December 20, 2025 • 38 mins
Part 2 breaking down the state's response to Lori Daybell's appeal motion:
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- The State of Idaho is asking the Idaho Supreme Court to uphold Lori Vallow Daybell’s murder convictions and life sentence without parole. Prosecutors argue the trial court acted correctly in all respects and that Vallow’s constitutional claims fail.
- The State says Vallow’s original attorney was properly disqualified due to a serious conflict of interest after representing both Vallow and Chad Daybell during the alleged conspiracy. Because Vallow was incompetent at the time, prosecutors argue she could not legally waive that conflict, and the court was right to reject any waiver given the severity of the case.
- The brief also rejects claims that Vallow’s rights were violated when hearings occurred during her incompetency, defends the admission of prior-acts evidence from Arizona to show motive and conspiracy, and argues trial delays were justified and did not violate speedy trial rights. The State asks the court to affirm the convictions .
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Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
What's you know, Alibiers. Welcome to another episode of Pretty
Lies and Alibis. I'm Jigi. Good to have you here
at Saturday, December twentieth. I actually recorded this yesterday, but
didn't have time to edit and get it out before
I had to go to my son's fire departments Christmas party.
And I have to brag for a moment here. He
won Firefighter of the Year. He was shocked, he had
(00:22):
no clue, and I have to say one of the
proudest mom moments I've had with that kid so far.
He has worked so hard getting his Firefighter one and
two over his sophomore and junior years of high school,
and then getting his EMT his senior year. Not too
shabby to be eighteen years old. So this next episode
we really get into the part of the filing that
(00:45):
talks about the justification the district court had in disqualifying
Mark Means. It's a bit lengthy, but there are some
nuggets in there, and a big topic of discussion is
how Lori was incompetent during a lot of this when
the decision was being made to disqualify Means, and also
some unethical things that Means did in the process. So
(01:08):
let's jump in. We are going to jump into the
argument of the state's response to Laurie's appeal. Let's jump in.
Ballot has failed to show that the District Court violated
her sixth Amendment right to counsel of her choice by
disqualifying her attorney. In Part A is the introduction the
District Court properly acted to protect Ballot's sixth Amendment right
(01:32):
to the effective assistance of counsel by disqualifying her attorney,
who had previously represented her co conspirator with respect to
the same conspiracy. Balot's right to her counsel of choice
does not extend to an attorney who is laboring under
an actual conflict or serious potential conflict of interest. Nor
(01:52):
could Valo's proffered waiver of the conflict suffice. Because she
was incompetent and could not knowingly intelligently involuntarily waive her
right to conflict free counsel, and because the nature and
circumstances of this case required the District Court to reject
any waiver to protect the fundamental fairness of the proceedings.
(02:13):
The District Court did not air Art B the standard
of review. The decision to grant or deny emotion to
disqualify counsel is within the discretion of the trial court,
and they list several cases deciding motions to disqualify, even
if those matters are grounded in the ethical rules, is
a proper discretionary decision to be made by the trial
(02:35):
courts of this state when a violation of a constitutional
right is asserted, Idaho's appellate courts will defer to the
trial court's factual findings unless those findings are clearly erroneous.
See the district Court acted well within its discretion in
disqualifying Means from representing Valo. The sixth Amendment protects a
(02:56):
criminal defendants' rights to the assistance of council for furs
or her defense. One element of the right to counsel
is the right of a defendant who does not require
appointed council to choose who will represent them, and they
list a couple of cases here. But the right to
choose one's own counsel is circumscribed in several important respects,
and they cite Wheat versus the United States as relevant here.
(03:20):
A criminal defendant does not have an absolute right to
the counsel of his choice when that council is burdened
by a conflict of interest or the serious potential for
a conflict of interest, a defendant can sometimes waive the conflict,
though a waiver by the defendant does not necessarily solve
the problem. Because the district Court has an independent interest
(03:42):
in ensuring that justice is done, a district court has
broad discretion in refusing a proffered waiver of an actual
conflict or the serious potential or a conflict. The district
Court acted within its broad discretion when it disqualified Means
from representing Valo. Specifically, the district Court properly one found
(04:04):
the existence of an actual conflict or serious potential for
a conflict. Two recognized Valo could not waive any conflict
because she was incompetent at the time of the disqualification decision,
and three rejected any proffered waiver because of the seriousness
of the charges and risk of prejudice to Valo. Number one,
(04:26):
the district Court properly found an actual conflict or serious
potential for conflict. Because Means represented both Valo and day
Bell during the alleged conspiracy. The district Court properly found
a conflict of interest or serious potential for a conflict
arose from means representing both Dabel and Valo in the
context of the same criminal conspiracy. A district court can
(04:50):
disqualify defend its council of choice not only by a
demonstration of an actual conflict, but by a showing of
a serious potential for conflict. They cite Wheat versus the US. Unfortunately,
for all concern, however, a district court must pass on
the issue not with the wisdom of hindsight after the
(05:10):
trial has taken place, but in the murkier pre trial context,
when relationships between parties are seen through a glass darkly. Thus,
district courts should be given substantial latitude in this area,
because the likelihood and dimensions of nascent conflicts of interests
are notoriously hard to predict, even for those thoroughly familiar
(05:32):
with criminal trials. When it comes to conflicts, multiple representation
is king. They cite Collier versus Sullivan, a possible conflict
adheres in almost every instance of multiple representation. In previous cases,
we have recognized that multiple representation of criminal defendants engenders
(05:52):
special dangers of which a court must be aware. Indeed,
courts routinely find conflicts were the same attorney represents co
conspirators in the context of the same conspiracy, regardless of
whether the representation is successive or concurrent. They cite US
versus Martinez, it is true that having previously represented a
(06:14):
co conspirator with regard to the same matter, defense counsels
should not have represented defendant. They cite US versus Ruiz,
finding serious potential for conflict in successive representation of co conspirators.
They cite another case finding serious potential for conflict where
attorney represented a co conspirator during part of the pre
(06:35):
indictment phase of this case, and then US versus Collins
finding serious potential for conflict and disqualifying counsel who previously
represent a co conspirator, even though prior representation was very
limited in scope the potential concerns of voked our legion.
The conflicted attorney may pull punches on cross examination of
(06:57):
his previous client, or his knowledge regards his previous client
could provide an advantage on cross examination. The conflict could
compromise counsel's ability to explore plea negotiations should the current
client choose to, and it can risk the attorney improperly
utilizing confidential information gained from the former client. They cite
(07:18):
United States versus culp Because of the lawyer's continuing duty
of confidentiality the representation, be it simultaneous or successive, of
more than one defendant charged in the same criminal conspiracy,
inevitably it presents a conundrum for the lawyer, who is
so engaged. The risk of a conflict significantly increases when
(07:40):
the disqualification decision is made early in the case, since
the defense does not yet know much of the substance
of the government's case in chief, which necessarily creates uncertainties
in defense strategy. They cite US versus Cleveland, and also
wheat a few bits of unforcing testimony or or a
(08:00):
single previously unknown or unnoticed document may significantly shift the
relationship between multiple defendants, and even if it turns out
that neither co conspirator chooses to turn on the other,
they might still have divergent interest at sentencing when issues
such as the defendant's role in the offense and his
relationship two other defendants come into play. They cite a
(08:23):
couple of cases, and it says recognizing defense attorneys in
multiple defendant cases often minimize the culpability of their own
client by emphasizing that of another defendant. With these concerns
in mind, the presence of a conflict or serious potential
for a conflict is self evident in this matter. For starters,
there can be no doubt but that Means represented day
(08:47):
Bell with respect to the alleged conspiracy. Means publicly stated
as much on social media when he posted on April
twenty eighth, twenty twenty, please note that this office represents
mister Chad Daybell. If any agency, investigative authority, etc. Wishes
to contact my client, please contact my office directly. Neither
(09:08):
the content nor the source of the communication has been disputed.
