documents didn’t seem right, but I wasn’t familiar enough with Idaho law to say for sure. Finally, one day, I sat down and did some legal research and discovered I was right. The judge is not following the law. Because access to courts is a fundamental right of the press, members of the media have a legal right to intervene in court cases for the limited purpose of objecting to sealed documents and closed court hearings. As an author, I’m a member of the press. As a retired attorney, I know how to research, write and file motions, which puts me in a unique position. If you want to read the motions’ text, you can find them at https://coi.isc.idaho.gov/.
Here is the gist for those who don’t want to read all the many pages of legal argument. The U.S. Constitution and the Idaho Constitution recognize the first amendment right of the press to access government records, meetings, and hearings. There is a presumption that government should operate openly and transparently so that we the people can assure that our public servants are conducting our business ethically and fairly. In Idaho, there are laws and rules that control the release of government records. The presumption in those laws is to release all records unless they fall into specific exceptions. The rules also say that before a judge can seal a record, they must first give all the parties and other interested people notice and then hold a hearing to determine whether sealing is necessary. Additionally, the rules say the court must consider whether some other less restrictive option, such as redaction, is possible. In the dozens of instances of Judge Boyce sealing documents and hearings, he never once held a hearing before issuing an order to seal the documents.
One set of motions, in particular, distressed me. These are the motions about whether or not Special Prosecutors Rob Wood and Rachel Smith should be removed from the case. The very purpose of the first amendment is to ensure that the people we elect to do our business are competent and honest. How can we, and even more importantly, the victims’ families, trust that the cases are correctly prosecuted if the judge bars us from seeing documents that touch on the prosecutor’s fitness? For me, that was the final straw. I filed the motions on July 30, 2022. There is always a three or four-day lag between the time documents are filed with the court and appear in the court database, and the time they are listed on the Idaho Judicial Branch’s Cases of Interest page. Once the documents were available to the public, many people were very interested.
If you follow true crime on YouTube, you’ve undoubtedly heard of CrimeTalk with Scott Reisch. Scott is a Colorado attorney, and his show features cases in the news. He invited me to be a guest on his show. That episode premiered on August 9, 2022. You can see it here https://www.youtube.com/watch?v=amM2LVTfWYY. The court hasn’t set a date yet to hear my motions, and none of the attorneys has filed a response to them.
There is a hearing happening at 9 am on August 16, 2023. That hearing will decide the prosecution’s motion to perform the consumptive testing. The judge will also decide on Jim Archibald’s motion to remand the case back to the grand jury because of the error of charging two crimes in one count. The indictment combines conspiracy to commit murder and theft by deception into count one. Archibald is right; crimes cannot be combined and must be charged as one count for each separate offense; to correct the error, the grand jury will have to be recalled and issue a superseding indictment on which the defendants will need to be re-arraigned. This hearing will be the first time both defendants and all the lawyers will be in court in person. I am planning to attend.
Chad’s attorney, John Prior, has objected to the state’s request for consumptive testing. The objection includes an affidavit from his expert, who got several facts wrong, that undermines his credibility. It’s always important for the lawyer to assure their expert is fully informed before making statements. The expert is correct, though; if the substance on the tools in the shed turns out to be Chad’s blood, it proves nothing because Chad used those tools and could have deposited that blood at any time.
People have asked why there is so little forensic evidence to test. Remember, the material the prosecution seeks to use up in testing is probably a fraction of the state’s forensic evidence that has already been tested. Let’s also remember that the children disappeared in September, but their bodies were not recovered until June. Forensic evidence degrades over time, especially when exposed to harsh weather conditions like a Rexburg winter.
I want to clear up a few questions and a bit of a misunderstanding. Lauren and John Matthias have a YouTube channel called Hidden True Crime. I appear as a guest on their show to provide legal analysis about the Daybell case. I don’t make programming decisions about their show, and they don’t make decisions about how I conduct my work on my book. I didn’t discuss filing motions with Lauren and John; they were not involved in the decision and did not join in the motions.
Many people have asked why one of the other media members covering the case didn’t object to the sealed documents and hearings. Journalists have a delicate tightrope to walk; on the one hand, they’re responsible for ensuring the public has factual information upon which to make informed decisions about their government. On the other hand, it’s also important for them to cultivate and maintain good relationships with those same government officials because journalists may need sources for other stories. It’s particularly true in smaller towns. Journalists are also taught not to make themselves part of a story they’re covering, so they can remain objective. I don’t fault anyone else covering this story for not taking action to get the court to unseal the records. We all make individual decisions based on our own situations. Justin Lum from Fox10 Phoenix and Nate Eaton of East Idaho News have done fantastic work on this case and should be commended. Justin won an Emmy award for his coverage.
Consumptive testing and interlocutory watszit?
Hi, Y’all! There have been a couple of developments in the past week or so. First, the state asked permission to conduct consumptive DNA testing on several forensic samples. Next, Chad Daybell’s attorney, John Prior, has asked to appeal Judge Boyce’s rulings regarding the disqualification of prosecutors Rob Wood and Rachel Smith.
First, let’s talk about what it means to perform consumptive testing.
This week the prosecutor in the Daybell case filed a motion and a brief for consumptive testing of some forensic material. You may recall that the state gave the defense notice of the need for consumptive testing months ago, and the defense objected. Unfortunately, the issue was delayed because of the stay in the case while Lori was incompetent.
The technology associated with DNA testing has taken another giant leap forward in the past few years. Coupled with the use of genealogical databases - made possible by the development of commercial DNA testing - there have been some astonishing cold case solutions in the news. Most notably, the arrest of James DeAngelo, the Golden State Killer.
In general, the technology improvements have allowed the ability to test smaller samples. That means that DNA can be recovered from fingerprints. Commonly called touch DNA, the sample is derived from the small amount of sweat and oil left along with a fingerprint.
There have been advances in hair testing too. In the past, to test hair samples for DNA, the root of the hair had to be attached to the hair shaft. These advancements recently allowed scientists to solve a 40-year-old murder case by testing a single centimeter of rootless hair. The hair sample was found on five-year-old Ann Pham’s body when she was murdered in Seaside, California, in 1982. Scientists could obtain DNA from the hair and compare it to a genealogical database. The murderer was identified as a 70-year-old man who escaped scrutiny during the 1982 investigation. He served prison time on unrelated sexual assault charges before being identified as Pham’s killer.
With the recent motion in the Daybell case, we learned more specifics. The prosecution is trying to take advantage of these improvements in technology. The motion lists several samples that they would like to have tested. First, hairs are caught in the duct tape inside a body bag used to transport JJ Vallow’s body. We know from the testimony at Chad Daybell’s preliminary hearing that JJ was wrapped in a lot of duct tape. Most forensic investigators will tell you that it’s virtually impossible to handle duct tape and not leave debris and fingerprints in the adhesive. The state also wants to test ridge detail on the adhesive side of the duct tape associated with JJ’s body. Ridge detail means the sample is from a fingerprint they seek to test for touch DNA. They are also asking to test “dark spots” on the handles of shovels and a pickaxe to determine whether the spots contain human DNA and, if so, whether it matches the profile of any of the defendants. Although Alex Cox is dead, he’s been named in documents as a co-conspirator. Even though his body was cremated, Arizona officials have his DNA profile from the samples taken during the medical examination of his body. His DNA profile should also be on file in Texas because of his felony conviction there. The final evidence to be tested is the most heartbreaking. The state is asking to test samples of material recovered from under JJ Vallow’s fingernails during his autopsy. When a victim resists an attacker during a struggle, the attacker’s skin cells can often be found under the victim’s fingernails.
The samples of these materials are so small that the entire specimen must be used up in the test. Typically, a portion of forensic samples is saved so that there can be additional testing. In many cases, the defense will ask for their own independent testing of each sample. And if the case comes up on appeal or retrial, additional testing may also be needed.
If there is only enough material for one test, the state must assure that the defense is notified and that the testing is done properly. The state also will wait until the trial is near before using up the single sample to be sure it’s actually necessary. In this case, the defense objected to the consumption of the evidence. Usually, where the defense objects, the judge will order that the defense and the prosecution agree to testing by an independent lab. In addition, the judge will order that each side have an expert present to observe and document the process.
Next, Chad Daybell’s attorney, John Prior, has requested permission from the court to appeal Judge Boyce’s ruling about disqualifying Prosecutors Rob Wood and Rachel Smith.
Prior has asked for an interlocutory appeal. What the heck is that? It’s an application to an appeals court to challenge a decision of the trial court before there is a final judgment in the case. In this case, it’s the denial of John Prior’s motions to disqualify Wood and Smith that Prior wants reviewed. We don’t know why Prior moved to disqualify because, once again, the judge sealed the motions.
Why is the motion for interlocutory appeal important? There are several reasons; first, it could delay the upcoming trial. Second, at worst, it could result in a dismissal of the charges.
