December 23, 2025 • 27 mins
In this episode, we continue breaking down the State of Idaho’s response to Lori Vallow Daybell’s appeal, picking up deep into the brief as the State dismantles claims of constitutional violations.
The State argues that Lori Vallow failed all three prongs of the fundamental error test — including claims that her Sixth Amendment right to counsel was violated and that her due process rights were ignored while she was deemed incompetent.
We walk through why the court says Mark Means had the opportunity to respond but chose not to, why this was not a structural error, and why any alleged error would be considered harmless under existing case law.
The episode also dives into the key issue of competency, explaining why hearings held in Chad Daybell’s separate criminal case did not violate Lori Vallow’s rights — including her right not to be prosecuted while incompetent or her right to be physically present.
This section of the appeal gives rare insight into what was happening behind the scenes while much of the case was under seal — and why the State is confident none of these arguments will impact her Idaho conviction.
Recap of the series and picking back up in the State’s response to Lori Vallow’s appeal
00:55 – Mark Means & Alleged Right-to-Counsel Violation
State argues Means had the opportunity to respond but chose not to
02:17 – Fundamental Error Test: “Error Plainly Exists”
Explanation of the second prong of the Perry test and why the State says Vallow fails it
04:18 – Misuse of Bodenbach Comparison
Why the Idaho Supreme Court’s Bodenbach ruling does not apply here
06:34 – Harmless Error vs Structural Error
State argues this was not a complete deprivation of counsel
08:52 – Hearings Focused on Chad Daybell, Not Lori Vallow
Why Means’ limited role did not violate Vallow’s Sixth Amendment rights
10:01 – No Showing of Prejudice
State explains why Vallow’s arguments are speculative and unsupported
11:19 – New Argument: Due Process & Competency
Whether Vallow’s rights were violated while she was deemed incompetent
13:04 – Right Not to Be Prosecuted While Incompetent
Idaho law on suspension of proceedings and why it didn’t apply here
16:37 – Separate Criminal Case Explained
Why hearings in Chad Daybell’s case did not violate Vallow’s rights
18:55 – Balancing Competing Constitutional Rights
Court’s duty to protect conflict-free counsel and fairness of proceedings
21:10 – Mark Means’ Actions During Incompetency
Why the court acted quickly to disqualify Means
22:33 – Court Left Door Open After Restoration to Competency
Opportunity Vallow had to revisit issues later
24:01 – Right to Be Present at Hearings
Why due process does not require presence in another defendant’s case
26:24 – Why Vallow’s Presence Would Not Have Changed Anything
Competency, waiver issues, and harmless error analysis
29:39 – Failure to Show Error Plainly Exists (Again)
State argues tactical decisions undermine Vallow’s claims
33:03 – Harmless Error Analysis Applies
Why prejudice cannot be presumed
36:14 – Wrapping Up & What’s Next
Preview of the next episode and appeal timeline going forward
Become a supporter of this podcast: https://www.spreaker.com/podcast/pretty-lies-and-alibis--4447192/support.
The State argues that Lori Vallow failed all three prongs of the fundamental error test — including claims that her Sixth Amendment right to counsel was violated and that her due process rights were ignored while she was deemed incompetent.
We walk through why the court says Mark Means had the opportunity to respond but chose not to, why this was not a structural error, and why any alleged error would be considered harmless under existing case law.
The episode also dives into the key issue of competency, explaining why hearings held in Chad Daybell’s separate criminal case did not violate Lori Vallow’s rights — including her right not to be prosecuted while incompetent or her right to be physically present.
This section of the appeal gives rare insight into what was happening behind the scenes while much of the case was under seal — and why the State is confident none of these arguments will impact her Idaho conviction.
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Recap of the series and picking back up in the State’s response to Lori Vallow’s appeal
00:55 – Mark Means & Alleged Right-to-Counsel Violation
State argues Means had the opportunity to respond but chose not to
02:17 – Fundamental Error Test: “Error Plainly Exists”
Explanation of the second prong of the Perry test and why the State says Vallow fails it
04:18 – Misuse of Bodenbach Comparison
Why the Idaho Supreme Court’s Bodenbach ruling does not apply here
06:34 – Harmless Error vs Structural Error
State argues this was not a complete deprivation of counsel
08:52 – Hearings Focused on Chad Daybell, Not Lori Vallow
Why Means’ limited role did not violate Vallow’s Sixth Amendment rights
10:01 – No Showing of Prejudice
State explains why Vallow’s arguments are speculative and unsupported
11:19 – New Argument: Due Process & Competency
Whether Vallow’s rights were violated while she was deemed incompetent
13:04 – Right Not to Be Prosecuted While Incompetent
Idaho law on suspension of proceedings and why it didn’t apply here
16:37 – Separate Criminal Case Explained
Why hearings in Chad Daybell’s case did not violate Vallow’s rights
18:55 – Balancing Competing Constitutional Rights
Court’s duty to protect conflict-free counsel and fairness of proceedings
21:10 – Mark Means’ Actions During Incompetency
Why the court acted quickly to disqualify Means
22:33 – Court Left Door Open After Restoration to Competency
Opportunity Vallow had to revisit issues later
24:01 – Right to Be Present at Hearings
Why due process does not require presence in another defendant’s case
26:24 – Why Vallow’s Presence Would Not Have Changed Anything
Competency, waiver issues, and harmless error analysis
29:39 – Failure to Show Error Plainly Exists (Again)
State argues tactical decisions undermine Vallow’s claims
33:03 – Harmless Error Analysis Applies
Why prejudice cannot be presumed
36:14 – Wrapping Up & What’s Next
Preview of the next episode and appeal timeline going forward
Become a supporter of this podcast: https://www.spreaker.com/podcast/pretty-lies-and-alibis--4447192/support.
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- Donate: (Thank you for your support! Couldn't do what I love without all y'all)
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
What's in the alibiers. Welcome to another episode of Pretty
Lies and Alibis.
Speaker 2 (00:04):
I'm Gigi. It's Tuesday, December twenty third.
Speaker 1 (00:07):
I was planning to get an episode in yesterday, but
I underestimated the amount of traffic and people that would
be out Christmas shopping and got caught up in that hooplah.