Means also contacted the prosecutor overseeing the state's efforts and
asked him to direct investigation efforts relating to Dabell or
Valo to him. He also published a press release indicating
he represented Dabll, and Means expressly informed the court that
(09:28):
he represented both Valo and dabl Means was not the
only person involved in the representation to indicate the representation occurred.
At the same time Means was publicly stating he represented Dabell.
Dabel indicated on a phone call with Valo that Means
was both Dabell's and Valo's attorney. In light of this evidence,
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the District Court properly found that Means concurrently represented the
codefendants in those cases within the timeframe of the alleged conspiracy.
By the way, it just hit me when Mark Means
set in court that he did not represent Chad and
Rob Wood's face, he just kind of like made this
funny expression and cocked his head, like, what I need
(10:12):
to find that and post that for you guys. Maybe
on the next episode. Just popped him ahead. Moving on,
the factual finding supported by the record leads to the
inescapable conclusion that a conflict or serious potential or conflict existed.
Under the Idaho Rules of Professional Conduct, Means had a
conflict that at the very least had to be waived
(10:35):
by Valo and da Bell because of the significant risk
that his representation of Valo would be limited by his
prior representation of da Bell. As the District Court explained
in the context of this case, because Davel and Valo
are named co conspirators, necessarily they have interests adverse to
(10:55):
one another. The District Court's conclusion is supported by the
same rationale articulated by other courts who have found a
conflict in similar situations. For example, if day Bell decided
to testify a decision over which Means had no control,
Means may either pull punches on cross examination or benefit
(11:17):
from the knowledge he obtained from his former representation of Daybell.
Means divided loyalties may also interfere with any plea negotiations,
and there is always a risk that Means would utilize
intentionally or inadvertently information protected by his previous representation of
day Bell. Moreover, as the District Court explained, this case
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was in its infancy at the time it disqualified, Means
Ballot had not yet been arraigned. Neither Means Ballot, who
was at the time incompetent day Bell, nor prior could
accurately predict at the time how the defense strategy would
play out for either the trial or the sentencing. This
significantly increased the risk that a conflict would occur, given
(12:02):
the likelihood that Ballot or day Bell could turn on
the other, either to attempt to avoid a guilty verdict
or the death penalty. Ballot argues the District Court aired
because the record does not contain concrete evidence of an
actual conflict, such as specific information means learned when you
represent a day Bell that would affect his representation of Valo.
(12:25):
Her demand for concrete answers in the Murcier free trial
context would place an impossible burden on district courts and
runs contrary to the US Supreme Court's decision in Wheat,
the very nature of trying to predict how potential conflicts
will play out necessarily includes some amount of speculation. Indeed,
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the primary reason the Court affirmed the disqualification of Defense
Council in Wheat was that the government intended to call
Defense Council's former client as a witness and might readily
have tied certain deliveries of marijuana by the fore client
to the defendant. Neither of those eventualities could have been
known by the district court when viewing the situation as
(13:07):
it did before trial. Yet the Supreme Court affirmed the
district court's instinct and judgment based on experience in making
its decision, even though other district courts might have reached
differing or opposite conclusions with equal justification, and it says
see also US versus Sotello rejecting argument that District Court's
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disqualification decision was unsupported and dubious speculation as to a conflict,
because the evaluation of the facts and circumstances of each
case must be left primarily to the informed judgment of
the trial court. They cite Us versus Sanders. Thus, although
conflicted counsel may think he learned a nothing that would
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be useful in cross examining his prior client, it may
be next to impossible to predict with certainty that such
is the case. Here, the district Court had a capital
case that was in its infancy, making the likelihood and
dimensions of nascent conflicts of interest notoriously hard to predict.
But the court had in front of its sufficient facts
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to reasonably conclude an actual conflict or serious potential for
a conflict existed. Means had concurrently represented two co conspirators
on the issue of and during the timeframe of the
alleged conspiracy to commit multiple murders. He continued to represent
one of the co conspirators and planned to do so
through trial. The co conspirator, who was his former client,
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had eluded he had shared confidential information with mister Means
that the former client and co conspirator believed would be
covered by attorney client privilege, and both co conspirators were
scheduled for a joint trial which would invite all the
conflict issues explained above. The District Court acted well within
the substantial latitude the US Supreme Court has given it
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when it decided in an actual conflict or a serious
potential conflict existed that would require at the very least
a waiver of the conflict from Valo number two. Valo
could not waive the conflict because she was incompetent. The
District Court's finding of a conflict or serious potential of
a conflict was sufficient in this case to disqualify Means
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without deciding whether the conflict could be waived, because Valo
was in no position to weigh the conflict. To be valid,
a waiver of the right to counsel must have been
affected knowingly, voluntarily, and intelligently. They cite state versus lovelace.
Just as with the relinquishment of other important constitutional rights,
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waivers of conflict free counsel must be knowing, intelligent acts
done with sufficient awareness of the relevant circumstances and likely consequences,
and courts must accordingly indulge every reasonable presumption against the
waiver of the unamp haired assistance of counsel. They cite
Douglas versus us. There is no controversy here. There appears
(16:07):
to be unanimous federal Circuit court consensus that a criminal
defendants waiver of the sixth Amendment right to conflict free
counsel must be knowing, voluntary, and intelligent. They cite State
versus Duffy, and that standard requires something more than mere competency.
They cite Go Dinez versus Moran. A criminal defendant may
(16:29):
not waive his right to counsel unless he does so
competently and intelligently Us versus Stites, explaining even a competent
person may not have the mental ability to waive a
constitutional right. At the time the district Court disqualified Means
as Valo's attorney, Valot was not competent to stand trial.
(16:50):
According to Idaho law, if Valo lacked the capacity to
understand the proceedings against her or to assist in her
own defense, she could not possibly waigh a fundamental constitutional
right knowingly, voluntarily, and intelligently. Valot argues any conflict was
mitigated because she previously signed a waiver prior to being
(17:11):
declared and competent, but the waiver erroneously espoused, means flawed
and doubly rejected theory that he had provided only limited
representation to Dabel. A waiver that misstates the nature of
the conflict is no waiver at all. They signed a case.