Although appeals courts usually prioritize interlocutory appeals, the appellate process can be slow. If the appeals court does not hear and decide the issues before the January trial, it could cause a delay. On the other hand, if the court hears the appeal and agrees with Prior, it will cause significant ripples in the case that could also delay the trial. If Wood and Smith are disqualified, has the reason for their disqualification affected how the case has been conducted up to now? If so, does that prejudice the defendants in any way? If Wood and Smith’s participation has prejudiced the defendants, does it rise to the level of a dismissal of the case? If so, it may require that the state dismiss and start all over. While no one wants to see that happen, we have to fall back on the fact that this is a death penalty case and requires the utmost care and deliberation.
Stay tuned for developments, and thanks for following!
New Motions call indictments into question
Hello! It’s been a minute, but I hate to spam your email when there’s no news. I think it's better to
Let me give you a quick personal rundown for everyone who has asked, and then we will get into a bit of news and the answers to a few reader questions. My family completed our move to Boise – actually, we are in Meridian, a suburb of Boise. We like our new house, although it’s much smaller than our home in Mesa, AZ. My mother, who will turn 89 shortly, is living in an assisted living residence just five minutes from my new home, and she loves it. The care there is outstanding, and she’s enjoying the chance to socialize and make new friends. My husband is doing well with his recovery from spine surgery, but it’s a slow process and hard work.
There have been some developments in the Vallow/Daybell case. You may recall that Lori’s previous attorney, Mark Means, filed a motion to disqualify the prosecuting attorney, Rob Wood, on December 15, 2020. Means based his motion on a claim that Wood had acted improperly in a conversation he had with Lori’s sister, Summer Shiflett. The conversation occurred in Arizona before Summer had an interview with law enforcement. Summer’s attorney, who also represented Zulema Pastenes, recorded the conversation. The court held a hearing and ruled that Wood did not do anything improper and denied Means’ motion.
Recently, Chad Daybell’s attorney, John Prior, filed a motion to disqualify Rob Wood and/or Rachel Smith. Prior filed the motion on March 8, 2022. I can’t be any more explicit about the substance of the motions because the court seals documents and hearings at the drop of a hat. On July 5, 2022, the court issued an order denying Prior’s sealed motion and outlining the court’s reasoning in yet another sealed Memorandum Decision and Order. We don’t know why John Prior thought Wood and Smith should be disqualified, but I have said before that I believe it has something to do with the grand jury. We will see if I’m right if the court ever unseals the documents. Except for specific personal data like medical records, the court should unseal the records once the trial is over. If Lori’s attorney makes her mental health an issue at trial, the court should consider any privilege waived and release her mental health records too.
Many people have asked, “why is it so quiet?” The answer is that the defense teams are hard at work preparing for trial. The defense investigators are re-interviewing every witness, except for law enforcement officers. The teams will comb through every line of discovery and turn over every stone. Each defense team will develop its own theory of the case. Sometimes the defense theory is that someone else committed the crime (remember Chad’s daughter, Emma, claimed Chad was set up by Lori and her brother, Alex?). The defense theory could also present an alibi – that the client could not have committed the crime because they were elsewhere at the time. Sometimes the defense theory is that the defendant acted in self-defense or that the crime otherwise couldn’t have happened as the prosecution says it did. And sometimes, the only option for the defense is to poke as many holes in the prosecution’s case as possible to introduce reasonable doubt and show that the state has not met its burden of proof.
In addition to preparing the actual case, the litigation team is organizing trial exhibits and assembling proposed jury questionnaire questions. The mitigation team is hard at work digging into each defendant’s background, looking for reasons the court should not impose the death penalty.
Many people have asked whether I think there are plea agreements in the works. Defendants can take a plea any time before the jury renders a verdict. I have seen trials stop mid-stream for a plea (usually when the trial isn’t going well, and the prosecutor wants something from the defendant, like information). However, the fact that the teams are moving full speed ahead with preparation tells me pleas are unlikely. It’s hard to say why. Is it because the prosecution feels they have a slam-dunk case and are insisting on the death penalty? Possibly, but death penalty cases are expensive, and all trials carry an element of uncertainty. Most prosecutors will settle for life without the possibility of parole in exchange for a sure thing. Many are also asking if I think we will see the lovebirds turn on each other. I am sure there will be some finger pointing and suggestions that one influenced the other. It remains to be seen if that will amount to a full-fledged turn.
Despite the recent “quiet,” Lori’s team did file some motions on July 12, 2022. The Motions are titled, Motion to Incorporate Federal & State Constitutional Grounds in Support of Future Motions and Objections, and two Motions to Remand to Grand Jury for Further Proceedings.
I had a look at the documents today, and I have an explanation. Grab your Ghillie suit because we’re about to get down in the legal weeds. The first of the two motions to remand is probably the hardest to explain. The motion conflates two rules, one for grand juries and one for trial juries, and attempts to apply both to the grand jury indictment.
All criminal offenses are defined in state statute by the elements of the crime. For example, in Idaho, the prosecutor must prove beyond a reasonable doubt each of these elements of the crime of first-degree murder:
The crime happened in the state of Idaho.
The crime occurred in the county where it is charged.
The defendant killed a human being
With malice aforethought
To understand the defense motion, we have to understand two well-established rules.
First, when the prosecutor presents a case to the grand jury, the grand jury must find probable cause to bind the defendant for trial. The grand jury must assure that there is probable cause to believe that the defendant committed every element of the crime listed in the statute. Probable cause is a much lower standard than proof beyond a reasonable doubt.
Second, before the prosecutor can seek the death penalty, she has to allege certain aggravating factors were present. These aggravating factors become additional elements the prosecutor must prove. In addition to the statutory elements, the prosecutor must also prove beyond a reasonable doubt that one or more aggravating factors exist. These aggravating factors are considered additional necessary elements of the crime. In Idaho, the following is a list of possible aggravating factors:
A previous conviction for murder
More than one victim at the time of the murder
Knowingly creating a great risk of harm to many people
Committed for remuneration or the promise of remuneration
Exceptional depravity or an especially heinous or atrocious, cruel or manifesting utter disregard for human life.
Committed during the perpetration of another felony – arson, rape, robbery, burglary, kidnapping, mayhem
When the victim was a potential witness in a crime
When the defendant constitutes a continuing threat to society.
In their motion, the defense claims the same standard should apply to grand juries that applies to trial (also called petit) juries – that every element, including the aggravating factors, should be tested at grand jury to assure there is probable cause to believe the defendant committed them. To quote the motion, “Just as Mrs. Daybell is entitled to a grand jury finding of probable cause on what charges are brought against her, she is likewise entitled to a finding of probable cause on each alleged statutory aggravating factor.”
It’s hard to see how this argument succeeds. The statutes lay out a precise sequence of events. First, the prosecution lays out their case for the grand jury. Then, if the grand jury finds probable cause to believe that the defendant committed every element of the crime, they issue a true bill and an indictment. Next, the defendant is indicted for the crime, and the state has 60 days to decide whether to seek the death penalty. Finally, at trial, the prosecution must prove every element of the crime, including the aggravating factors, beyond a reasonable doubt.
The state is not even required to decide on the death penalty until 60 days after the defendant is indicted. So how, then, can the court require the grand jury to speculate about probable cause for the aggravating factors before anyone even knows if they will be invoked?
Aggravating factors are sentence-enhancers, not charge-enhancers. It makes perfect sense to require that those factors be proven beyond a reasonable doubt if the prosecutor intends to use them to enhance the defendant’s sentence. Conversely, it makes no sense to require a grand jury to speculate about what aggravating factors may or may not be invoked because it does not affect the decisions surrounding the charge.
The second motion actually makes a better legal argument, and the defense may win that one. An indictment may list as many counts as the prosecutor thinks she can prove, but each count must allege only one crime.
In the indictments for both Lori and Chad, counts one and three allege two crimes in a single count. The heading reads “Conspiracy to Commit First Degree Murder and Grand Theft By Deception.” Not only is the heading unclear – is the charge for conspiracy to commit murder and conspiracy to commit grand theft, or does the conspiracy apply only to murder - either way, they are two separate and distinct crimes. There is no strategic reason for this; it’s a rookie mistake. The prosecution wanted to tie the conspiracy to commit murder charge to the grand theft charge so they could later use the “for remuneration” aggravating factor. Still, she should have pled them as two separate counts.
Indictments are important. Under the Constitution, the defendant is entitled to be informed of the charges against them. That notification is accomplished by indictment, so indictments must be accurate to assure the defendant knows the charges and can defend against them.
There are a couple of possible remedies for the current problem. The prosecution can recall the jury (it should be the same people who initially reviewed the case) and ask them to revise the indictment by splitting the counts into two separate counts OR ask the court to strike the theft charge simply. The prosecutor may not want to lose the theft charges, but to be clear, the defendant doesn’t need to be charged with the crime of theft to allege that remuneration was at least part of the reason for the murder. Aggravating factors have to be proven beyond a reasonable doubt but don’t have to be charged as their own separate crimes. It’s understandable if this all seems clear as mud. These sorts of technical legal arguments are sometimes hard to parse out. You probably want to know the bottom line – can the entire indictment be tossed out? The answer is that it’s unlikely, but if the court or the prosecution doesn’t take some steps to cure the error, it could be a good issue on appeal.