But we are going to keep going today on this
state's response to Lorie day Bell's filing for her appeal.
When we left off, the state was saying that Mark
Means had the opportunity to file a response to the
(00:29):
state's motion, he just chose not to do so. Valo
has failed to prove her constitutional right to counsel was violated.
Speaker 2 (00:36):
I remember when this happened.
Speaker 1 (00:38):
This was a pretty big deal and Mark Means went
on Twitter meaned about being kicked off the case, and
I remember thinking, this is going to take forever for
her to go to trial. With a new defense council
coming in, they have to catch up.
Speaker 2 (00:50):
Seems like forever ago, all right.
Speaker 1 (00:52):
So the next section, Valo has failed to show any
error lainly exists in the record. The second prong of
the fundamental error test requires Valo to show the alleged
error plainly exists. They said a case called Pieri. Demonstrating
an error plainly exists requires a showing that the error
is clear as a factual matter, without the need for
(01:13):
any additional information not contained in the appellate record, including
information as to whether the failure was to object was
a tactical decision. Valo has not shown the error plainly exists.
Her alleged constitutional claim is that the district court violated
her right to counsel by excluding Means from arguing the
(01:34):
state's motion to disqualify in a separate criminal proceeding. But
as explained above, Means had the opportunity to follow a
response to the state's argument in his clients criminal proceeding,
but failed to do so for reasons that are anything
but plain in the record. Determining Means as motivation and
intent is factual in nature and thus more appropriately addressed
(01:57):
via a petition for post conviction relief, and they cite
State versus Miller. Presumably Valor will respond that Means did
not file a response to the state's motion because the
court had stayed the case pending Balot's restoration to competency.
But that is the kind of inferential leap that cannot
satisfy the second prong of fundamental error, especially giving the
(02:19):
numerous documents Means filed in the Valo case during the
same timeframe. Balot sites means motion to interveneos proof that
Means did not make a practical decision when he failed
to raise the sixth Amendment claim and they're citing State
versus Bodenbach. Her reliance on Bodenbach is misplaced. In Bodenbach,
the Idaho Supreme Court found the second prong of fundamental
(02:42):
error satisfied because the defense attorney had objected to the
challenged jury instruction on a different basis. The court concluded
the failure to raise a constitutional objection could not have
been tactical because defense tried to stop the instruction from
being given at all. The courts implied logic, of course,
was that defense council would not tactically refrain from making
(03:04):
a constitutional argument that would have had the same result
as defense council's non constitutional objection. The Bodenbach logic does
not apply here. The District Court expressly stated that it
did not interpret Means motion to intervene as a request
to be heard in their citing State versus da Bell. Yet,
(03:25):
Valo's appellate claim is that the district court violated her
sixth Amendment right to council by refusing to hear from means.
Thus means motion to intervene does not serve the same
purpose as defense council's objection in Bodenbach, and Valo is
still left without evidence in the records showing any error
plainly exists. Next section, Valo has failed to show any
(03:48):
error was not harmless. Valot has failed to satisfy the
third prong of the Pery fundamental error test. The third
prong of the Pery fundamental error test requires Valo to
show the election error was not harmless. Ballot claims she
need not offer any proof in the record on this
prong because the complete deprivation of council is structural error
(04:10):
and prejudice is presumed. She is correct that the complete
deprivation of council is structural error, but the partial deprivation
of council is not, and it says see satur White
versus Texas, explaining the deprivation of council is structural error
only where it affected and contaminated the entire criminal proceeding,
(04:31):
and it says see Russian versus Spain, explaining council's absence
from x parte communication between judge and juror was subject
to harmless error review. They cite US versus Morrison, holding
counsel's absence during return of verdict subject to harmless error
review and Vines versus the US, holding council's absence during
(04:53):
trials subject to harmless error review because no evidence directly
inculpating defendant was presented wild defense counsel was absent. The
error of Valo alleges is subject to harmless error review
because she was not completely deprived of counsel during the hearings.
The record shows that Valo was represented by two attorneys
(05:14):
during the period she now claims total deprivation of counsel.
Means was present during both hearings, and Archibald was present
during the first and much of the second. In a footnote,
it says Valo asserts deprivation of council because Means could
not participate in the hearing where the District Court inquired
of daybel alone with his counsel, but that was intentionally
(05:37):
an ex parte hearing to protect Dabell's fit Amendment rights.
Even if the district court had granted Means his motion
to intervene, he would not have been allowed to participate
in that hearing. Most importantly, as Valo concedes, the hearings
were focused on Chad's rights to conflict free counsel rather
than Lori's rights council of her choice. Means inability to
(06:01):
participate in a hearing focused on a different criminal defendants
constitutional rights, even as a co conspirator, does not constitute
the complete deprivation of counsel required for structural error, especially
where he had the opportunity to fillo a response in
his client's case. In an effort to show prejudice, Baalot
throws out several possibilities of how the hearing might have
(06:24):
been different if Means participated. None of them satisfy the
third prong of fundamental error because none of them are
based on evidence in the record. For example, Ballot claims
the proceeding would have been different because Means would have
shared his version of events, but she fails to point
to any specific facts in the record that Means would
(06:44):
have shared at the hearing, much less explain how those
facts would have affected the proceedings. Also, Valo claims Means
could have impressed upon the court the importance of Miss
Dabell's right to counsel of choice, which seemed to get
overlooked in the process, but Valo's right to counsel of
choice did not get overlooked at the hearings. The parties
(07:05):
and the District Court intentionally focused on da Bell's rights
at the hearing because they were hearings in Da Bell's case.
And they quote State versus Dabll, this isn't about Lori
Chad da Bell has independent rights to not have a
former attorney in an adversarial position against him end quote.
The District Court's written decision disqualifying Means analyzed right to
(07:28):
counsel of choice at length, and Valo has failed to
explain what else Means would have said about the right
that would have affected the proceedings. Valot has thus failed
to show any error was not harmless. The next section,
Valo has failed to show the District Court committed fundamental
error by violating her due process right not to be
prosecuted or to be physically present at proceedings introduction. Valot
(07:54):
has failed to show fundamental error in the District Court's
decision to hold hearings in Dabell's separate criminal care case
while Valo was incompetent. Neither Valo's right not to be
prosecuted nor her right to be physically present applied to
proceedings in a separate criminal case. Moreover, the unique receidural
circumstances of this case placed the District Court in between
(08:17):
multiple constitutional rights belonging to Valo, who was at the
time incompetent. The District Court's decisions reflect that it protected,
not violated, Valot's constitutional rights.