The waiver document stated that there was no conflict of interest,
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so it can hardly be read as waving one. Given
the erroneous description of the conflict in the waiver itself,
Valo's signing of the waiver does not constitute a knowing, intelligent,
and voluntary waiver of the actual conflict at issue. Moreover,
a conflict waiver side prior to the issuance of an
indictment is not valid. They signed a case that says
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the document was signed before the indictment was issued and
a few years before trial, so it could not have
taken into account the actual scope of the case as
it proceeded. Valo signed the waiver she cites on March
thirty first, twenty twenty, more than one year prior to
the Grand jury's indictment. At the time she signed the waiver,
she had no knowledge that she would be charged with
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murder in a death eligible case, factors any reasonable person
would consider in deciding whether to waive a fundamental constitutional right. Thus,
Valo had not signed a legally valid waiver at the
time of the District Court's decision, and for incompetence to
proceed to trial meant she could not sign one. Valo
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also suggests the district Court should have waited until Valo's
competency was restored to decide the disqualification issue so she
could decide whether to sign a waiver. However, as the
District Court explained, it could not wait to decide the
disqualification issue and properly protect Valo's constitutional rights because Means
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continued to actively represent Valo under a conflict of interest
while she was incompetent, including by engaging in suspect ethical
behavior by publicly filing apparently privileged information Means obtained from
Valo under the umbrella of the privilege she enjoys. Though
to be clear, the District Court left the door open
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to Valo raising the issue again once competent, 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, this Court's duty to
protect her rights remains. Neither Valo nor her counsel took
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the District Court up on its offer. Because the District
Court properly found a conflict or serious potential conflict existed
and Valo could not waive the conflict, the District Court
properly disqualified Means as value attorney. The next section, the
District Court properly found the conflict could not be waived.
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Even if the District Court could have accepted Valo's March thirty, first,
twenty twenty waiver as knowing, intelligent and voluntary, the District
Court properly decided the conflict in this case could not
be waived. The District Court must be allowed substantial latitude
in refusing waivers of conflicts of interest, not only to
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those in rare cases where an actual conflict may be
demonstrated before trial, but in the more common cases where
a potential for conflict exists, which may or may not
burgeon into actual conflict as the trial progresses. They cite Wheat,
a waiver is not always a sufficient cure when a
conflict or serious potential conflict exists, because Courts have an
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independent interest in ensuring that criminal trials are conducted within
the ethical standards of the profession and that legal proceedings
appear fair to all who observe them. Two primary goals
in deciding whether to accept the waiver of conflict free
representation are to protect the critically important candor that must
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exist between client and attorney and to engender respect for
the court in general. They cite Us versus Moscone To
that end, the trial court may enforce the ethical rules
governing the legal profession with respect both to my attorney
communications and to conflict free representation, again, regardless of any
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purported waiver. Even in the murkier pre trial context, courts
have readily identified the representation of multiple co conspirators as
a serious potential conflict that may justify refusing a waiver.
They cite Us versus Sotello, affirming District Court's refusal to
accept waivers from co conspirators represented by same council, because
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District Court believed the conflict would arise, particularly in pre
trial plea negotiations. In the case of successive representation, the
probability of prejudice dramatically increases In circumstances where the attorney
represented a code defendant during the pre indictment phase of
the same proceeding. They also cite Moss versus the US.
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This probability reaches near certainty where the attorney's former and
current clients collaborate to mount a defense. The potential for
harm is further increased where the representation of the defendant
was paid for by a codefendant. See Wood versus Georgia,
which says, Ultimately, the evaluation of the facts and circumstances
of each case under this standard must be left primarily
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to the informed judgment of the trial court. The district
court acted within its substantial latitude when it found the
conflict or serious potential conflict could not be waived. In
addition to the issues explained above, the district court had
a let at least three additional reasons to reject any waiver. First,
the nature of the case weighed in favor of not
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accepting a waiver, It says Sea Wheat versus Us, affirming
decision to reject waiver in part because the attorney sought
to represent multiple co conspirators in a complex drug distribution scheme.
The state charged both Valo and day Bell with a
massive conspiracy resulting in the deaths of three people, and
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this was a family affair. The state's theory was that
Valo and Da Bell engaged in their criminal conduct and
killed their own family members, two of Valo's children and
Da Bell's wife so that Valo and Da Bell could
be together. Even the complex drug distribution scheme in Wheat
could not hold a candle to the complicated conspiracy with
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which Valo have been charged and Valo's alleged co conspirator
have facilitated and paid for Means representation to Boot see
Wood versus Us. Courts and commentators have recognized the inherent
dangers that arrive when a criminal defendant is represented by
a lawyer hired and paid by a third party, particularly
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when the third party is the operator of the alleged
criminal enterprise. Second, as the District Court explained, this decision
considered Means unusual behavior in the case. Means potentially made
himself a witness in the case, thereby increasing the risk
of conflicts by filing multiple pleadings in the form of
(24:35):
declarations containing factual assertions of mister Means submitted under penalty
of perjury. Yet the Idaho rules of professional conduct stress
that an attorney should avoid becoming a witness in his
client's case. The District Court was also concerned by what
appeared to be Means intentional or unintentional waiver of Valu's
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attorney client privilege, where mister Means had submitted to the
court purportive facts from statements Balot made the mister Means
under the umbrella of the privilege she enjoys while she
has been endeemed incompetent to proceed, a second apparent violation
of Idaho's ethical rules for attorneys. The District Court's reliance
(25:18):
on this behavior to refuse to accept any waiver was
proper see Moscone. The trial court may enforce the ethical
rules governing the legal profession with respect both to client
attorney communications and to conflict free representation, again, regardless of
any purported waiver they cite us versus stites. A defendant
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cannot complain because a well informed trial court would not
let a lawyer who had already grossly misbehaved in the
case returned to the scene of his misbehavior. Ballot downplays
the District Court's concerns by labeling Means ethically suspect behaviors
as idiosyncrasies, aiming Valo had the right to choose those idiosyncrecies,
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But given Valo was incompetent at the time, nothing in
the record suggests Valo was aware of or chose means
behavior that had raised serious concerns with the district Court
set to preside over her capital trial. Even if she
wanted to choose means ethically suspect behaviors, Ballot did not
have the right of her counsel of choice if that
(26:26):
council could not follow the ethical rules. The district Court
had an independent interest in ensuring that Valo's case was
conducted within the ethical standards of the profession and that
her high profile legal proceedings appeared fair to all who
observed them. Third, the District Court was confronted with two
facts that made this virtually impossible task even more difficult.
(26:50):
Valot was incompetent and faced the death penalty, and it
says to see Wheat stressing the difficulty of the analysis
meant these decisions must be left primarily to the informed
judgment of the trial court. The district Court was primarily
concerned with protecting Valo's fundamental right to the effective assistance
of counsel exactly as it should have been, it says
(27:13):
to see Wheat. The essential aim of the sixth Amendment
is to guarantee an effective advocate for each criminal defendant,
rather than to ensure that a defendant will be represented
by the lawyer whom he prefers. And because Valo was
incompetent at the time, all the district court had was
means instance that Valo would want to waive any conflict
(27:35):
so that he could represent her, even though Valo was
now charged with capital offenses and the states were infinitely
higher than they have been before Valo was determined to
be incompetent, And they cite Wheat, nor is it amiss
to observe that the willingness of an attorney to obtain
such waivers from his clients may bear an inverse relation
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to the care with which he conveys all the necessary
information to them. The district Court was in effect hamstrung
by Valo's present inability to be thoroughly examined to ascertain
whether she could knowingly, intelligently and meaningfully waive her right
to conflict free counsel. In those circumstances, the District Court
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decided to cautiously act in favor of Valo's right to
the effective assistance of counsel by disqualifying Means and appointing
a death penalty qualified attorney as lead counsel. The Court
should affirm that decision the next section. Valo has failed
to show the District Court committed fundamental error by violating
(28:36):
her six Amendment right to the assistance of counsel introduction.