Finally, I want to address a question from reader, Brenda Barnes. Brenda asks an excellent question about what evidence is allowed and what is kept out. The idea that some persuasive evidence might be kept out of a trial frustrates laypeople.
When a trial is presented to a finder of fact, it is important that the evidence presented is as reliable and accurate as possible. Let’s remember, whether it’s a civil or a criminal case, the outcome will profoundly impact someone’s life, so we want to make sure the decision is based on a firm foundation. Think of it this way. Which is more persuasive, a person who testifies, “Jake told me Sarah said she paid her phone bill or is it Sarah offering the court a copy of a canceled check? The rules of evidence are designed to test the evidence and ensure only the most reliable is presented to the jury.
The first question is whether the evidence is relevant. If it is relevant, does its prejudicial effect outweigh its probative value? It’s a rule that’s sometimes hard to understand. Let’s say you have a sex abuse case involving Ivan and Sophie. Sophie claims that Ivan touched her inappropriately in a bar. She claims she told him to stop, and he didn’t. Is the fact that Ivan was just paroled after serving a five-year sentence for rape relevant? Probably. Is it also prejudicial? Absolutely. Why? Because we can’t present a jury with information about Ivan’s past actions to prove that he must have acted the same in this instance. We have to present actual evidence that Ivan did the crime he is accused of.
This means that some relevant evidence stays out. The most likely information to be excluded is hearsay. Hearsay is tricky. A statement is only hearsay if it’s being offered to prove the truth of what is being said. In legalese, it’s being offered to prove the proof of the matter asserted. So in the above phone bill example, Jake’s statement was being used to prove Sarah paid her phone bill and so would be kept out.
Hearsay can be used to prove other things, though. For example, if I ask a witness in a nightclub fire, “what did you hear?” and the witness says, “I heard Frank say, ‘holy shit, the fireworks box is on fire, run!’” It probably comes in under a couple of hearsay exceptions. First, it comes in because the law believes that a statement made when a person is under duress or in the throes of an exciting event is probably true. Second, it comes in to show the effect it had on the listener. “What did you do when Frank said that?” “I ran like hell.” “And what happened when you reached the exit?” “The door was chained shut, and people kept crowding in behind me.” If Frank is a defendant in the case, it would also come in as a statement of a party.
Don’t feel bad if any of this makes your eyes glaze over. Law students spend an entire school year learning the rules of evidence, and the rest of their careers, perfecting their knowledge and learning to think fast on their feet. Even judges get it wrong in the heat of a trial. That’s why appeals courts exist. The purpose of the rules of evidence is to assure the most reliable information gets presented to the jury, which can sometimes result in some information we may think is essential being excluded.
I want to take a moment to say thanks for your support, good wishes, and positive feedback. When the trial date was set, it seemed very far off, but now January 9, 2023, feels right around the corner. Lauren and I are developing some exciting new features for the trial, so look for announcements soon.
What is an appeal and why do I care?
Hello, my friends! I hope all is well with you all. The new house in Idaho is shaping up nicely, my husband's back is improving slowly, and my mother loves her new home in a nearby assisted living residence. I'm grateful for how well things are working out.
There have been a lot of questions directed to my email about appeals, so I thought I'd take a moment and explain some of the ins and outs.
There are three levels of courts in both the state and federal systems. In the federal system and most states, the lowest level is the trial court, the intermediate level is the appeals court, and the highest level is the supreme court. Some states call the courts by different names.
The trial court is the first level. To begin, let's look at the way the American system works. First, a complainant (the state in criminal matters) files a complaint (in family law matters, it could be called a petition, and in criminal cases, it's an indictment or an information). That is the document that initiates the legal controversy. To initiate the suit, the complainant must have standing. Standing means that the person has an interest in the controversy – that is, they have something at stake. Once the complainant files, each party has time to investigate, exchange discovery, and file motions before a trial is set.
When the trial occurs, each side can call witnesses, present physical evidence, and cross-examine the other side. The trial's purpose is to test the evidence and find out the facts. Either the judge or a jury can act as the finder of fact. The finder of fact determines which evidence and testimony are most credible. All civil matters are presented to a jury who must find the evidence that the defendant has proven their case by a preponderance. In family law matters, the judge hears the evidence and makes decisions by a preponderance of the evidence. The defendant can decide whether the finder of fact will be a jury or a judge in criminal cases. The standard of proof in a criminal case is beyond a reasonable doubt. In a jury trial, the jury weighs the evidence, and the judge acts as the traffic director. The judge determines, guided by the rules of evidence, which testimony and evidence will be admitted and considered by the finder of fact. At the close of each side's presentation of evidence, the finder of fact renders a verdict. If either side objects to the verdict, feels that it was not based on fact, or feels procedural mistakes were made at the trial, they can appeal. In most states, the prosecution in a criminal case has limited appeal options.
The appeals court is the body that hears appeals from the trial court. It is their job to ensure that the trial court got it right. The court is usually made up of a panel of judges. Not every ruling can be appealed. Some evidentiary rulings are appealable, but for the most part, a case must be final for a ruling to be appealed. Appeals are not second trials; the appeals court is limited to information offered at the trial and whether errors were made. In most but not all appeals, the appeals court can review a written record of what was said at trial. The appeals court cannot see and hear the witnesses and assess their credibility, so they generally defer to the judge or jury who had the advantage of seeing the witness. There are different standards in appeals. Neither side can call witnesses for an appeal. The appeals panel only considers the trial transcript and the written legal arguments, sometimes supplemented by a live attorney who presents argument. A trial is a carefully choreographed dance, and nowhere is that more evident than in a death penalty case. The appeals court is there to assure that the trial attorneys and judge did the right steps in the right sequence. Generally, the attorneys at the trial level must raise an issue to be considered at the appeals court. For example, someone had to raise it before trial for the appeals court to rule on whether Chad and Lori's cases should have been tried together or separate. Now, because it has been raised as an issue, and the trial judge has ruled, it can be an issue on appeal. Appeals courts receive every appeal filed and do not have the discretion to refuse to hear cases. In many states, though, the appeals courts can simply confirm the lower court's ruling without writing a formal opinion. In my home state, we call that AWOP (affirmed without opinion). It means the court upheld the lower court's ruling without writing a formal opinion explaining why. The bulk of appeals are AWOP'd.
In both federal and state systems, the supreme court is the final word. If the supreme court declines to take up the case, the appeals court's ruling stands. The federal supreme court only hears matters that raise a constitutional issue. Every year the U.S. Supreme Court receives about 10,000 petitions and only hears about 80 cases. The U.S. Supreme Court has the sole discretion in determining which cases will be heard. Sometimes the chief justice sets a focus for the annual session, such as second amendment gun rights or abortion cases or search and seizure issues. The court looks for novel issues that apply the constitution to some state or federal law. State supreme courts review appeals court rulings to determine if the issues require further interpretation of a state or federal constitutional issue. Idaho death penalty appeals bypass the appeals court and go directly to the state Supreme Court. There is no automatic appeal of a death penalty sentence in Idaho, as in some states.
Let's talk a little about what happens if problems arise during a trial. First, there is a misperception that a mistrial can derail a case before trial. Mistrials are very rare. They occur only when the trial is underway with a jury empaneled, and then some misconduct by either the prosecution or the defendant that would bias the jury is discovered. It could be evidence offered improperly or witnesses whose testimony creates improper bias.
Mistrials aren't appeals. If there is a mistrial, the prosecution can and usually will refile the case. An appeal happens when the trial is over, and the finder of fact has issued a verdict. In a criminal trial, the judge must enter and judgment of conviction and then a judgment or order of sentence. Once they are filed, the defendant files a notice of intent to appeal and an appellate brief. In general, appeals argue that the trial court made mistakes. The mistake has to be pointed out to the trial judge during the trial before it can become an issue in an appeal. A trained and experienced lawyer in appellate practice will then review the entire trial transcript and develop an appellate strategy. The appeal will claim that the trial court erred. The appeal will allege specific errors and present a legal argument as to why those errors warrant a reversal of the trial court's judgment of conviction.
Let's use a concrete example. We know that Lori has not waived her right to a speedy trial. We also know that both the Idaho state statute and the Idaho Constitution require that if a person's speedy trial rights are violated, the charges against them must be dismissed. There are some narrow exceptions to the six-month speedy trial rule that permits a judge to extend past the six-month point. The prosecution asks the judge to find there is. "good cause" to extend Lori's trial to January. It's a risky decision for Judge Boyce, and he's demonstrated he doesn't like risk. If the judge finds good cause to extend Lori's time to January, she will most certainly appeal. If the Idaho Supreme Court agrees with Lori that her speedy trial rights were violated, the only remedy is to dismiss her case. That means she walks. On the other hand, Chad has already waived his speedy trial right. That means that if the judge accelerates Chad's trial to coincide with Lori's October date, and Chad appeals the outcome if the court finds for him, the worst that could happen is that he could get a new trial.