Speaker 2 (08:29):
That is not fundamental error. The next section is standard
of review.
Speaker 1 (08:33):
Alleged constitutional errors during trial that are not followed by
a contemporaneous objection must be reviewed under the fundamental error doctrine,
and it says see State versus Medina. Next section, the
District Court did not commit fundamental error by holding a
hearing in a separate criminal proceeding without the then incompetent Valo.
(08:56):
The District Court's decision to hold a hearing in Dabel's
separate criminal case without Valo present and while she was incompetent,
did not constitute fundamental error. To prove fundamental error. Valo
must show that the alleged error one violated an unwaived
constitutional right, two lamely exists, and three was not harmless.
(09:20):
She cannot satisfy her burden on any prong Number one.
The district Court's decision to hold a hearing in a
different criminal proceeding while Valo was incompetent did not violate
her constitutional rights. Valo asserts the district court violated two
of her unwaived constitutional rights when it held hearings in
the debll case while she was deemed incompetent. She is
(09:42):
wrong on both counts. Valo first contends that the district
court violated her right not to be prosecuted while incompetent.
The due process right to a fair trial encompasses a
right not to be tried or convicted while incompetent to
stand trial. They site drop verse as Missouri. The same
standard applies to those who plead guilty, then, it says
(10:04):
see Go Dinez versus Moran. A state's statutory procedure for
determining an accused mental capacity to stand trial is constitutionally
adequate to protect the defendants do write process right not
to be tried while legally incompetent, and they cite State
versus Lovelace. In Idaho, this right is protected by Idaho
(10:26):
Code eighteen Dash two ten through eighteen Dash two twelve.
Pursuant to these statutes, no person who has a result
of mental disease or defect lacks capacity to understand the
proceedings against him or to assist in his own defense,
shall be tried, convicted, sentenced, or punished, or the commission
of an offense so long as such incapacity endures. If
(10:50):
the court determines the defendant lacks fitness to proceed, proceeding
against him shall be suspended, except for further proceedings related
to the defendant's competency, or if the defendant escapes from custody.
The case law in Idaho explaining this suspension is sparse,
but suggests the obligation to suspend proceedings would apply at
(11:11):
least as early as a preliminary hearing. See Lovelace rejecting
claim that magistrate failed to suspend proceedings at preliminary hearing
because requirements for suspension not meant the district court properly
suspended the proceedings in Valo's case on May twenty seventh,
twenty twenty one, prior to finding Valo was in fact
(11:33):
incompetent to proceed to trial, the District Court entered in
order staying Valo's case because of the issue of defendant's competency. Then,
on June ninth, twenty twenty one, the District Court entered
in order finding Valo was not competent to proceed and
suspended the case. Except as provided in Idaho Code. The
(11:54):
suspension was not lifted until the District Court found Valo's
competency was restored on April eleventh, twenty twenty two. Valo
contends the District Court violated the suspension of proceedings by
holding several hearings while Valo was incompetent, but the hearings
she sites were all held in a separate criminal case
(12:14):
against Dabell. The District Court went out of its way
to clarify that the proceedings Valo now sites were not
happening in the Valo case because of the stay, and
they cite from State versus Dabell. But right now, Case
sixteen twenty four is stayed and we're only having a
hearing on Case sixteen twenty three as a result, and
again a quote, as I think everyone's aware, Valo's case
(12:37):
is currently stayed pending a determination that Valo be found
competent to proceed.
Speaker 2 (12:43):
End quote.
Speaker 1 (12:43):
Valot's constitutional right to not be trialed while incompetent did
not require the district court to suspend a separate criminal case.
If the court determines that the defendant lacks fitness to proceed,
the proceedings against him shall be suspended. Furthermore, the district
court's entry of an order disqualifying means in Valot's case
(13:04):
while Valo was incompetent, did not violate this right. In
a footnote, it says the state reads Valo's opening brief
to argue only that the hearings violated valos do process right,
and she has thus waived the argument that the entry
of the order did so as well. They cite Gallagher
versus State, holding that when an appellent fails to support
(13:25):
an issue in the opening brief with law authority or argument,
that issue has been waived and cannot be revived in
the reply brief. However, the state covers the issue out
of an abundance of caution. The same argument would apply
to the hearings if this court were to determine that
the hearings were somehow part of Valo's case. Neither the
(13:47):
US Supreme Court nor Idaho's appellate courts have clearly defined
the suspension of proceedings that due process requires upon a
finding of incompetency. But we know, for example, that not
all proceedings are halted because certain proceedings necessarily must move forward.
They cite Idaho law suspending proceedings except for further competency
(14:08):
proceedings and when the defendant escapes costody. We know that
constitutional rights are less rigid than Valos suggest, at least
when placed in competition with other constitutional rights. They cite
Indiana versus. Edwards, holding constitutional right to represent oneself must
yield to the constitutional right not to be tried while
(14:30):
incompetent when a state insists that a borderline competent individual
must be represented at trial, or the fundamental fairness of
the proceedings, and they cite Wheat versus The US holding
trial court can reject defendants waiver of a conflict council
in part because courts have an independent interest in ensuring
(14:50):
that criminal trials are conducted within the ethical standards of
the profession and that legal proceedings appear fair to all
who observe them. District Court's actions in this case respected,
rather than violated, Balot's constitutional rights. The court found itself
in an unbelievable position when Valot's right to the effective
(15:11):
assistance of counsel otherwise conflict recounsel and her right not
to be trial while incompetent Means not only had a
conflict or the serious potential for a conflict, but he
continued to take actions on Valo's behalf despite the District
Court's orders suspending the proceedings. Means actions were both serious
(15:33):
viiling motions to dismiss the indictment and to change venue
in Valo's capital case, and seriously concerning, such as making
himself a witness to the proceeding and apparently violating attorney
client confidences of an incompetent client, and means actions necessarily
could not have been knowingly authorized by Valo given her incompetence.