Valot's framing of this issue is both fatal and flawed.
Set on placing blame on the district Court for not
hearing her attorney's objection to his own disqualification, she tries
to turn the district Court's denial of her motion to
intervene in a separate criminal case into a constitution violation,
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But in reaching beyond her grasp, she fails to recognize
that the only reason her attorney's objection was not heard
is that he failed to communicate the way lawyers do
by filing an objection in their client's case. The district
Court did not air much less fundamentally air by refusing
to allow Ballot to intervene in a separate criminal proceeding.
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The next section. Standard of review alleged constitutional errors during
trial that are not followed by a contemporaneous objection must
be reviewed under the fundamental error doctrine. The next section,
the district Court did not commit fundamental error by denying
Valo's attorney's request to intervene in a separate criminal case.
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The district Court's denial of means motion to intervene in
the dbel case did not constitute fundamental error. To prove
fundamental error, Ballot must show that any error in the
district Court's denial of means motion to intervene number Verer
one violated an unwaived constitutional right two plainly exists in
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three was not harmless. She cannot do so. The next section.
The district Court's denial of means motion to intervene did
not violate an unwaived constitutional right. Valo has failed to
show the district Court violated her right to counsel by
denying her counsel's request to intervene in a separate criminal proceeding.
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The sixth Amendment guarantees a criminal defendant the right to
counsel during all critical stages of the adversarial proceedings against him.
A cite estrata versus State, quoting Us versus Wade. In
determining whether a particular stage is critical, it is necessary
to analyze whether a potential substantial prejudice to defendant's rights
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indhers in the particular confrontation, and the ability of counsel
to help avoid that prejudice. Valos claimed that the District
Court deprived her of counsel by refusing to allow Means
to argue at a hearing in the day Bell case
fails for multiple reasons, starting with the doctrine of invited error.
The doctrine of invited error applies to a stop a
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party from asserting an error when the party's own conduct
induces the commission of the error. They cite BB versus
North Idaho Day's surgery put simply, errors consented to, acquiesced in,
or invited are not reversible. Valo's entire six Amendment claim
rest on the District Court's refusal to grant means motion
(31:33):
to intervene, which she interprets on appeal as the district
Court affirmatively stopping her counsel from being heard. But that
is not what happened. The District Court ensured both Means
and Archibald were present at the hearing. Then, when it
denied means motion to intervene, it expressly stated that it
misunderstood Means request to be for Valo to become a
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party in day Bell's case. And they quote, it's not
a request to allow argument on an issue affecting your client,
mister Means, end quote. Despite the District Court's clear explanation
of its ruling, Means remained at the rest of the
hearing but never asked to be heard. The District Court
ensured Means was present at the hearing, it did not
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also have an obligation to open Means his mouth. In
a fitnote, it says the district Court did make clear
at the end of the hearing that it did not
allow for Means his testimony, but noted he was not
called as a witness anyway. This changes nothing. Valot's argument
on appeal is not that the District Court should have
allowed her attorney to testify as a witness at the hearing.
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Means also failed to file his objection in the proper
form which was his client's case. Means failure to seek
an opportunity to be heard either by filing his objection
in his client's case or speaking up at a hearing
at which he was present, was at the very least
acquiescence in the error Valo now erroneously claims on appeal.
(33:02):
Even setting aside invited error, the procedural history of Valo's
case confirmed she was not denied the right to counsel
with respect to the state's motion to disqualify Means. The
state filed its motion to disqualify Means in Valo's case
on July twenty seventh, twenty twenty one. The District Court
entered its order in Valo's case disqualifying Means on December
(33:25):
twenty eighth, twenty twenty one. In the five months between
the state filing its motion and the district Court granting
the motion, Means did not file a substantive response or
otherwise object in Valo's case to the state's motion. This
even though Means filed at least nine other filings in
the same period substantive motions and responses, such as emotion
(33:48):
to dismiss the indictment and an objection to proceedings occurring
in Dabel's case. Well, whatever reason, Means chose not to
file a response or otherwise object to the state's motion
in the appropriate forum that is not the deprivation of
counsel without acknowledging means failure to file anything in the
proper form like his client's case. Regarding the State's motion,
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Valo now argues the district court somehow violated her six
Amendment right by refusing to allow her counsel to argue
emotion in a different criminal case. She cites no authority
or the proposition that a criminal defendant has a six
Amendment right to have counsel argue in a co conspirator's
separate criminal case, and in all the examples she gives
(34:33):
the court to identifying critical stages the courts were obviously
referring to stages in the defendant's own criminal proceedings, giving
as examples post indictment, police lineups, arraignments, preliminary hearings, and sentencing.
Valot has the right to counsel in the criminal proceedings
against her, She does not have the right to counsel
(34:54):
in the criminal proceedings against someone else, And they cite
estrata the six Minis guarantees a criminal defendant the right
to counsel during all critical stages of the adversarial proceedings
against him. Even though Valo did not have a constitutional
right to have counsel heard at the dayball hearings, the
District Court was careful to include both Means an Archibald
(35:17):
in the hearings. In the Dabel case. The district Court
did not allow Means to formally intervene, but it allowed
both Means an Archibald to be present for the sealed
hearing in the Dabel case because it recognized the motion
to disqualify really does pertain to both cases, as it's
been filed in both cases, and it's appropriate for determinations
(35:38):
to be made in each of the cases, as well
as having all counsel appear as they are here today.
The state also explained that it did intend for this
motion to be filed in both cases because it's an
applicable motion to both cases. The state even went so
far as to explain with Means present, that the Value
(35:58):
case was the more appropriate plays for mister Means to
raise his argument. Means heard all of this and still
chose not to file a response to the state's motion
in the Valo case, despite affirmatively arguing we have two
different cases. Balo concedes the hearings were heard under a
different case number, but argues the case number does not
(36:19):
matter because the topic of the hearing was whether to
disqualify her counsel. But the parties and the District Court
were careful in the hearing to focus on Dabell's rights
as opposed to Valo's rights. As Valo concedes elsewhere in
her brief, the State steered the direction of the hearing,
which occurred on August thirtieth and was continued to September eighth,
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twenty twenty one, to focus on Chad's rights to conflict
free counsel rather than Lori's right to counsel of her choice.
The District Court's order disqualifying means was entered in Valo's
case focused solely on Valo's rights. Valot's concession with respect
the content of the hearing at least implicitly acknowledges that
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Dabell also had rights that needed to be protected because
of means conflict. Unsurprisingly, the arguments over Dabell's rights happened
in Dabell's case and the arguments over Valo's rights happened
in the Valo's case. In writing in a footnote, it
says Valo has not raised on appeal the argument that
the district Court should have held a hearing in the
(37:23):
Valo case. In any event, the district Court did not
need to hold a hearing because Means never objected to
the state's motion, and it says see us versus Mays,
affirming disqualification of defense counsel even though district Court did
not hold a hearing, because although defense counsel said he
would file a brief in opposition to the motion, he
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never did. Means had the opportunity to participate in arguments
over Valo's rights by filing a response to the state's
motion in the appropriate forum. He just chose not to
do so. Vaalo has thus failed to prove or constitutional
right to counsel was violated. So we're going to end
it there. They keep going about this for a little while,
(38:08):
and we are on page thirty of sixty eight, so
it's still a ways to go. And that is it
for today. I hope you guys have a good rest
of your evening. See you soon.