What about those "phantom" motions that don't appear in the court database? It seems John Prior has filed Motions to disqualify prosecuting attorney (we don't know if this applies to Rob Wood and/or Lindsey Blake); disqualify out of state prosecutor (Rachel Smith); Dismiss Special Prosecutor (Rob Wood and/or Rachel Smith); disclosure of Rachel Smith's Cases and a motion to strike. In this instance, a motion to strike would likely apply to some allegation in the defense motion. What do we know about these motions? Virtually nothing because not only are they sealed, but they aren't even listed in the court database. We know these have been filed because Rob Wood filed a motion to seal his response to the phantom motions. We know they were filed on behalf of Chad Daybell; they seek to dismiss and/or discharge some or all of the prosecutors. It's unclear from the caption whether the motions apply to Lindsey Blake too, or just Rob Wood and Rachel Smith. The prosecution is also asking the defense to produce any discovery they might have that relates to these motions.
The larger question is, why is John Prior seeking to disqualify Rob Wood and Rachel Smith? Remember when John Prior tried to dismiss the indictment because of a problem with the grand jury? The judge denied his motion, and I am speculating that this new motion is another way to attack that issue. If Rob Wood had some sort of contact or relationship with a grand juror that could cause bias to the grand jury, it could be enough to disqualify them.
Wristbands? I do still have some wristbands. I need to open a new P.O. Box for requests. I hope to do that soon. I was able to hand out quite a few at CrimeCon. By the way, for those of you who aren't familiar with it, CrimeCon was a blast. The next one is in Orlando, FL, in September 2023. Check it out here: https://www.crimecon.com/CC23.
I'm Baaaack!
Hello Friends – Yes, it’s been a minute – since March 25, to be precise. Since then, I’ve sold a house, bought a house, moved out of a house, and moved into a house 949 miles away. I also moved my mom into an assisted living residence about ten minutes away from my new house. And I still managed to make it to CrimeCon 2022 in Las Vegas! More about CrimeCon later.
There have been many significant developments in the Vallow/Daybell case.
There have been some recent developments in the case that warrant discussion. Unfortunately, the past weeks have been a blur for me, so forgive me that I’m just catching up.
First, the big news was that Lori Vallow was restored to competence and fit to stand trial. She was arraigned on April 19, 2022. She declined to speak at her hearing, and the judge, as is typical, entered a not guilty plea on her behalf and set her trial to begin on October 11, 2022. Chad Daybell’s trial is scheduled to start on January 9, 2023.
The judge denied John Prior’s motion to sever the cases and his motion to dismiss the indictment. Judge Boyce then denied the state’s motion to reconsider the change of venue and bus a jury in instead.
The state has now filed a motion titled “ Motion to Find Good Cause to Continue Trial & Prevent Improper Severance.” The prosecution asks the court to find that there is good cause to continue Lori’s trial to coincide with Chad’s. They say, “The relevant part of Idaho Code §193501 provides that the Court must order that a prosecution or indictment be dismissed if not brought to trial within six months, “unless good cause to the contrary is shown.” The State bears the burden of demonstrating that good cause exists for delay of a trial beyond the six month statutorily prescribed time period.”
At the heart of the argument is the question, what constitutes good cause? As the state points out, “Ultimately the Clark court decided that good cause could be determined by an examination of the reasons for the delay and concluded “good cause means that there is a substantial reason that rises to the level of a legal excuse for the delay. ” Id. at 260.”
“In State v. Clark, the Idaho Supreme Court took the opportunity to analyze what constitutes good cause in relation to the U.S. Supreme Court’s four factor balancing test announced in Barker v. Wingo, 407 US 514 (1972): The Court adopted a balancing test in which the conduct of the defendant and the prosecution were to be weighed and identified four primary factors the courts should evaluate in determining whether a particular defendant has been deprived of his speedy trial right: (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. Clark, 135 Idaho 255 at 258.”
West’s Encyclopedia of American Law defines a legal excuse as “The explanation for the performance or nonperformance of a particular act; a reason alleged in court as a basis for exemption or relief from guilt.”
Generally, the question before the court is who is responsible for the delay? So, for example, when a defendant who is out on bail and absconds is caught three years later, she can’t demand her case be dismissed on speedy trial grounds because her behavior was the basis of the delay.
So, can we attribute the delay to Lori’s mental illness, saying the delay was her fault, so there’s good cause to delay her trial to coincide with Chad’s? The short answer: no. If there were proof Lori was malingering, the answer would be different. While I understand many believe her mental illness is a ruse, so far, there’s no proof. The time Lori was incompetent is considered tolled (that means it doesn’t count in time computation). We know the length of the delay, and it’s clear that Lori asserted her right to a speedy trial. So the only remaining question is whether she will be prejudiced by the delay from October until January.
The state’s contention that “The Court’s determination of good cause to continue Defendant Vallow Daybell’s trial date for a short period as proposed by the State ensures the cases remain properly joined and avoids further complications in the future.” may or may not be true. The right to a speedy trial is considered nearly sacred. Whatever Judge Boyce rules, there will surely be an appeal of his ruling. The question becomes, which decision is the least likely to be overturned by the appeals court?
The state cites case law, particularly the case of State v. McNew, 131 Idaho 268, 271-272 (Ct. App. 1998). The Vallow case can be easily distinguished from McNew, though. In the McNew case, the defendant was primarily responsible for the delay. Like Vallow, McNew asked for a psychological evaluation, but it’s there that the similarities end. First, McNew was not in custody. It is an important distinction because there is a heightened obligation to provide a speedy trial when a defendant is in custody. McNew contributed to the delay by dragging his feet in getting the evaluation done. Once the evaluation was done, it was shown that he was competent.
Conversely, in Vallow’s case, she was in custody, the evaluation was done promptly, and she was found to be incompetent and committed to the Idaho Department of Health and Welfare for treatment. See the difference? There’s also one other critical piece of evidence: McNew’s attorney indicated in court that his client intended to waive his right to a speedy trial. Generally, the court requires that speedy trial waivers be put in writing out of an abundance of caution. However, the appellate court can use the verbal assertion to prove the defendant’s intentions and state of mind.
Vallow’s defense team has filed a response. Some interesting tidbits are being telegraphed if you read between the lines. Here are some of the high points.
Lori is currently competent, but that could change at any moment. She has been referred for a neuropsychological examination. For the uninitiated, a neuropsychological examination is a hybrid – in the territory where psychology and psychiatry intersect. The evaluation will determine if there is some organic, physical reason for Lori’s mental illness, such as a physical brain injury or defect.
Her lawyers have carefully explained to Lori the pros and cons of a joint trial. Nevertheless, Lori wants a joint trial with Chad Daybell and does not want to waive her right to a speedy trial.
Her attorneys have explained the gravity of the charges and the necessity to prepare for such a complex and consequential trial, and she’s not budging. They encouraged her to consider that a short continuance would permit more time for them to prepare, and despite that, she declined.
Her attorneys are carefully covering their butts. They are documenting before the court that they have fully advised Lori and that she has chosen to exert her speedy trial rights despite their good advice.
What are Judge Boyce’s options at this point? He can find good cause for the short delay and move her trial to January. He can find good cause to sever the cases and leave both dates where they are, or he can move Chad Daybell’s trial up to October. Let’s remember that Chad has already waived his speedy trial rights. Unless there is a speedy trial issue, the scheduling of trials is entirely within the judge’s discretion. If the judge rules that Lori’s case will go forward in October, the state could ask the court to accelerate Chad’s trial to avoid severing them. John Prior’s position is a little harder to discern. On the one hand, he’s repeatedly reported he either is or will be ready for trial. On the other hand, he’s also in support of severed trials.
If Judge Boyce finds good cause to delay Lori’s trial and moves her date to November, she will undoubtedly appeal. If the appeals court sides with Lori and finds her speedy trial rights were violated, the only remedy is to dismiss her charges. There’s no do-over. That’s a lot of risk, and Judge Boyce has already shown himself to be careful, nearly to a fault. If he moves Chad’s trial up, and if Chad appeals and wins, the remedy would be a new trial for Chad. If Judge Boyce severs the trials, and if Lori or Chad appeals and wins again, the remedy would likely be a new joint trial. My prediction: unless Lori changes her mind and waives her right to a speedy trial, her trial will happen in October, with or without Chad.