(15:55):
If the District Court waited to disqualify means, it would
do so at the cost lost a Valo's right to
conflict free representation in a capital proceeding. Not to mention
its own independent interest in ensuring that legal proceedings appear
fair to all who observe them, recognizing that it had
a duty to protect her rights while Valo remained incompetent,
(16:16):
the District Court correctly acted and disqualified means. Notably, the
District Court's decision left the door open for Valo to
raise any concerns with the process after she was restored
to competency, and they quote if and when Valo is
restored to competency, the court could conduct an inquiry into
her interest in waiving qualified counsel. However, until such time,
(16:41):
this Court's duty to protect her rights remains Neither she
nor her counsel did so. The District Court's actions in
this case protected Valo's right to conflict free counsel, while
also preserving her right not to be prosecuted while incompetent.
Valot next argues the District Court violated her rights to
be present by conducting the hearings in the day Bell
(17:03):
case while she was incompetent. Separate from the Sixth Amendment
right to confront witnesses, a criminal defendant has a due
process right to be present in his own person whenever
his presence has a relation reasonably substantial to the fullness
of his opportunity to defend against the charge. They cite
State versus Dunlap and quoting Kentucky versus Stencer. But the
(17:27):
defendant does not have a right to appear when presence
would be useless or the benefit but a shadow. A
defendant claiming his absence from a hearing constituted a due
process violation has the burden of showing that he would
have gained anything by attending. They cite Us versus Gagnon,
holding defendant failed to show constitutional violation because he has
(17:49):
not shown how his presence could have affected the outcome
of either hearing. See also Clark versus Chappelle. In Clark,
the defendant claimed his due process right to be present
have been violated when the district court held a meeting
to discuss the defendant's counsel's potential conflict outside of the
defendant's presence. He claimed, if he were present at the
(18:11):
meetings about his council's conflict, he would have insisted on
a full hearing and removal of counsel. The Ninth Circuit
rejected his argument, quoting the discussions at this meeting were
later described by a defense council in open court for
the trial judge in the defendant's presence, and the defendant
made no objections or requests for a further hearing. Thus,
(18:33):
the court found the defendant's constitutional claim failed because he
had not shown that he would have gained anything by attending.
Vaalot's claim fails for more reasons than the defendants claims
in Clark. First, as explained above, the hearing's Valo now
claims she wanted to attend were held in a separate
criminal case. Neither the US Supreme Court nor Idaho's appellate
(18:56):
courts have held that a defendant has a due process
right to be fit physically present in hearings held in
someone else's criminal case. Second, Balot was incompetent at the
time of the hearings. By definition, Valot's presence would be
useless or the benefit but a shadow. And that's quoting Stenser,
because it's uncontested that she lacked the capacity to understand
(19:19):
the proceedings against her or to assist in her own defense.
So just to remind her, when you are deemed incompetent,
one of the biggest things is you cannot assist in
your defense, So her argument really falls very short. And
I also see the big issue with means filing things
even though she was incompetent, because everything should have halted.
(19:39):
So that's really the gist of all this. Third, even
setting aside the issue of competency, Balot's presence would have
been useless because the district court properly found the conflict
created by means dual representation could not be waived, and
they cite People versus Jean Baptiste finding defendant's presence was
not required at hearing on his count council's disqualification since
(20:02):
defense counsel could not have continued to represent the defendant
under the circumstances of this case. Therefore, Valo's presence was
not constitutionally required or like the defendant in Clark, Valo
has not shown that she would have gained anything by attending.
She did not even try, and their quoting Gagnon arguing
(20:23):
under the first prong of Perry only that she could
not have waived her right to be present. Whatever Valo
comes up with inner reply brief is insufficient because, like
the defendant in Clark, she did not present that request
argument or fact to the District Court rejecting same constitutional
claim where defendant was made aware of proceedings in his absence,
(20:44):
rejecting same constitutional claim where defendant was made aware of
proceedings in his absence and had made no objections or
requests when he became aware of the proceedings. Valo failed
to present any such argument or additional facts, even though
the District Court at least implicitly invited Valo to raise
the issue again upon her restoration to competency, and they
(21:07):
quote if and when Valo is restored to competency, the
court could conduct an inquiry into her interest in waiving
qualified counsel. Valo has thus failed to prove she had
a due process right to be present at the hearings
held in the day Bell case. The next section, Valo
has failed to show any error plainly exists in the record.
(21:28):
The second prong of the fundamental error test requires Valo
to show the alleged errors plainly exist, and they cite Perry.
Demonstrating an error plainly exists requires a showing that the
error is clear as a factual matter, without the need
for any additional information not contained in the appellate record,
including information as to whether the failure to object was
(21:51):
a tactical decision. Valo cannot do so on either of
these constitutional claims. Valo has failed to show that any
error plainly exc this with respect to her right not
to be prosecuted while incompetent Means motion to interveniently strongly
implied that he was trying to intervene for the purpose
of arguing the conflict on the merits, and they quote
(22:13):
intervention requests is timely and appropriate for this matter to
present to the court facts and events necessary to determine
sub motion. Then at the hearings, he seemed to suggest
he wanted to object to moving forward in the hearings
at all because of the stay, but as explained above,
Means still continue to file and take actions in Valo's case. Thus,
(22:36):
Means could have made a tactical decision not to raise
the constitutional objection because he wanted to be able to
keep filing motions and taking actions in his client's case.
Valo has also failed to show that any error plainly
exists with respect to her right to be physically present
at the proceedings. All she cites and are brief to
(22:56):
meet her burden on this claim is that one she
was physically absent from the hearing, and two that Means
stated in his oral argument on the motion intervene that
he was objecting to the hearing proceeding. Neither of those
facts imply, much less prove that Means did not make
a tactical decision on the issue of Valo's physical presence
(23:19):
at the hearing. Means did not say anything about Valo
being present at the hearing, and he did not make
any effort prior to the hearing to arrange for her presence.