What's you know, Alibiers. Welcome to another episode of Pretty
Lies and Alibis. I'm Jigi. Good to have you here
at Saturday, December twentieth. I actually recorded this yesterday, but
didn't have time to edit and get it out before
I had to go to my son's fire departments Christmas party.
And I have to brag for a moment here. He
won Firefighter of the Year. He was shocked, he had
(00:22):
no clue, and I have to say one of the
proudest mom moments I've had with that kid so far.
He has worked so hard getting his Firefighter one and
two over his sophomore and junior years of high school,
and then getting his EMT his senior year. Not too
shabby to be eighteen years old. So this next episode
we really get into the part of the filing that
(00:45):
talks about the justification the district court had in disqualifying
Mark Means. It's a bit lengthy, but there are some
nuggets in there, and a big topic of discussion is
how Lori was incompetent during a lot of this when
the decision was being made to disqualify Means, and also
some unethical things that Means did in the process. So
(01:08):
let's jump in. We are going to jump into the
argument of the state's response to Laurie's appeal. Let's jump in.
Ballot has failed to show that the District Court violated
her sixth Amendment right to counsel of her choice by
disqualifying her attorney. In Part A is the introduction the
District Court properly acted to protect Ballot's sixth Amendment right
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to the effective assistance of counsel by disqualifying her attorney,
who had previously represented her co conspirator with respect to
the same conspiracy. Balot's right to her counsel of choice
does not extend to an attorney who is laboring under
an actual conflict or serious potential conflict of interest. Nor
(01:52):
could Valo's proffered waiver of the conflict suffice. Because she
was incompetent and could not knowingly intelligently involuntarily waive her
right to conflict free counsel, and because the nature and
circumstances of this case required the District Court to reject
any waiver to protect the fundamental fairness of the proceedings.
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The District Court did not air Art B the standard
of review. The decision to grant or deny emotion to
disqualify counsel is within the discretion of the trial court,
and they list several cases deciding motions to disqualify, even
if those matters are grounded in the ethical rules, is
a proper discretionary decision to be made by the trial
(02:35):
courts of this state when a violation of a constitutional
right is asserted, Idaho's appellate courts will defer to the
trial court's factual findings unless those findings are clearly erroneous.
See the district Court acted well within its discretion in
disqualifying Means from representing Valo. The sixth Amendment protects a
(02:56):
criminal defendants' rights to the assistance of council for furs
or her defense. One element of the right to counsel
is the right of a defendant who does not require
appointed council to choose who will represent them, and they
list a couple of cases here. But the right to
choose one's own counsel is circumscribed in several important respects,
and they cite Wheat versus the United States as relevant here.
(03:20):
A criminal defendant does not have an absolute right to
the counsel of his choice when that council is burdened
by a conflict of interest or the serious potential for
a conflict of interest, a defendant can sometimes waive the conflict,
though a waiver by the defendant does not necessarily solve
the problem. Because the district Court has an independent interest
(03:42):
in ensuring that justice is done, a district court has
broad discretion in refusing a proffered waiver of an actual
conflict or the serious potential or a conflict. The district
Court acted within its broad discretion when it disqualified Means
from representing Valo. Specifically, the district Court properly one found
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the existence of an actual conflict or serious potential for
a conflict. Two recognized Valo could not waive any conflict
because she was incompetent at the time of the disqualification decision,
and three rejected any proffered waiver because of the seriousness
of the charges and risk of prejudice to Valo. Number one,
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the district Court properly found an actual conflict or serious
potential for conflict. Because Means represented both Valo and day
Bell during the alleged conspiracy. The district Court properly found
a conflict of interest or serious potential for a conflict
arose from means representing both Dabel and Valo in the
context of the same criminal conspiracy. A district court can
(04:50):
disqualify defend its council of choice not only by a
demonstration of an actual conflict, but by a showing of
a serious potential for conflict. They cite Wheat versus the US. Unfortunately,
for all concern, however, a district court must pass on
the issue not with the wisdom of hindsight after the
(05:10):
trial has taken place, but in the murkier pre trial context,
when relationships between parties are seen through a glass darkly. Thus,
district courts should be given substantial latitude in this area,
because the likelihood and dimensions of nascent conflicts of interests
are notoriously hard to predict, even for those thoroughly familiar
(05:32):
with criminal trials. When it comes to conflicts, multiple representation
is king. They cite Collier versus Sullivan, a possible conflict
adheres in almost every instance of multiple representation. In previous cases,
we have recognized that multiple representation of criminal defendants engenders
(05:52):
special dangers of which a court must be aware. Indeed,
courts routinely find conflicts were the same attorney represents co
conspirators in the context of the same conspiracy, regardless of
whether the representation is successive or concurrent. They cite US
versus Martinez, it is true that having previously represented a
(06:14):
co conspirator with regard to the same matter, defense counsels
should not have represented defendant. They cite US versus Ruiz,
finding serious potential for conflict in successive representation of co conspirators.
They cite another case finding serious potential for conflict where
attorney represented a co conspirator during part of the pre
(06:35):
indictment phase of this case, and then US versus Collins
finding serious potential for conflict and disqualifying counsel who previously
represent a co conspirator, even though prior representation was very
limited in scope the potential concerns of voked our legion.
The conflicted attorney may pull punches on cross examination of
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his previous client, or his knowledge regards his previous client
could provide an advantage on cross examination. The conflict could
compromise counsel's ability to explore plea negotiations should the current
client choose to, and it can risk the attorney improperly
utilizing confidential information gained from the former client. They cite
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United States versus culp Because of the lawyer's continuing duty
of confidentiality the representation, be it simultaneous or successive, of
more than one defendant charged in the same criminal conspiracy,
inevitably it presents a conundrum for the lawyer, who is
so engaged. The risk of a conflict significantly increases when
(07:40):
the disqualification decision is made early in the case, since
the defense does not yet know much of the substance
of the government's case in chief, which necessarily creates uncertainties
in defense strategy. They cite US versus Cleveland, and also
wheat a few bits of unforcing testimony or or a
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single previously unknown or unnoticed document may significantly shift the
relationship between multiple defendants, and even if it turns out
that neither co conspirator chooses to turn on the other,
they might still have divergent interest at sentencing when issues
such as the defendant's role in the offense and his
relationship two other defendants come into play. They cite a
(08:23):
couple of cases, and it says recognizing defense attorneys in
multiple defendant cases often minimize the culpability of their own
client by emphasizing that of another defendant. With these concerns
in mind, the presence of a conflict or serious potential
for a conflict is self evident in this matter. For starters,
there can be no doubt but that Means represented day
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Bell with respect to the alleged conspiracy. Means publicly stated
as much on social media when he posted on April
twenty eighth, twenty twenty, please note that this office represents
mister Chad Daybell. If any agency, investigative authority, etc. Wishes
to contact my client, please contact my office directly. Neither
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the content nor the source of the communication has been disputed.