Now a personal anecdote. A defendant was charged with an armed robbery. He was in custody and demanded a speedy trial. He also reported dissatisfaction with his court-appointed lawyer and demanded that the judge appoint him a new attorney, claiming he couldn’t work with his current lawyer. As it happened, I was next on the appointment rotation. The problem? His trial was scheduled nine days later. The judge had a lengthy discussion on the record with the defendant. He pointed out that he was asking for a new attorney, knowing that the new lawyer would only have nine days to investigate and prepare for his case. He suggested that the defendant reconsider his decision. The defendant was adamant; he had been in the system before and was something of a jailhouse lawyer. The judge appointed me and was clear on the record that I was to do my best to prepare in the nine days available to me. My assistant, investigator, and I dropped everything and prepared as best we could for the trial. After a two-day jury trial, the defendant was convicted, and the judge sentenced him to a lengthy mandatory prison sentence. Of course, he appealed, claiming ineffective assistance of counsel, among other things. In my jurisdiction, appeals were defended by appellate defense lawyers. I provided the appellate lawyer with the file and explained the situation. I had kept careful track of all the work we had done to prepare for the case, including all the extra evening and weekend work. When the appeals court ruled on the case, they found that there was nothing more my team could have done under the circumstances and with the time constraints. It was a case of, as this particular judge was fond of saying, “be careful what you wish for.”
Oh, how I’ve missed you and missed writing these newsletters! Amid all the packing, moving, and unpacking, I got the chance to attend CrimeCon 2022 in Las Vegas, which was amazing! I had the chance to meet people in person I had only met online, including Kay and Larry Woodcock, and other creators, including Scott Riesch of Crime Talk and Gigi from Pretty Lies and Alibis. I also spent time with Lauren, Dr. John Matthias, and Julie Holden of Hidden True Crime and met many of our followers. Next year, CrimeCon will be in Orlando, Florida, at the Orlando World Marriott on September 22-24, 2023. I hope we’ll see all of you there.
I’ll be chatting with Lauren Matthias on YouTube at Hidden True Crime on Friday. So grab your favorite beverage and join us for TGIF!
Motion to Sever andMotion to Dismiss
Hello Friends – there is so much going on right now my head is swimming!
There are developments in the case and in my life as I follow the case. First, we’ve found a house in Meridian, Idaho, just outside Boise. Our home in Mesa will be on the market shortly, and I’m packing and trying to get organized. Everyone in my household is on the mend, making things much easier. While I know the move will put me closer to this important story, the process is overwhelming at times.
There have been some recent developments in the case that warrant discussion. Unfortunately, the past week has been a blur for me, so forgive me that I’m just catching up.
There were two hearings in the past week, first, the motion to sever the cases and, next, the motion to dismiss the indictment. In both hearings, the court heard or received in writing information that was not available to the public, making a precise analysis impossible. So instead, we’re forced to speculate and read the tea leaves. I’ll do my best.
Let’s talk about the Motion to sever the case. The judge denied the motion to sever the cases. Again, I can’t be sure what was argued. Still, it appeared Prior’s argument boiled down to, “I can’t prepare because I don’t know whether Lori’s incompetence will keep her from appearing at the trial in January 2023.”
As discussed in my last newsletter, the basis for severing a trial is proof that one codefendant will be prejudiced by information brought in against the other. For example, a hearsay statement of a defendant is admissible in court against the defendant that made the statement.
Let me give you a hypothetical. (Lawyers loooooveeee their hypotheticals.) Let’s say Chad tells Melanie Gibb, “Mel, when Alex told me Lori wanted the kids out of the way, we did what she wanted; now I’m really afraid the police are going to find the bodies of the children where Alex and I buried them in my yard.” We have a couple of hearsay issues. First, Alex is dead, and Mel telling the police what Chad says Alex said is double hearsay. BUT there are exceptions – reasons the judge could let in the evidence because it falls under an exception to the hearsay rule. There are two reasons evidence isn’t hearsay. First, because it isn’t offered to prove the truth of the matter asserted – that Chad killed the children and buried them in his backyard – OR that the evidence has some “indicia of reliability,” such as that it is a statement made by a party and is a statement against their interest.
The issue of hearsay is essentially a sixth amendment protection. A defendant has a constitutional right to cross-examine witnesses brought against them. However, if the evidence is something someone told someone else, the actual speaker is not available to cross-examine.
In the case where the statement against interest is a confession, Bruton applies. Bruton, 391 US 123 (1968) is a case where codefendants were tried together. The question was whether George Bruton was prejudiced when the confession of his codefendant was admitted. Bruton’s codefendant confessed to a postal inspector in an armed postal robbery. Neither defendant took the stand. Because the hearsay statement was a statement against the interest of a party (the codefendant), it was admissible hearsay against the codefendant, but not against Bruton. The court ruled that even though the jury was instructed to disregard the admission when deciding Bruton’s guilt, the statement was too prejudicial to be sure the jury could disregard it.
Here, we heard prosecutor Lindsey Blake say that there were no confessions that would constitute Bruton material, so there was no need to sever the trial. I don’t know whether Prior was fishing for assurance that there were no confessions or whether he was setting the issue in stone so that the prosecution couldn’t come back later and sandbag him. Either way, he got the prosecutor on the record saying there is no Bruton material and that they, therefore, do not intend to offer any. Judge Boyce is correct; it isn’t the job of the court to sift through every statement to determine if there might be prejudicial statements.
The judge was also right that it’s not enough to claim the uncertainty as to whether Lori will be competent by January 2023. Most criminal trials deal with many uncertainties, and lawyers must over prepare by preparing for contingencies. But, unfortunately, that’s just part of the job.
All indications are that Lori is still incompetent. Many readers questioned the statements made by Lori’s brother, Adam Cox, that Lori is refusing to talk to her medical providers and perhaps even her lawyer. They wonder if this is a form of malingering. Yes, it could be. There’s no indication Lori is catatonic and not speaking to anyone. In fact, Adam reported that Lori is talking to their mother, Janis Cox, and hasn’t changed her doomsday beliefs. Many people pointed to the case of Brian David Mitchell, the man who kidnapped Elizabeth Smart. It took several years and several evaluations to prove that Mitchell was malingering, but he was eventually declared competent and tried. The Mitchell case should give you hope that eventually, even practiced malingerers are caught. Finally, some asked if I thought Lori’s call to the LDS lawyer indicated she was competent. That’s a hard one since we don’t know the actual substance of the call. Let’s remember that Lori didn’t spontaneously make the call; a staff person at the facility directed Lori to make that call as “homework” in her treatment. The level of sealed documents and proceedings is frustrating for us, but Lori has a right to privacy about her medical treatment and a right not to have the jury pool tainted by too much publicity.
Now let’s turn to the motion to dismiss the indictment. Once again, the nitty-gritty of the issue is contained in sealed memoranda. Reading between the lines, it appears John Prior has information that one or more of the grand jurors were prejudiced. He likely received information that one or more of the jurors knew someone involved in the case or expressed an opinion about the case before they were called to sit on the grand jury. It’s not unusual for defense counsel to investigate the grand jurors. But, as Lindsey Blake pointed out, a grand jury is different than a trial jury and is held to a different standard.
We heard a lot about a petit jury versus a grand jury. Those are old terms that aren’t used much anymore but still show up in old cases. So let’s break it down.
A grand jury is a panel of citizens charged with the task of reviewing the facts of the case to determine if there is sufficient evidence to bind the defendant over for trial. The legal standard is low. The question is: does a preponderance of the evidence (51%) prove that a crime was committed and that the defendant is the person who committed it? The rules of evidence don’t apply, and hearsay evidence can be considered.
In contrast, a petit jury is a trial jury. These are the citizens who will hear all the admissible evidence, weigh the facts and the credibility of the witnesses, and determine beyond a reasonable doubt (99%) whether the defendant committed the crime they are charged with. In a death penalty case, these are also the citizens who will hear the arguments for and against the death penalty and determine whether there are factors that mitigate imposing the death penalty.
Lindsey Blake outlined the statutes and case law that control challenges to the grand jury, so I won’t repeat them here. However, if you are interested in a deep dive, you can look at everything she cited in her argument. We don’t know which grand juror is being challenged or why. That information is contained in John Prior’s 55-page memorandum. The judge heard the general argument, gave the state extra time to reply to Prior’s memo, and then gave Prior time for rebuttal. While it’s impossible to know why a grand juror is being challenged, dismissing an indictment for grand jury misconduct is much harder than for a trial jury. Even if the indictment is dismissed, the state can either call a new grand jury or schedule a preliminary hearing. In the most extreme case – say, where the prosecution was actively involved in threatening or bribing a grand jury – the court could dismiss the indictment “with prejudice,” meaning it could not be refiled.
I’ll be chatting with Lauren on Hidden True Crime this evening. Join the chat and ask us your questions.
Joinder and Severance - what the heck?
Hello Friends, it’s been a minute, but I don’t like to jam your inbox unless there’s something to talk about, and the case has been pretty quiet lately. However, there are a few new developments to talk about today.
First, we understand that a sealed decision and order may have been filed in Lori’s case. It’s a rumor at this point because the state of Idaho’s website has been down since yesterday, and it’s unclear what that order means. We know there was a sealed report filed from the Idaho Department of Health and Welfare a couple of weeks ago. The new document could be either a finding that she is competent or that she isn’t. It seems that a competency finding would be more public, so I’m leaning toward a finding that she still is not competent, but with all these sealed documents, it’s anyone’s guess.