If anything, the more reasonable inference from the current record
is that Means made the tactical decision to forego Valot's
physical presence because she was deemed incompetent. They cite State
(23:41):
versus Alvarado. The evidence Valo sites in the record does
not show the alleged error plainly exists. The next section,
Valo has failed to show any error was not harmless.
Valo has failed to satisfy the third prong of the
Pery fundamental error test. The third prong requires to show
the alleged errors were not harmless. Balot attempts to short
(24:04):
circuit this prong by asking this court to assume prejudice.
Unfortunately for Valo, that is not the law. Structural errors
where the error is assumed to be prejudicial, are the
exception and not the rule. They cite Rose versus Clark.
The Supreme Court has never held that the exclusion of
a defendant from a critical stage of his criminal proceedings
(24:27):
constitutes a structural error, and then Campbell versus Rice. On
the contrary, the Court has explained the right to be
present during all critical stages of the proceedings, as with
most constitutional rights, is subject to harmless error analysis unless
the deprivation, by its very nature cannot be harmless. They
(24:47):
cite Russian versus Spain. Subsequently, courts have found that violations
of these rights are generally subject to harmless error analysis.
They cite Born versus Curtain. This includes d'ess out of
hearing where the court discussed a potential conflict with defendant's counsel.
They cite Rice versus Wood, holding error subject to harmless
(25:09):
error review where defendant was absent when jury sentenced him
to death. Harmless error analysis makes sense when the defendant
has been erroneously excluded from a hearing, because the error
can be assessed in order to determine whether or not
it was harmless. The hearings in this case are no different.
One could readily determine whether Valo's absence from the hearings
(25:30):
had any effect on those hearings by determining what information
Valoe could have provided to the court or what action
she could have taken during the hearings, and then decide
whether that information or action would have actually affected the
outcome of the proceedings. This might require the development of
new facts after the hearings, but that does not make
(25:53):
the error structural. Why the opposite, and it says see
Russian Defendant's absence from conversation between judge and juror is
subject to harmless error analysis because effective supposed error can
normally be determined by a post trial hearing. The effect
Valo's absence had is therefore only unknowable on this record,
(26:16):
meaning Valo cannot satisfy the third prong of fundamental error
and the matter would be better handled in post conviction proceedings.
So we're going to end it there, because then we
get into a whole new argument. I'm hoping to have
that out today and finish this up. You know, for me,
this is interesting because there was a lot of stuff
that was under sal during her incompetency. We just didn't
(26:38):
know anything about what was going on behind the scenes.
I love reading appellate briefs and the responses to those.
A lot of times you throw a lot of stuff
against the wall and hope something sticks, but not at
all worried that anything in here is going to affect
her conviction in Idaho. And we'll have appeals out of
Arizona as well. So these appeals will go on for
(27:00):
quite a while. And with Chad's, because it's a death
penalty case, it's going to take a lot longer.
Speaker 2 (27:05):
But we haven't heard the last of these two yet.
So that is it for now.
Speaker 1 (27:10):
I hope you guys have a good rest of your
afternoon and we will see you soon.
What's in the alibiers. Welcome to another episode of Pretty
Lies and Alibis.
Speaker 2 (00:04):
I'm Gigi. It's Tuesday, December twenty third.
Speaker 1 (00:07):
I was planning to get an episode in yesterday, but
I underestimated the amount of traffic and people that would
be out Christmas shopping and got caught up in that hooplah.
But we are going to keep going today on this
state's response to Lorie day Bell's filing for her appeal.
When we left off, the state was saying that Mark
Means had the opportunity to file a response to the
(00:29):
state's motion, he just chose not to do so. Valo
has failed to prove her constitutional right to counsel was violated.
Speaker 2 (00:36):
I remember when this happened.
Speaker 1 (00:38):
This was a pretty big deal and Mark Means went
on Twitter meaned about being kicked off the case, and
I remember thinking, this is going to take forever for
her to go to trial. With a new defense council
coming in, they have to catch up.
Speaker 2 (00:50):
Seems like forever ago, all right.
Speaker 1 (00:52):
So the next section, Valo has failed to show any
error lainly exists in the record. The second prong of
the fundamental error test requires Valo to show the alleged
error plainly exists. They said a case called Pieri. Demonstrating
an error plainly exists requires a showing that the error
is clear as a factual matter, without the need for
(01:13):
any additional information not contained in the appellate record, including
information as to whether the failure was to object was
a tactical decision. Valo has not shown the error plainly exists.
Her alleged constitutional claim is that the district court violated
her right to counsel by excluding Means from arguing the
(01:34):
state's motion to disqualify in a separate criminal proceeding. But
as explained above, Means had the opportunity to follow a
response to the state's argument in his clients criminal proceeding,
but failed to do so for reasons that are anything
but plain in the record. Determining Means as motivation and
intent is factual in nature and thus more appropriately addressed
(01:57):
via a petition for post conviction relief, and they cite
State versus Miller. Presumably Valor will respond that Means did
not file a response to the state's motion because the
court had stayed the case pending Balot's restoration to competency.
But that is the kind of inferential leap that cannot
satisfy the second prong of fundamental error, especially giving the
(02:19):
numerous documents Means filed in the Valo case during the
same timeframe. Balot sites means motion to interveneos proof that
Means did not make a practical decision when he failed
to raise the sixth Amendment claim and they're citing State
versus Bodenbach. Her reliance on Bodenbach is misplaced. In Bodenbach,
the Idaho Supreme Court found the second prong of fundamental
(02:42):
error satisfied because the defense attorney had objected to the
challenged jury instruction on a different basis. The court concluded
the failure to raise a constitutional objection could not have
been tactical because defense tried to stop the instruction from
being given at all. The courts implied logic, of course,
was that defense council would not tactically refrain from making
(03:04):
a constitutional argument that would have had the same result
as defense council's non constitutional objection. The Bodenbach logic does
not apply here. The District Court expressly stated that it
did not interpret Means motion to intervene as a request
to be heard in their citing State versus da Bell. Yet,
(03:25):
Valo's appellate claim is that the district court violated her
sixth Amendment right to council by refusing to hear from means.