Means also contacted the prosecutor overseeing the state's efforts and
asked him to direct investigation efforts relating to Dabell or
Valo to him. He also published a press release indicating
he represented Dabll, and Means expressly informed the court that
(09:28):
he represented both Valo and dabl Means was not the
only person involved in the representation to indicate the representation occurred.
At the same time Means was publicly stating he represented Dabell.
Dabel indicated on a phone call with Valo that Means
was both Dabell's and Valo's attorney. In light of this evidence,
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the District Court properly found that Means concurrently represented the
codefendants in those cases within the timeframe of the alleged conspiracy.
By the way, it just hit me when Mark Means
set in court that he did not represent Chad and
Rob Wood's face, he just kind of like made this
funny expression and cocked his head, like, what I need
(10:12):
to find that and post that for you guys. Maybe
on the next episode. Just popped him ahead. Moving on,
the factual finding supported by the record leads to the
inescapable conclusion that a conflict or serious potential or conflict existed.
Under the Idaho Rules of Professional Conduct, Means had a
conflict that at the very least had to be waived
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by Valo and da Bell because of the significant risk
that his representation of Valo would be limited by his
prior representation of da Bell. As the District Court explained
in the context of this case, because Davel and Valo
are named co conspirators, necessarily they have interests adverse to
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one another. The District Court's conclusion is supported by the
same rationale articulated by other courts who have found a
conflict in similar situations. For example, if day Bell decided
to testify a decision over which Means had no control,
Means may either pull punches on cross examination or benefit
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from the knowledge he obtained from his former representation of Daybell.
Means divided loyalties may also interfere with any plea negotiations,
and there is always a risk that Means would utilize
intentionally or inadvertently information protected by his previous representation of
day Bell. Moreover, as the District Court explained, this case
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was in its infancy at the time it disqualified, Means
Ballot had not yet been arraigned. Neither Means Ballot, who
was at the time incompetent day Bell, nor prior could
accurately predict at the time how the defense strategy would
play out for either the trial or the sentencing. This
significantly increased the risk that a conflict would occur, given
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the likelihood that Ballot or day Bell could turn on
the other, either to attempt to avoid a guilty verdict
or the death penalty. Ballot argues the District Court aired
because the record does not contain concrete evidence of an
actual conflict, such as specific information means learned when you
represent a day Bell that would affect his representation of Valo.
(12:25):
Her demand for concrete answers in the Murcier free trial
context would place an impossible burden on district courts and
runs contrary to the US Supreme Court's decision in Wheat,
the very nature of trying to predict how potential conflicts
will play out necessarily includes some amount of speculation. Indeed,
(12:45):
the primary reason the Court affirmed the disqualification of Defense
Council in Wheat was that the government intended to call
Defense Council's former client as a witness and might readily
have tied certain deliveries of marijuana by the fore client
to the defendant. Neither of those eventualities could have been
known by the district court when viewing the situation as
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it did before trial. Yet the Supreme Court affirmed the
district court's instinct and judgment based on experience in making
its decision, even though other district courts might have reached
differing or opposite conclusions with equal justification, and it says
see also US versus Sotello rejecting argument that District Court's
(13:29):
disqualification decision was unsupported and dubious speculation as to a conflict,
because the evaluation of the facts and circumstances of each
case must be left primarily to the informed judgment of
the trial court. They cite Us versus Sanders. Thus, although
conflicted counsel may think he learned a nothing that would
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be useful in cross examining his prior client, it may
be next to impossible to predict with certainty that such
is the case. Here, the district Court had a capital
case that was in its infancy, making the likelihood and
dimensions of nascent conflicts of interest notoriously hard to predict.
But the court had in front of its sufficient facts
(14:12):
to reasonably conclude an actual conflict or serious potential for
a conflict existed. Means had concurrently represented two co conspirators
on the issue of and during the timeframe of the
alleged conspiracy to commit multiple murders. He continued to represent
one of the co conspirators and planned to do so
through trial. The co conspirator, who was his former client,
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had eluded he had shared confidential information with mister Means
that the former client and co conspirator believed would be
covered by attorney client privilege, and both co conspirators were
scheduled for a joint trial which would invite all the
conflict issues explained above. The District Court acted well within
the substantial latitude the US Supreme Court has given it
(14:59):
when it decided in an actual conflict or a serious
potential conflict existed that would require at the very least
a waiver of the conflict from Valo number two. Valo
could not waive the conflict because she was incompetent. The
District Court's finding of a conflict or serious potential of
a conflict was sufficient in this case to disqualify Means
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without deciding whether the conflict could be waived, because Valo
was in no position to weigh the conflict. To be valid,
a waiver of the right to counsel must have been
affected knowingly, voluntarily, and intelligently. They cite state versus lovelace.
Just as with the relinquishment of other important constitutional rights,
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waivers of conflict free counsel must be knowing, intelligent acts
done with sufficient awareness of the relevant circumstances and likely consequences,
and courts must accordingly indulge every reasonable presumption against the
waiver of the unamp haired assistance of counsel. They cite
Douglas versus us. There is no controversy here. There appears
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to be unanimous federal Circuit court consensus that a criminal
defendants waiver of the sixth Amendment right to conflict free
counsel must be knowing, voluntary, and intelligent. They cite State
versus Duffy, and that standard requires something more than mere competency.
They cite Go Dinez versus Moran. A criminal defendant may
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not waive his right to counsel unless he does so
competently and intelligently Us versus Stites, explaining even a competent
person may not have the mental ability to waive a
constitutional right. At the time the district Court disqualified Means
as Valo's attorney, Valot was not competent to stand trial.
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According to Idaho law, if Valo lacked the capacity to
understand the proceedings against her or to assist in her
own defense, she could not possibly waigh a fundamental constitutional
right knowingly, voluntarily, and intelligently. Valot argues any conflict was
mitigated because she previously signed a waiver prior to being
(17:11):
declared and competent, but the waiver erroneously espoused, means flawed
and doubly rejected theory that he had provided only limited
representation to Dabel. A waiver that misstates the nature of
the conflict is no waiver at all. They signed a case.
The waiver document stated that there was no conflict of interest,
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so it can hardly be read as waving one. Given
the erroneous description of the conflict in the waiver itself,
Valo's signing of the waiver does not constitute a knowing, intelligent,
and voluntary waiver of the actual conflict at issue. Moreover,
a conflict waiver side prior to the issuance of an
indictment is not valid. They signed a case that says
(17:55):
the document was signed before the indictment was issued and
a few years before trial, so it could not have
taken into account the actual scope of the case as
it proceeded. Valo signed the waiver she cites on March
thirty first, twenty twenty, more than one year prior to
the Grand jury's indictment. At the time she signed the waiver,
she had no knowledge that she would be charged with
(18:17):
murder in a death eligible case, factors any reasonable person
would consider in deciding whether to waive a fundamental constitutional right. Thus,
Valo had not signed a legally valid waiver at the
time of the District Court's decision, and for incompetence to
proceed to trial meant she could not sign one. Valo
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also suggests the district Court should have waited until Valo's
competency was restored to decide the disqualification issue so she
could decide whether to sign a waiver. However, as the
District Court explained, it could not wait to decide the
disqualification issue and properly protect Valo's constitutional rights because Means
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continued to actively represent Valo under a conflict of interest
while she was incompetent, including by engaging in suspect ethical
behavior by publicly filing apparently privileged information Means obtained from
Valo under the umbrella of the privilege she enjoys. Though
to be clear, the District Court left the door open
(19:23):
to Valo raising the issue again once competent, 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, this Court's duty to
protect her rights remains. Neither Valo nor her counsel took
(19:45):
the District Court up on its offer. Because the District
Court properly found a conflict or serious potential conflict existed
and Valo could not waive the conflict, the District Court
properly disqualified Means as value attorney. The next section, the
District Court properly found the conflict could not be waived.