There is a hearing on March 8, 2022, to consider Chad’s motion to sever the trials. The state filed an objection to Chad’s motion and a legal memo supporting their position. Here is how I think about joinder and severance: joinder is about convenience, severance is about fairness.
This is the Idaho rule on Joinder:
Idaho Criminal Rule 8. Joinder of Offenses and of Defendants
(a) Joinder of Offenses. Two or more offenses may be charged on the same complaint, indictment or information if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. The complaint, indictment or information must state a separate count for each offense.
(b) Joinder of Defendants. Two or more defendants may be charged on the same complaint, indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. The defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
Rule 8(b) is the section relevant to our discussion. It’s clear that the defendants were charged on the same complaint, and under this rule, they should be tried together, UNLESS the situation falls under the exception listed in Rule 14.
Idaho Criminal Rule 14. Relief from Prejudicial Joinder
If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in a complaint, indictment or information, the court may order the state to elect between counts, grant separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the state to deliver to the court for inspection in camera any statements or confessions made by the defendants that the state intends to introduce in evidence at the trial.
The prosecution, in this case, moved to join the defendants and the trials. Lori’s former counsel, Mark Means, objected to the joinder without any legal basis (as he frequently did). Chad’s attorney, John Prior, who does understand the law, did not object because the situation clearly falls within the joinder statute; the court granted the motion.
Here is the thing, an objection to joinder is not the same as a motion to sever. Objecting to joinder means you believe the defendants did not participate in the same transaction or series of transactions and therefore don’t qualify for joinder. Joinder is about consistency, efficiency, and resources. It’s about only using court time once, only taking testimony from a witness once, only getting rulings on evidence once.
Severance, on the other hand, is about fairness and prejudice. Let’s say a piece of evidence is admissible in the trial as it applies to Chad but would be inadmissible as it applies to Lori. It’s impossible to present the evidence to the jury and then tell them to disregard it in their deliberations on Lori’s charges. More subtly, the very nature of the charges could prejudice Chad if the trials are conducted together. We all know that there is an ingrained social bias against mothers who participate in the murder of their own children. For most of us, it’s an act that is even more reprehensible than when the murder of a child is committed by anyone else. So the very fact of Lori sitting at the same defense table as Chad colors the jury’s view of both of them and could prejudice Chad.
Since severance is very much a constitutional issue, we can get some guidance from federal law. The federal courts say this about severance.:
“There is a preference in the federal system for joint trials of defendants who are indicted together.” Zafiro v. United States, 506 U.S. 534, 537 (1993). Federal Rule of Criminal Procedure 14(a) allows for severance of properly joined defendants if “the joinder. . .appears to prejudice a defendant.” A defendant seeking severance must show that “joinder is so manifestly prejudicial that it outweighs the dominant concern with judicial economy and compels the exercise of the court’s discretion to sever.” United States v. Brashier, 548 F.2d 1315, 1323 (9th Cir. 1976).
Finally, we know Judge Boyce is a cautious judge. For that reason, it’s likely much of the upcoming hearing on March 8, 2022, will be sealed. The reason for that is that the attorneys will have to discuss specific evidence that will be brought up at trial. Doing so in a public hearing could further taint the jury pool. There is also some precedent in Idaho. In 2006, Brian Draper and Torey Adamcik were charged with the murder of their high school classmate, Cassie Stoddart. There was a great deal of publicity surrounding the case, and the 16-year-olds were tried as adults. The court granted a motion to sever their trials.
In general, the likelihood is greater that a case will be overturned on appeal because the court failed to sever the trial.
On another subject, I appear live on YouTube on Friday evenings with Lauren Matthias of Hidden True Crime https://www.youtube.com/c/HiddenTrueCrime. We are on this evening at 7 pm. Grab a beverage of your choice and join us for a chat. We have been diving deep into the case during the quiet weeks. Be on the lookout for a deep dive into all things Zulema Pastenes soon.
Justice for Tylee and JJ wristbands are still available. Send your self-addressed stamped envelope to:
Lori Hellis
1042 N. Higley Rd., #102-446
Mesa, AZ 85205
More Time for Motions, COVID and a Doomsday Book
Hello, Friends.
Holy Kleenex, Batman! Let me say that even a mild case of COVID-19 is no joke! We’ve vaccinated and boosted in our house, and I’m sure that’s why my symptoms have been annoying but not debilitating, but, combined with taking care of my husband post-surgery, it’s been a lot. If you’ve sent me an envelope for a wristband, thanks for your patience, I promise I will get them out soon.
'Rona be damned, Lauren and I will be live tonight, wearing our Peppered by Leopard swag - click here to join us at 7pm PST https://youtu.be/OWybA2P1QQo or catch us later at your convenience.
There was a hearing today on the Daybell case. John Prior filed a motion to preserve objections available to defendants under the Idaho rule of criminal procedure 12. What the heck does this mean?
The relevant portions of the rule are outlined below.
(b) Pretrial Motions. Any defense objection or request which can be determined without trial of the general issue may be raised before the trial by motion. The following must be raised prior to trial:
(1) defenses and objections based on defects in the prior proceedings in the prosecution;
(2) defenses and objections based on defects in the complaint, indictment or information (other than that it fails to show jurisdiction of the court or to charge an offense, which objections may be made at any time during the pendency of the proceedings);
(3) motions to suppress evidence because it was illegally obtained;
(4) request for discovery under Rule 16;
(5) request for a severance of charges or defendants under Rule 14; or
(6) motion to dismiss based on former jeopardy.
(d) Motion Date. Motions under Rule 12(b) must be filed within 28 days after the entry of a plea of not guilty or seven days before trial whichever is earlier. In felony cases, motions under Rule 12(b) must be brought on for hearing within 14 days after filing or 48 hours before trial, whichever is earlier. The court may shorten or enlarge the time and, for good cause shown or for excusable neglect, may relieve a party of failure to comply with this rule.
In all cases, the defense is entitled to challenge the foundation of the case, the charging instrument. The charging instrument in a misdemeanor is called an “information.” As we’ve seen already in this case, felony charges may be made initially on an information and then presented either to a judge in a preliminary hearing or a grand jury.
If the matter is presented to a court in a preliminary hearing, as Chad’s first charges were, and the judge finds sufficient evidence to bind the defendant over for trial, the prosecutor files an indictment. On the other hand, if the prosecutor presents the facts to a grand jury, the jury panel issues either a “true bill” or a “no true bill.” If the grand jury issues a true bill, the prosecutor may file an indictment but is not required to. Either way, the standard isn’t high – the question is whether there was probable cause to believe the named defendant has committed a particular crime. Rule 12 gives the defense the chance to challenge that process.
The challenge comes when there is some defect in the charging document or the process by which probable cause was determined. It’s a foundational question, and therefore the rules say that the defense must file their challenge within a specific time or waive the objection entirely. However, the rule allows the court to give the defense more time if they can show good cause or some excusable neglect. Chad’s attorney, John Prior, first filed his motion for additional time back in June 2020, right after Chad was indicted. The motion has been pending since. Today, Judge Boyce heard argument as to why Prior should be granted that extra time so that any challenge filed now would be considered timely. Rob Wood objected.
John Prior explained that the process of determining whether there is even a basis for a motion under rule 12 is very time-intensive. First, there had to be a written transcript made of five days of testimony. That transcript was not completed and filed with the court until November 2021. Prior then said he had to review the entire transcript and compare it with the sworn testimony from Chad’s earlier preliminary hearing and any statements provided to him in the discovery materials. Prior commented that it was the longest jury transcript he’s ever gotten. Wood then countered by saying that Prior only recently asked for the grand jury voting sheet and that somehow proved Prior is dragging his feet. The voting sheet is just what it sounds like. It’s the record of how the grand jurors voted. The treatment of the voting sheet varies by state and jurisdiction. Sometimes they are included in the transcript, and sometimes they are not. The defense has the right to know how many grand jurors voted to indict.
I was not surprised that Judge Boyce allowed the motion and set a deadline for Prior to file any appropriate motions. It should be noted that the allowance does not change the January 2023 trial date. Judge Boyce set the trial out so far to allow for all the pretrial motions.
There was some interesting news that came out in the hearing, though. Prior pointed out that he had heard that the state had asked to reconvene the grand jury recently. Grand jury proceedings are secret, and Wood was not required to give notice of the new grand jury session. He did, however, confirm the grand jury had been reconvened and that Chad Daybell was not the subject of that grand jury session. So what did Wood present to the grand jury? Either new charges against Lori OR new charges against a new defendant. Remember, the prosecution is not required to file charges, even if the grand jury returns a true bill. Instead, the prosecutor sometimes uses the potential grand jury indictment as leverage to bargain.