Thus means motion to intervene does not serve the same
purpose as defense council's objection in Bodenbach, and Valo is
still left without evidence in the records showing any error
plainly exists. Next section, Valo has failed to show any
(03:48):
error was not harmless. Valot has failed to satisfy the
third prong of the Pery fundamental error test. The third
prong of the Pery fundamental error test requires Valo to
show the election error was not harmless. Ballot claims she
need not offer any proof in the record on this
prong because the complete deprivation of council is structural error
(04:10):
and prejudice is presumed. She is correct that the complete
deprivation of council is structural error, but the partial deprivation
of council is not, and it says see satur White
versus Texas, explaining the deprivation of council is structural error
only where it affected and contaminated the entire criminal proceeding,
(04:31):
and it says see Russian versus Spain, explaining council's absence
from x parte communication between judge and juror was subject
to harmless error review. They cite US versus Morrison, holding
counsel's absence during return of verdict subject to harmless error
review and Vines versus the US, holding council's absence during
(04:53):
trials subject to harmless error review because no evidence directly
inculpating defendant was presented wild defense counsel was absent. The
error of Valo alleges is subject to harmless error review
because she was not completely deprived of counsel during the hearings.
The record shows that Valo was represented by two attorneys
(05:14):
during the period she now claims total deprivation of counsel.
Means was present during both hearings, and Archibald was present
during the first and much of the second. In a footnote,
it says Valo asserts deprivation of council because Means could
not participate in the hearing where the District Court inquired
of daybel alone with his counsel, but that was intentionally
(05:37):
an ex parte hearing to protect Dabell's fit Amendment rights.
Even if the district court had granted Means his motion
to intervene, he would not have been allowed to participate
in that hearing. Most importantly, as Valo concedes, the hearings
were focused on Chad's rights to conflict free counsel rather
than Lori's rights council of her choice. Means inability to
(06:01):
participate in a hearing focused on a different criminal defendants
constitutional rights, even as a co conspirator, does not constitute
the complete deprivation of counsel required for structural error, especially
where he had the opportunity to fillo a response in
his client's case. In an effort to show prejudice, Baalot
throws out several possibilities of how the hearing might have
(06:24):
been different if Means participated. None of them satisfy the
third prong of fundamental error because none of them are
based on evidence in the record. For example, Ballot claims
the proceeding would have been different because Means would have
shared his version of events, but she fails to point
to any specific facts in the record that Means would
(06:44):
have shared at the hearing, much less explain how those
facts would have affected the proceedings. Also, Valo claims Means
could have impressed upon the court the importance of Miss
Dabell's right to counsel of choice, which seemed to get
overlooked in the process, but Valo's right to counsel of
choice did not get overlooked at the hearings. The parties
(07:05):
and the District Court intentionally focused on da Bell's rights
at the hearing because they were hearings in Da Bell's case.
And they quote State versus Dabll, this isn't about Lori
Chad da Bell has independent rights to not have a
former attorney in an adversarial position against him end quote.
The District Court's written decision disqualifying Means analyzed right to
(07:28):
counsel of choice at length, and Valo has failed to
explain what else Means would have said about the right
that would have affected the proceedings. Valot has thus failed
to show any error was not harmless. The next section,
Valo has failed to show the District Court committed fundamental
error by violating her due process right not to be
prosecuted or to be physically present at proceedings introduction. Valot
(07:54):
has failed to show fundamental error in the District Court's
decision to hold hearings in Dabell's separate criminal care case
while Valo was incompetent. Neither Valo's right not to be
prosecuted nor her right to be physically present applied to
proceedings in a separate criminal case. Moreover, the unique receidural
circumstances of this case placed the District Court in between
(08:17):
multiple constitutional rights belonging to Valo, who was at the
time incompetent. The District Court's decisions reflect that it protected,
not violated, Valot's constitutional rights.
Speaker 2 (08:29):
That is not fundamental error. The next section is standard
of review.
Speaker 1 (08:33):
Alleged constitutional errors during trial that are not followed by
a contemporaneous objection must be reviewed under the fundamental error doctrine,
and it says see State versus Medina. Next section, the
District Court did not commit fundamental error by holding a
hearing in a separate criminal proceeding without the then incompetent Valo.
(08:56):
The District Court's decision to hold a hearing in Dabel's
separate criminal case without Valo present and while she was incompetent,
did not constitute fundamental error. To prove fundamental error. Valo
must show that the alleged error one violated an unwaived
constitutional right, two lamely exists, and three was not harmless.
(09:20):
She cannot satisfy her burden on any prong Number one.
The district Court's decision to hold a hearing in a
different criminal proceeding while Valo was incompetent did not violate
her constitutional rights. Valo asserts the district court violated two
of her unwaived constitutional rights when it held hearings in
the debll case while she was deemed incompetent. She is
(09:42):
wrong on both counts. Valo first contends that the district
court violated her right not to be prosecuted while incompetent.
The due process right to a fair trial encompasses a
right not to be tried or convicted while incompetent to
stand trial. They site drop verse as Missouri. The same
standard applies to those who plead guilty, then, it says
(10:04):
see Go Dinez versus Moran. A state's statutory procedure for
determining an accused mental capacity to stand trial is constitutionally
adequate to protect the defendants do write process right not
to be tried while legally incompetent, and they cite State
versus Lovelace. In Idaho, this right is protected by Idaho
(10:26):
Code eighteen Dash two ten through eighteen Dash two twelve.
Pursuant to these statutes, no person who has a result
of mental disease or defect lacks capacity to understand the
proceedings against him or to assist in his own defense,
shall be tried, convicted, sentenced, or punished, or the commission
of an offense so long as such incapacity endures. If
(10:50):
the court determines the defendant lacks fitness to proceed, proceeding
against him shall be suspended, except for further proceedings related
to the defendant's competency, or if the defendant escapes from custody.