(20:07):
Even if the District Court could have accepted Valo's March thirty, first,
twenty twenty waiver as knowing, intelligent and voluntary, the District
Court properly decided the conflict in this case could not
be waived. The District Court must be allowed substantial latitude
in refusing waivers of conflicts of interest, not only to
(20:27):
those in rare cases where an actual conflict may be
demonstrated before trial, but in the more common cases where
a potential for conflict exists, which may or may not
burgeon into actual conflict as the trial progresses. They cite Wheat,
a waiver is not always a sufficient cure when a
conflict or serious potential conflict exists, because Courts have an
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independent interest in ensuring that criminal trials are conducted within
the ethical standards of the profession and that legal proceedings
appear fair to all who observe them. Two primary goals
in deciding whether to accept the waiver of conflict free
representation are to protect the critically important candor that must
(21:13):
exist between client and attorney and to engender respect for
the court in general. They cite Us versus Moscone To
that end, the trial court may enforce the ethical rules
governing the legal profession with respect both to my attorney
communications and to conflict free representation, again, regardless of any
(21:36):
purported waiver. Even in the murkier pre trial context, courts
have readily identified the representation of multiple co conspirators as
a serious potential conflict that may justify refusing a waiver.
They cite Us versus Sotello, affirming District Court's refusal to
accept waivers from co conspirators represented by same council, because
(21:59):
District Court believed the conflict would arise, particularly in pre
trial plea negotiations. In the case of successive representation, the
probability of prejudice dramatically increases In circumstances where the attorney
represented a code defendant during the pre indictment phase of
the same proceeding. They also cite Moss versus the US.
(22:21):
This probability reaches near certainty where the attorney's former and
current clients collaborate to mount a defense. The potential for
harm is further increased where the representation of the defendant
was paid for by a codefendant. See Wood versus Georgia,
which says, Ultimately, the evaluation of the facts and circumstances
of each case under this standard must be left primarily
(22:44):
to the informed judgment of the trial court. The district
court acted within its substantial latitude when it found the
conflict or serious potential conflict could not be waived. In
addition to the issues explained above, the district court had
a let at least three additional reasons to reject any waiver. First,
the nature of the case weighed in favor of not
(23:06):
accepting a waiver, It says Sea Wheat versus Us, affirming
decision to reject waiver in part because the attorney sought
to represent multiple co conspirators in a complex drug distribution scheme.
The state charged both Valo and day Bell with a
massive conspiracy resulting in the deaths of three people, and
(23:28):
this was a family affair. The state's theory was that
Valo and Da Bell engaged in their criminal conduct and
killed their own family members, two of Valo's children and
Da Bell's wife so that Valo and Da Bell could
be together. Even the complex drug distribution scheme in Wheat
could not hold a candle to the complicated conspiracy with
(23:51):
which Valo have been charged and Valo's alleged co conspirator
have facilitated and paid for Means representation to Boot see
Wood versus Us. Courts and commentators have recognized the inherent
dangers that arrive when a criminal defendant is represented by
a lawyer hired and paid by a third party, particularly
(24:14):
when the third party is the operator of the alleged
criminal enterprise. Second, as the District Court explained, this decision
considered Means unusual behavior in the case. Means potentially made
himself a witness in the case, thereby increasing the risk
of conflicts by filing multiple pleadings in the form of
(24:35):
declarations containing factual assertions of mister Means submitted under penalty
of perjury. Yet the Idaho rules of professional conduct stress
that an attorney should avoid becoming a witness in his
client's case. The District Court was also concerned by what
appeared to be Means intentional or unintentional waiver of Valu's
(24:57):
attorney client privilege, where mister Means had submitted to the
court purportive facts from statements Balot made the mister Means
under the umbrella of the privilege she enjoys while she
has been endeemed incompetent to proceed, a second apparent violation
of Idaho's ethical rules for attorneys. The District Court's reliance
(25:18):
on this behavior to refuse to accept any waiver was
proper see Moscone. The trial court may enforce the ethical
rules governing the legal profession with respect both to client
attorney communications and to conflict free representation, again, regardless of
any purported waiver they cite us versus stites. A defendant
(25:41):
cannot complain because a well informed trial court would not
let a lawyer who had already grossly misbehaved in the
case returned to the scene of his misbehavior. Ballot downplays
the District Court's concerns by labeling Means ethically suspect behaviors
as idiosyncrasies, aiming Valo had the right to choose those idiosyncrecies,
(26:04):
But given Valo was incompetent at the time, nothing in
the record suggests Valo was aware of or chose means
behavior that had raised serious concerns with the district Court
set to preside over her capital trial. Even if she
wanted to choose means ethically suspect behaviors, Ballot did not
have the right of her counsel of choice if that
(26:26):
council could not follow the ethical rules. The district Court
had an independent interest in ensuring that Valo's case was
conducted within the ethical standards of the profession and that
her high profile legal proceedings appeared fair to all who
observed them. Third, the District Court was confronted with two
facts that made this virtually impossible task even more difficult.
(26:50):
Valot was incompetent and faced the death penalty, and it
says to see Wheat stressing the difficulty of the analysis
meant these decisions must be left primarily to the informed
judgment of the trial court. The district Court was primarily
concerned with protecting Valo's fundamental right to the effective assistance
of counsel exactly as it should have been, it says
(27:13):
to see Wheat. The essential aim of the sixth Amendment
is to guarantee an effective advocate for each criminal defendant,
rather than to ensure that a defendant will be represented
by the lawyer whom he prefers. And because Valo was
incompetent at the time, all the district court had was
means instance that Valo would want to waive any conflict
(27:35):
so that he could represent her, even though Valo was
now charged with capital offenses and the states were infinitely
higher than they have been before Valo was determined to
be incompetent, And they cite Wheat, nor is it amiss
to observe that the willingness of an attorney to obtain
such waivers from his clients may bear an inverse relation
(27:55):
to the care with which he conveys all the necessary
information to them. The district Court was in effect hamstrung
by Valo's present inability to be thoroughly examined to ascertain
whether she could knowingly, intelligently and meaningfully waive her right
to conflict free counsel. In those circumstances, the District Court
(28:16):
decided to cautiously act in favor of Valo's right to
the effective assistance of counsel by disqualifying Means and appointing
a death penalty qualified attorney as lead counsel. The Court
should affirm that decision the next section. Valo has failed
to show the District Court committed fundamental error by violating
(28:36):
her six Amendment right to the assistance of counsel introduction.
Valot's framing of this issue is both fatal and flawed.