Who would Rob Wood and Lindsey Blake want to bargain with, and why now? Well, prosecutors are always trying to leverage one codefendant against the other, and it’s become harder in this case with Lori ruled incompetent. All codefendant’s statements are suspect because they are self-serving, but using Lori’s could be even more challenging. Anything Lori says now could also be attacked as simply her delusions. Bringing in a third party could bolster the prosecutions’ case. It might also create a “squeeze play” by applying leverage from two directions. Who might it be? Anyone close to the case, but if I had to guess, my money would be on Zulema, Melanie Gibb, or Melani Pawlowski (the one the hosts at Pretty Lies and Alibis call “Melaniece”). It’s possible that any one of them could face charges in Idaho, but it’s more likely they would be charged in Arizona. All three have been very quiet lately.
It’s also possible the grand jury recommended further charges against Lori. The state isn’t required to wait until Lori is competent to file additional charges, but they could. So it’s just another instance of having to wait and see.
In my last appearance on Hidden True Crime’s YouTube Live, I said I thought Adam Cox was one of the “normal ones,” and I got some push back. In 2007, Adam Cox was a morning radio DJ in Sacramento, California. His show was called The Morning Rave. The station held a “Hold your Wee for a Wii” contest. The contestants were told to drink massive quantities of water. The one that could go the longest without going to the bathroom won a Wii game console. One of the contestants, Jennifer Strange, age 28, later died at the hospital of water intoxication. Cox, who went by the on-air name Lukas, and several other people were fired over the incident. Cox was unable to get a job in radio for years after. There was evidence that the radio personnel knew drinking too much water could be deadly. The Sacramento County District Attorney declined to prosecute anyone connected with the incident. Savage’s family won more than $16 million in a wrongful death suit against the radio station’s parent company. Cox and others filed suit against the company for wrongful termination and settled for an undisclosed amount. Cox now works as a radio host in St. George, Utah.
There is no question Cox and the other radio station personnel exercised some poor judgment. They were aware of a case two years earlier when a young man named Matthew Carrington died after being forced to drink water during a fraternity hazing ritual at a nearby university. Listeners called in, trying to caution them that the contest was dangerous. They said they were aware but that the contestants had all signed liability waivers. Adam Cox self-published a biography in early 2019 called My Crazy Radio Life. It is available on Amazon.
I think a person can make a terrible mistake in their life, learn from it and come out stronger. It appears that’s the case with Adam. I didn’t say Adam was a victim, but it seems that he viewed Lori’s spiral into delusions as alarming and frightening, as most normal people would. He tried to help Charles. Adam appears to be one of the few people who saw the possibility that Lori and Alex were dangerous. I am sure he lives with a great deal of regret and a great deal of gratitude that his son, Zac, who had lived with Charles and Lori, wasn’t hurt. Adam has lost three siblings, a brother-in-law, and a niece and nephew because of the dysfunction and psychopathology of his family. Only one of those people is still alive, and she is facing the death penalty.
Some of you have asked if I have read John Glatt’s book, The Doomsday Mother. I just finished reading it. The book covers Lori and Chad from their early years until they were charged with the first murder charges in Idaho. While the author claims to have completed “eighteen months of strenuous research,” there’s nothing new in the book. It presents an accurate timeline of events in a clear, journalistic style but doesn’t add anything that hasn’t already been released to the public. The book ends with a perfunctory epilogue.
My book will be only one of many written about this story. I am grateful that I have a publisher who wants a complete telling of the story and is willing to wait for it. I hope that waiting for the story to conclude will allow me to synthesize information and look for patterns to help us understand it rather than just report what happened. I appreciate all of you who are on this journey with me.
Is Lori Competent? January 17, 2022
January 17, 2022
Hello Friends:
Happy Martin Luther King Jr. Day, and Happy Birthday to both Betty White (who would have been 100 today) and our own Lauren Matthias of Hidden True Crime (who is nowhere near 100). Back before COVID, I liked to treat MLK Day as a day to do some kind of public service. Today, I combined the two and donated to a pet rescue organization in the name of Betty White, who loved animals. To quote MLK Jr., “If I cannot do great things, I can do small things in a great way.” So I hope you find some small way to make the world a better and more just place today.
Now on to some rampant semi-educated speculation about Lori Vallow Daybell. Remember, I could be wrong, but…
On January 13, 2022, interesting filings surfaced in Lori’s case. The first is titled “Motion to Seal.” The second is an Order “sealing IDHW Competency Report.” The Third is titled “Status Report Forensic Mental Health Evaluation.” I believe this indicates that Lori Vallow Daybell is now competent. So let’s look at the clues.
We start with the Idaho law on competency. That’s Idaho Statute 18-212. The statute only requires a progress report when the commitment is ending. The treatment provider is required to evaluate the defendant when they are admitted, to provide the court with a report at the end of the initial 90-day commitment, and, if the commitment is extended, at the end of the additional 180 days. The order to extend Lori Vallow Daybell’s commitment by 180 days was entered on September 23, 2021. Therefore, her 180 days will expire on March 22, 2022.
The statute also requires, “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.” So, according to the statute, reports are required at the end of the first 90 days, the end of the additional 180 days, or when the defendant becomes competent.
TaDa! Hence the surmise that Lori is now competent. Now, the statute doesn’t say the treatment provider can’t provide interim reports, but how many government institutions do you know that provide more than they are required? I can also report that I’ve received confirmation from an Idaho lawyer familiar with the system of restoring competency in criminal cases (and who is not Mark Means – I said familiar, remember?). This person tells me that in their experience, these reports only come at the end of the statutory commitment periods OR when the defendant had been restored before that period ended.
I think we can therefore make an educated guess that Lori Vallow Daybell has been restored to competency. And that raises many more questions.
If Lori’s continued competency relies on her taking medication, can she stop taking her meds? No. The judge ordered her to take medication, and I believe the treatment provider was permitted to force medication. Lori will be ordered to continue to take her medication until all her charges are adjudicated.
What happens next? There are a couple of hearings set in Chad’s case. First, there is a hearing set on January 27, 2022, and another on March 18, 2022.
Let’s look at the January 27, 2022 hearing first. That one is to hear argument on John Prior’s request for extra time to file certain motions under the ICR 12. These are motions on procedural grounds, and there is usually a time limit on filing them. Here is the relevant rule: (b) Pretrial Motions. Any defense objection or request which can be determined without trial of the general issue may be raised before the trial by motion. The following must be raised before trial:
(1) defenses and objections based on defects in the prior proceedings in the prosecution;
(2) defenses and objections based on defects in the complaint, indictment or information (other than that it fails to show jurisdiction of the court or to charge an offense, which objections may be made at any time during the pendency of the proceedings);
(3) motions to suppress evidence because it was illegally obtained;
(4) request for discovery under Rule 16;
(5) request for a severance of charges or defendants under Rule 14; or
(6) motion to dismiss based on former jeopardy.
(c) Motions to Suppress. A motion to suppress evidence must describe the evidence sought to be suppressed and the legal basis for its suppression sufficiently to give the opposing party reasonable notice of the issues.
(d) Motion Date. Motions under Rule 12(b) must be filed within 28 days after the entry of a plea of not guilty or seven days before trial whichever is earlier. In felony cases, motions under Rule 12(b) must be brought on for hearing within 14 days after filing or 48 hours before trial, whichever is earlier. The court may shorten or enlarge the time and, for good cause shown or for excusable neglect, may relieve a party of failure to comply with this rule.
(e) Ruling on Motion. A motion made before trial must be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. Where factual issues are involved in determining a motion, the court must state its essential findings on the record.
(f) Effect of Failure to Raise Defenses or Objections. Failure by the defendant to raise defenses or objections or to make requests that must be made prior to trial, or at the time set by the court pursuant to subsection (d), or prior to any extension of time granted by the court, constitutes waiver of the defenses, objections or requests, but the court, for cause shown, may grant relief from the waiver.
John Prior is doing his best to preserve his client’s right to challenge the complaint, indictment, or information as outlined in (2). In general, motions not filed within 28 days of the entry of the not guilty plea are waived. But Prior filed a motion to extend that time on June 21, 2021, and asked for the grand jury transcript on July 21, 2021. The judge ordered the transcript prepared on August 6. 2021. Prior has continued to ask for more time, based on the fact that he just received the transcript of the grand jury on November 5, 2021. I think this extension will be allowed, and we should see any relevant motions from Prior shortly after.
Now to the March 18 motions. There are two of them to be heard on that date. The first is Rob Wood’s motion for the court to reconsider bringing in a jury rather than changing the venue. I think this is a nonstarter. First, Judge Boyce was specific in the pretrial conference for the change of venue motion, that he wanted to be presented with cost comparisons for what Wood was suggesting. When Wood appeared at the hearing, he was unprepared and didn’t give the judge any information to persuade him it was a good alternative. Now he wants a second bite at that apple. The law favors finality, and the court has gone ahead with plans for holding the hearing in the new venue. I don’t see the judge changing his mind now.