The case law in Idaho explaining this suspension is sparse,
but suggests the obligation to suspend proceedings would apply at
(11:11):
least as early as a preliminary hearing. See Lovelace rejecting
claim that magistrate failed to suspend proceedings at preliminary hearing
because requirements for suspension not meant the district court properly
suspended the proceedings in Valo's case on May twenty seventh,
twenty twenty one, prior to finding Valo was in fact
(11:33):
incompetent to proceed to trial, the District Court entered in
order staying Valo's case because of the issue of defendant's competency. Then,
on June ninth, twenty twenty one, the District Court entered
in order finding Valo was not competent to proceed and
suspended the case. Except as provided in Idaho Code. The
(11:54):
suspension was not lifted until the District Court found Valo's
competency was restored on April eleventh, twenty twenty two. Valo
contends the District Court violated the suspension of proceedings by
holding several hearings while Valo was incompetent, but the hearings
she sites were all held in a separate criminal case
(12:14):
against Dabell. The District Court went out of its way
to clarify that the proceedings Valo now sites were not
happening in the Valo case because of the stay, and
they cite from State versus Dabell. But right now, Case
sixteen twenty four is stayed and we're only having a
hearing on Case sixteen twenty three as a result, and
again a quote, as I think everyone's aware, Valo's case
(12:37):
is currently stayed pending a determination that Valo be found
competent to proceed.
Speaker 2 (12:43):
End quote.
Speaker 1 (12:43):
Valot's constitutional right to not be trialed while incompetent did
not require the district court to suspend a separate criminal case.
If the court determines that the defendant lacks fitness to proceed,
the proceedings against him shall be suspended. Furthermore, the district
court's entry of an order disqualifying means in Valot's case
(13:04):
while Valo was incompetent, did not violate this right. In
a footnote, it says the state reads Valo's opening brief
to argue only that the hearings violated valos do process right,
and she has thus waived the argument that the entry
of the order did so as well. They cite Gallagher
versus State, holding that when an appellent fails to support
(13:25):
an issue in the opening brief with law authority or argument,
that issue has been waived and cannot be revived in
the reply brief. However, the state covers the issue out
of an abundance of caution. The same argument would apply
to the hearings if this court were to determine that
the hearings were somehow part of Valo's case. Neither the
(13:47):
US Supreme Court nor Idaho's appellate courts have clearly defined
the suspension of proceedings that due process requires upon a
finding of incompetency. But we know, for example, that not
all proceedings are halted because certain proceedings necessarily must move forward.
They cite Idaho law suspending proceedings except for further competency
(14:08):
proceedings and when the defendant escapes costody. We know that
constitutional rights are less rigid than Valos suggest, at least
when placed in competition with other constitutional rights. They cite
Indiana versus. Edwards, holding constitutional right to represent oneself must
yield to the constitutional right not to be tried while
(14:30):
incompetent when a state insists that a borderline competent individual
must be represented at trial, or the fundamental fairness of
the proceedings, and they cite Wheat versus The US holding
trial court can reject defendants waiver of a conflict council
in part because courts have an independent interest in ensuring
(14:50):
that criminal trials are conducted within the ethical standards of
the profession and that legal proceedings appear fair to all
who observe them. District Court's actions in this case respected,
rather than violated, Balot's constitutional rights. The court found itself
in an unbelievable position when Valot's right to the effective
(15:11):
assistance of counsel otherwise conflict recounsel and her right not
to be trial while incompetent Means not only had a
conflict or the serious potential for a conflict, but he
continued to take actions on Valo's behalf despite the District
Court's orders suspending the proceedings. Means actions were both serious
(15:33):
viiling motions to dismiss the indictment and to change venue
in Valo's capital case, and seriously concerning, such as making
himself a witness to the proceeding and apparently violating attorney
client confidences of an incompetent client, and means actions necessarily
could not have been knowingly authorized by Valo given her incompetence.
(15:55):
If the District Court waited to disqualify means, it would
do so at the cost lost a Valo's right to
conflict free representation in a capital proceeding. Not to mention
its own independent interest in ensuring that legal proceedings appear
fair to all who observe them, recognizing that it had
a duty to protect her rights while Valo remained incompetent,
(16:16):
the District Court correctly acted and disqualified means. Notably, the
District Court's decision left the door open for Valo to
raise any concerns with the process after she was restored
to competency, and they quote if and when Valo is
restored to competency, the court could conduct an inquiry into
her interest in waiving qualified counsel. However, until such time,
(16:41):
this Court's duty to protect her rights remains Neither she
nor her counsel did so. The District Court's actions in
this case protected Valo's right to conflict free counsel, while
also preserving her right not to be prosecuted while incompetent.
Valot next argues the District Court violated her rights to
be present by conducting the hearings in the day Bell
(17:03):
case while she was incompetent. Separate from the Sixth Amendment
right to confront witnesses, a criminal defendant has a due
process right to be present in his own person whenever
his presence has a relation reasonably substantial to the fullness
of his opportunity to defend against the charge. They cite
State versus Dunlap and quoting Kentucky versus Stencer. But the
(17:27):
defendant does not have a right to appear when presence
would be useless or the benefit but a shadow. A
defendant claiming his absence from a hearing constituted a due
process violation has the burden of showing that he would
have gained anything by attending. They cite Us versus Gagnon,
holding defendant failed to show constitutional violation because he has
(17:49):
not shown how his presence could have affected the outcome
of either hearing. See also Clark versus Chappelle. In Clark,
the defendant claimed his due process right to be present
have been violated when the district court held a meeting
to discuss the defendant's counsel's potential conflict outside of the
defendant's presence. He claimed, if he were present at the
(18:11):
meetings about his council's conflict, he would have insisted on
a full hearing and removal of counsel. The Ninth Circuit
rejected his argument, quoting the discussions at this meeting were
later described by a defense council in open court for
the trial judge in the defendant's presence, and the defendant
made no objections or requests for a further hearing. Thus,
(18:33):
the court found the defendant's constitutional claim failed because he
had not shown that he would have gained anything by attending.
Vaalot's claim fails for more reasons than the defendants claims
in Clark. First, as explained above, the hearing's Valo now
claims she wanted to attend were held in a separate
criminal case. Neither the US Supreme Court nor Idaho's appellate
(18:56):
courts have held that a defendant has a due process
right to be fit physically present in hearings held in
someone else's criminal case. Second, Balot was incompetent at the
time of the hearings. By definition, Valot's presence would be
useless or the benefit but a shadow. And that's quoting Stenser,
because it's uncontested that she lacked the capacity to understand
(19:19):
the proceedings against her or to assist in her own defense.