Set on placing blame on the district Court for not
hearing her attorney's objection to his own disqualification, she tries
to turn the district Court's denial of her motion to
intervene in a separate criminal case into a constitution violation,
(29:01):
But in reaching beyond her grasp, she fails to recognize
that the only reason her attorney's objection was not heard
is that he failed to communicate the way lawyers do
by filing an objection in their client's case. The district
Court did not air much less fundamentally air by refusing
to allow Ballot to intervene in a separate criminal proceeding.
(29:24):
The next section. Standard of review alleged constitutional errors during
trial that are not followed by a contemporaneous objection must
be reviewed under the fundamental error doctrine. The next section,
the district Court did not commit fundamental error by denying
Valo's attorney's request to intervene in a separate criminal case.
(29:45):
The district Court's denial of means motion to intervene in
the dbel case did not constitute fundamental error. To prove
fundamental error, Ballot must show that any error in the
district Court's denial of means motion to intervene number Verer
one violated an unwaived constitutional right two plainly exists in
(30:06):
three was not harmless. She cannot do so. The next section.
The district Court's denial of means motion to intervene did
not violate an unwaived constitutional right. Valo has failed to
show the district Court violated her right to counsel by
denying her counsel's request to intervene in a separate criminal proceeding.
(30:26):
The sixth Amendment guarantees a criminal defendant the right to
counsel during all critical stages of the adversarial proceedings against him.
A cite estrata versus State, quoting Us versus Wade. In
determining whether a particular stage is critical, it is necessary
to analyze whether a potential substantial prejudice to defendant's rights
(30:48):
indhers in the particular confrontation, and the ability of counsel
to help avoid that prejudice. Valos claimed that the District
Court deprived her of counsel by refusing to allow Means
to argue at a hearing in the day Bell case
fails for multiple reasons, starting with the doctrine of invited error.
The doctrine of invited error applies to a stop a
(31:11):
party from asserting an error when the party's own conduct
induces the commission of the error. They cite BB versus
North Idaho Day's surgery put simply, errors consented to, acquiesced in,
or invited are not reversible. Valo's entire six Amendment claim
rest on the District Court's refusal to grant means motion
(31:33):
to intervene, which she interprets on appeal as the district
Court affirmatively stopping her counsel from being heard. But that
is not what happened. The District Court ensured both Means
and Archibald were present at the hearing. Then, when it
denied means motion to intervene, it expressly stated that it
misunderstood Means request to be for Valo to become a
(31:55):
party in day Bell's case. And they quote, it's not
a request to allow argument on an issue affecting your client,
mister Means, end quote. Despite the District Court's clear explanation
of its ruling, Means remained at the rest of the
hearing but never asked to be heard. The District Court
ensured Means was present at the hearing, it did not
(32:16):
also have an obligation to open Means his mouth. In
a fitnote, it says the district Court did make clear
at the end of the hearing that it did not
allow for Means his testimony, but noted he was not
called as a witness anyway. This changes nothing. Valot's argument
on appeal is not that the District Court should have
allowed her attorney to testify as a witness at the hearing.
(32:39):
Means also failed to file his objection in the proper
form which was his client's case. Means failure to seek
an opportunity to be heard either by filing his objection
in his client's case or speaking up at a hearing
at which he was present, was at the very least
acquiescence in the error Valo now erroneously claims on appeal.
(33:02):
Even setting aside invited error, the procedural history of Valo's
case confirmed she was not denied the right to counsel
with respect to the state's motion to disqualify Means. The
state filed its motion to disqualify Means in Valo's case
on July twenty seventh, twenty twenty one. The District Court
entered its order in Valo's case disqualifying Means on December
(33:25):
twenty eighth, twenty twenty one. In the five months between
the state filing its motion and the district Court granting
the motion, Means did not file a substantive response or
otherwise object in Valo's case to the state's motion. This
even though Means filed at least nine other filings in
the same period substantive motions and responses, such as emotion
(33:48):
to dismiss the indictment and an objection to proceedings occurring
in Dabel's case. Well, whatever reason, Means chose not to
file a response or otherwise object to the state's motion
in the appropriate forum that is not the deprivation of
counsel without acknowledging means failure to file anything in the
proper form like his client's case. Regarding the State's motion,
(34:11):
Valo now argues the district court somehow violated her six
Amendment right by refusing to allow her counsel to argue
emotion in a different criminal case. She cites no authority
or the proposition that a criminal defendant has a six
Amendment right to have counsel argue in a co conspirator's
separate criminal case, and in all the examples she gives
(34:33):
the court to identifying critical stages the courts were obviously
referring to stages in the defendant's own criminal proceedings, giving
as examples post indictment, police lineups, arraignments, preliminary hearings, and sentencing.
Valot has the right to counsel in the criminal proceedings
against her, She does not have the right to counsel
(34:54):
in the criminal proceedings against someone else, And they cite
estrata the six Minis guarantees a criminal defendant the right
to counsel during all critical stages of the adversarial proceedings
against him. Even though Valo did not have a constitutional
right to have counsel heard at the dayball hearings, the
District Court was careful to include both Means an Archibald
(35:17):
in the hearings. In the Dabel case. The district Court
did not allow Means to formally intervene, but it allowed
both Means an Archibald to be present for the sealed
hearing in the Dabel case because it recognized the motion
to disqualify really does pertain to both cases, as it's
been filed in both cases, and it's appropriate for determinations
(35:38):
to be made in each of the cases, as well
as having all counsel appear as they are here today.
The state also explained that it did intend for this
motion to be filed in both cases because it's an
applicable motion to both cases. The state even went so
far as to explain with Means present, that the Value
(35:58):
case was the more appropriate plays for mister Means to
raise his argument. Means heard all of this and still
chose not to file a response to the state's motion
in the Valo case, despite affirmatively arguing we have two
different cases. Balo concedes the hearings were heard under a
different case number, but argues the case number does not
(36:19):
matter because the topic of the hearing was whether to
disqualify her counsel. But the parties and the District Court
were careful in the hearing to focus on Dabell's rights
as opposed to Valo's rights. As Valo concedes elsewhere in
her brief, the State steered the direction of the hearing,
which occurred on August thirtieth and was continued to September eighth,
(36:40):
twenty twenty one, to focus on Chad's rights to conflict
free counsel rather than Lori's right to counsel of her choice.
The District Court's order disqualifying means was entered in Valo's
case focused solely on Valo's rights. Valot's concession with respect
the content of the hearing at least implicitly acknowledges that
(37:02):
Dabell also had rights that needed to be protected because
of means conflict. Unsurprisingly, the arguments over Dabell's rights happened
in Dabell's case and the arguments over Valo's rights happened
in the Valo's case. In writing in a footnote, it
says Valo has not raised on appeal the argument that
the district Court should have held a hearing in the
(37:23):
Valo case. In any event, the district Court did not
need to hold a hearing because Means never objected to
the state's motion, and it says see us versus Mays,
affirming disqualification of defense counsel even though district Court did
not hold a hearing, because although defense counsel said he
would file a brief in opposition to the motion, he
(37:47):
never did. Means had the opportunity to participate in arguments
over Valo's rights by filing a response to the state's
motion in the appropriate forum. He just chose not to
do so. Vaalo has thus failed to prove or constitutional
right to counsel was violated. So we're going to end
it there. They keep going about this for a little while,
(38:08):
and we are on page thirty of sixty eight, so
it's still a ways to go. And that is it
for today. I hope you guys have a good rest
of your evening. See you soon.
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