The second motion is John Prior’s motion to sever the trial. The motion was filed on September 7, 2021. It appears the court was holding off on setting a hearing because of Lori’s incompetence. The fact that the hearing has been set is further indication that Lori is competent.
Motions for joinder are about efficiency. Motions to sever are about fairness and avoiding undue prejudice to a codefendant. There is no question that a joint trial would be more efficient for the court and the prosecution, but trying the two defendants together could prejudice one or the other. I think the judge will order the trials severed. If he does, I think he will leave Chad's January 9, 2023 trial on and set Lori’s trial immediately after. I also believe if Chad is tried and convicted first, Lori may try to cut a deal. The prosecution will have to weigh whether they think they can get a death penalty conviction based on what they’ve learned in Chad’s trial and penalty phases. And yes, it could result in an uneven and potentially unfair result where Chad receives the death penalty, and Lori makes a deal for life without the possibility of parole.
Can they have a joint trial with two juries? I have heard of this being done, but I think it’s rare. It’s hard to see how it would keep prejudicial information from being heard by one or the other jury. It would be a logistical nightmare that could easily lead to grounds for an appeal. Two separate trials will be cleaner.
Will Lori’s mental health issues be brought up in court? Lori’s period of incompetence isn’t relevant to whether she committed the crimes, so her current mental state won’t be brought up. Furthermore, since Idaho doesn’t allow insanity defenses, I doubt Lori’s mental state at the time of the crimes will be brought up either.
If the trials are severed, can they still turn on each other? Absolutely. Additionally, if the trials are severed, Chad could be required to testify in Lori’s trial if his case is fully adjudicated, since he would no longer have a Fifth Amendment right not to incriminate himself.
Finally, I still have plenty of wristbands, so keep those self-addressed envelopes coming! Mail them to:
1042 N. Higley Rd., #102-446
Mesa, AZ 85205
More Mark Means
More Mark Means
(How can we miss you if you won't go away?)
January 3, 2022
Hello Friends. Today’s Newsletter is just a quick note on Mark Means’ latest Tweet and the prosecution’s latest filing.
It doesn’t appear Mark Means intends to go gentle into that good night.
Today Means tweeted a portion of a quote by founding father, John Adams. The full quote reads:
“I had no hesitation in answering that Council ought to be the very last thing thata Council an accused Person should want in a free Country. That the Bar ought in my opinion to be independent and impartial at all Times And in every Circumstance. And that Persons whose Lives were at Stake ought to have the Council they preferred”
Means conveniently omitted the portion of the quote highlighted in yellow. Adams appears to say that a defendant should never want for an independent and impartial attorney. Years later, the Supreme Court agreed in Gideon v. Wainwright, 372 U.S. 335 (1963). Mark Means was neither. He also was not qualified or experienced enough to protect his client’s rights. Unfortunately, Means could not honestly examine his abilities and intentions and conclude that he needed help. Now, it appears Means is intent on destroying what is left of his professional reputation
Today, Prosecutors filed a “Motion to Clarify or in the Alternative to Extend the Court’s Protective Order of Pursuant to Idaho Rules of Criminal Procedure Rule 16 and Idaho Rule of Professional Conduct 1.9. Here is what we can gather from this filing:
It appears that the court issued a protective order under seal earlier, in this case, prohibiting Lori Vallow Daybell and her attorney, Mark Means, from disseminating discovery or publicly commenting on the evidence. Unfortunately, the current motion does not indicate when the earlier order was filed. Still, if I had to guess, I would say it probably happened this summer, around the time the information came out about Means leaking protected information to a YouTube creator.
The prosecutor requests that the court clarify so that everyone understands that the order extends to Means even though he has been disqualified from the case. I have never seen a court issue such an order. Courts often issue blanket gag orders in high-profile cases, prohibiting any parties or their attorneys from speaking about the case in public. It appears that the judge’s order was much more specific and only limited Means and Vallow, not the prosecution.
I’ve also seen the rumor that Mark Means moved to Missouri in September 2021. It appears that he purchased a home in Missouri, but I have been unable to confirm that he sold a home in Idaho or that he has applied for membership in the Missouri state bar.
And yes, it was in Missouri that Chad and Lori claimed much of the end times would occur.
I don’t know what this means (no pun intended).
I hope all things will become clearer with time.
Talking to the incompetent client and Happy New Year!
Hello Friends! What an odd feeling it is, typing 2022 for the first time!
I’ve gotten several questions on this subject, and I suspect it’s a question many others may have, so I want to respond in newsletter form.
Many of you asked about Jim Archibald’s statement in court last week that he wanted the opportunity to consult with his client. You questioned how he could consult meaningfully with someone who is incompetent.
Rather than a light that is either on or off, I think of competence as a light on a dimmer switch. The spectrum of competence can be like the light, shading brighter or darker with time. The patient’s treatment plan aims to shift that lever ever so slightly in the brighter direction every day. While medication is usually necessary, it’s coupled with daily reality checks that reinforce and encourage the patient to remain grounded in what is real rather than their delusions. Contrary to most Hollywood portrayals, patients are rarely delusional all the time, and treatment is often about reinforcing and extending the lucid periods. Further, competence is as much a legal construct as a medical one in this instance.
A lawyer’s obligation to a client with diminished capacity is spelled out in the Rules of Professional Conduct. In Idaho, that is Rule 1.14. The applicable rule and the commentary is as follows:
RULE 1.14: CLIENT WITH DIMINISHED CAPACITY (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests. Commentary [1] The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions. [2] The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of the client, particularly in maintaining communication.
In cases where the client is permanently incompetent, the court may appoint someone to make legal decisions for the client. That person is called a Guardian ad Litem. In some states, GALs are also appointed for children in contested divorce and child welfare cases, and you may have heard about the GAL appointed for Tylee in Lori’s divorce from Joe Ryan.
To illustrate, I once represented a child in a child welfare case. My client’s mother was severely mentally disabled, and both her children were conceived as the result of caregivers who took advantage of the mother’s diminished capacity. The children themselves had special needs. The mother could not direct her attorney, so the court-appointed her a Guardian ad Litem. The GAL’s job was to, wherever possible, ascertain the mother’s wishes and advocate for her in her place. Where the intention is to restore a party to competence, it’s unusual for the court to appoint a GAL.
As you can see from the rule of professional conduct I’ve cited above, Jim Archibald must maintain as normal an attorney/client relationship as possible with Lori Vallow and explain the details of her case to her as thoroughly as possible. I have often made this trip to a treatment facility to talk with a client. When possible, I would usually repeat the information in a letter so that the client could review the information more than once and process it as needed with a treatment provider. That correspondence is protected from later disclosure by the attorney-client and the medical professional-patient privileges.
You can see from these rules, Lori is entitled to be informed about her case and consulted about her wishes at every juncture. That doesn’t mean she is competent. It only means that she is permitted to be involved as much as she is able. I hope this explanation helps.
Some of you also asked about perjury charges and disbarment in Mark Means’ future. Both are certainly possibilities. I believe Means is already under investigation with the Idaho Bar. Unfortunately, the Idaho Bar won’t confirm or deny an open disciplinary case. They only release information if and when the attorney is sanctioned.
Now, on a different note, this brand spanking new year is upon us. As always, New Year’s Day brings the opportunity to reflect on the past year and set intentions for the new one. 2021 was a year of tremendous change for me. I entered 2020, set on using the COVID-19 lockdown as a time to nurture my fledgling writing career. That intention snowballed into not one but two books. In 2021, I finished The No Nonsense Guide to Divorce. The book is a straightforward and often humorous look at divorce, directed toward the Millennial generation. It is scheduled for release on March 15, 2022, and is available for preorder on Amazon. I also contracted with Pegasus Books to write Children of Darkness and Light, The Lori Vallow Story. I’m grateful that Pegasus and I share the same vision for the book. Fortunately, they are more concerned with completeness and quality than speed and are willing to wait until after the trial in January of next year.
Still, 2022 won’t be an uneventful year for me. In the first half of the year, my family and I will be selling our home in Mesa, AZ, and moving to Boise, Idaho. As we settle in, I will be traveling from home in Boise to Rexburg to understand the environment and the community and begin interviews. My retired fighter pilot husband will, I hope, be recovering and regaining strength and mobility after his second major back surgery yesterday; My 88-year-old mother will be settling into an assisted living residence and making new friends. I share these things with you because you have welcomed me into your community and become my friends.
Too many of you have experienced incredible loss and sadness in the past two years. I know that people in this community have experienced both the loss of loved ones and the loss of their livelihoods; I know you’ve experienced health challenges and loneliness. Yet, through it all, you’ve shown up for each other and for Colby and Kelsee Ryan and the entire Vallow family.
Thanks to you all for your support, and here’s to a 2022 full of love and peace and promise for us all. Cheers.
Look for The No Nonsense Guide to Divorce on Amazon, at Barnes, and Noble, or at your independent bookseller. Pre-order on Amazon today.