So just to remind her, when you are deemed incompetent,
one of the biggest things is you cannot assist in
your defense, So her argument really falls very short. And
I also see the big issue with means filing things
even though she was incompetent, because everything should have halted.
(19:39):
So that's really the gist of all this. Third, even
setting aside the issue of competency, Balot's presence would have
been useless because the district court properly found the conflict
created by means dual representation could not be waived, and
they cite People versus Jean Baptiste finding defendant's presence was
not required at hearing on his count council's disqualification since
(20:02):
defense counsel could not have continued to represent the defendant
under the circumstances of this case. Therefore, Valo's presence was
not constitutionally required or like the defendant in Clark, Valo
has not shown that she would have gained anything by attending.
She did not even try, and their quoting Gagnon arguing
(20:23):
under the first prong of Perry only that she could
not have waived her right to be present. Whatever Valo
comes up with inner reply brief is insufficient because, like
the defendant in Clark, she did not present that request
argument or fact to the District Court rejecting same constitutional
claim where defendant was made aware of proceedings in his absence,
(20:44):
rejecting same constitutional claim where defendant was made aware of
proceedings in his absence and had made no objections or
requests when he became aware of the proceedings. Valo failed
to present any such argument or additional facts, even though
the District Court at least implicitly invited Valo to raise
the issue again upon her restoration to competency, and they
(21:07):
quote if and when Valo is restored to competency, the
court could conduct an inquiry into her interest in waiving
qualified counsel. Valo has thus failed to prove she had
a due process right to be present at the hearings
held in the day Bell case. The next section, Valo
has failed to show any error plainly exists in the record.
(21:28):
The second prong of the fundamental error test requires Valo
to show the alleged errors plainly exist, and they cite Perry.
Demonstrating an error plainly exists requires a showing that the
error is clear as a factual matter, without the need
for any additional information not contained in the appellate record,
including information as to whether the failure to object was
(21:51):
a tactical decision. Valo cannot do so on either of
these constitutional claims. Valo has failed to show that any
error plainly exc this with respect to her right not
to be prosecuted while incompetent Means motion to interveniently strongly
implied that he was trying to intervene for the purpose
of arguing the conflict on the merits, and they quote
(22:13):
intervention requests is timely and appropriate for this matter to
present to the court facts and events necessary to determine
sub motion. Then at the hearings, he seemed to suggest
he wanted to object to moving forward in the hearings
at all because of the stay, but as explained above,
Means still continue to file and take actions in Valo's case. Thus,
(22:36):
Means could have made a tactical decision not to raise
the constitutional objection because he wanted to be able to
keep filing motions and taking actions in his client's case.
Valo has also failed to show that any error plainly
exists with respect to her right to be physically present
at the proceedings. All she cites and are brief to
(22:56):
meet her burden on this claim is that one she
was physically absent from the hearing, and two that Means
stated in his oral argument on the motion intervene that
he was objecting to the hearing proceeding. Neither of those
facts imply, much less prove that Means did not make
a tactical decision on the issue of Valo's physical presence
(23:19):
at the hearing. Means did not say anything about Valo
being present at the hearing, and he did not make
any effort prior to the hearing to arrange for her presence.
If anything, the more reasonable inference from the current record
is that Means made the tactical decision to forego Valot's
physical presence because she was deemed incompetent. They cite State
(23:41):
versus Alvarado. The evidence Valo sites in the record does
not show the alleged error plainly exists. The next section,
Valo has failed to show any error was not harmless.
Valo has failed to satisfy the third prong of the
Pery fundamental error test. The third prong requires to show
the alleged errors were not harmless. Balot attempts to short
(24:04):
circuit this prong by asking this court to assume prejudice.
Unfortunately for Valo, that is not the law. Structural errors
where the error is assumed to be prejudicial, are the
exception and not the rule. They cite Rose versus Clark.
The Supreme Court has never held that the exclusion of
a defendant from a critical stage of his criminal proceedings
(24:27):
constitutes a structural error, and then Campbell versus Rice. On
the contrary, the Court has explained the right to be
present during all critical stages of the proceedings, as with
most constitutional rights, is subject to harmless error analysis unless
the deprivation, by its very nature cannot be harmless. They
(24:47):
cite Russian versus Spain. Subsequently, courts have found that violations
of these rights are generally subject to harmless error analysis.
They cite Born versus Curtain. This includes d'ess out of
hearing where the court discussed a potential conflict with defendant's counsel.
They cite Rice versus Wood, holding error subject to harmless
(25:09):
error review where defendant was absent when jury sentenced him
to death. Harmless error analysis makes sense when the defendant
has been erroneously excluded from a hearing, because the error
can be assessed in order to determine whether or not
it was harmless. The hearings in this case are no different.
One could readily determine whether Valo's absence from the hearings
(25:30):
had any effect on those hearings by determining what information
Valoe could have provided to the court or what action
she could have taken during the hearings, and then decide
whether that information or action would have actually affected the
outcome of the proceedings. This might require the development of
new facts after the hearings, but that does not make
(25:53):
the error structural. Why the opposite, and it says see
Russian Defendant's absence from conversation between judge and juror is
subject to harmless error analysis because effective supposed error can
normally be determined by a post trial hearing. The effect
Valo's absence had is therefore only unknowable on this record,
(26:16):
meaning Valo cannot satisfy the third prong of fundamental error
and the matter would be better handled in post conviction proceedings.
So we're going to end it there, because then we
get into a whole new argument. I'm hoping to have
that out today and finish this up. You know, for me,
this is interesting because there was a lot of stuff
that was under sal during her incompetency. We just didn't
(26:38):
know anything about what was going on behind the scenes.
I love reading appellate briefs and the responses to those.
A lot of times you throw a lot of stuff
against the wall and hope something sticks, but not at
all worried that anything in here is going to affect
her conviction in Idaho. And we'll have appeals out of
Arizona as well. So these appeals will go on for
(27:00):
quite a while. And with Chad's, because it's a death
penalty case, it's going to take a lot longer.
Speaker 2 (27:05):
But we haven't heard the last of these two yet.
So that is it for now.
Speaker 1 (27:10):
I hope you guys have a good rest of your
afternoon and we will see you soon.
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