Madison County Prosecuting Attorney Rob Wood | Pool file photo
REXBURG — The Madison County prosecuting attorney objects to Lori Vallow Daybell’s request for a cell phone and says she should be treated no differently from other inmates in the Madison County Jail.
Daybell’s attorney, Mark Means, filed a motion Jan. 19 regarding attorney-client privilege communication. He asked that his client be given a cell phone so they can communicate with each other. He also requested that jail video cameras be turned off whenever the two meet face to face.
Daybell has been incarcerated in Madison County since March 2020. She is charged with two felonies related to the concealment, alteration and destruction of evidence regarding two of her children, 7-year-old Joshua “JJ” Vallow and 16-year-old Tylee Ryan. Authorities found Tylee and JJ’s bodies buried on the property of her husband, Chad Daybell, in June.
Means argued that he and Lori Daybell could not meet in an attorney-client room at the jail from March until June 2020. Jail facilities across the state implemented restrictions on visitors due to the COVID-19 pandemic.
Mark Means, Lori Vallow Daybell’s attorney, argued he could not meet with his client in an attorney-client privilege room and had to communicate with her through plexiglass using a metal corded phone. | Court exhibit
“The only option (was) to converse with (the) defendant through the ‘public’ room and metal corded telephone … with two video cameras videotaping these privilege meetings,” Means wrote.
He aid when he wanted to speak with his client on the phone, she had to be handcuffed to a desk with a deputy nearby or use the Telmate system, which Means said was a recorded line.
Means asked Judge Steven Boyce to grant him uninterrupted, face-to-face meeting time with Daybell as needed. He also requested a cell phone for Daybell that she can only use to communicate with Means, and he asked the jail “be ordered to shut off video recordings (and) other recording device(s) during privilege communication.”
In his response filed Friday, Prosecuting Attorney Rob Wood said he has no objection to Means meeting with Daybell in person as long as proper COVID-19 precautions are followed.
Wood said he does have an issue with security cameras being turned off but agreed no audio recordings should be made by the jail while Means visits with Daybell.
“The state has been informed by the jail that the security camera system does not record audio,” Wood wrote. “The state is further aware that a virtual box can be drawn around the defendant and her counsel so that security personnel monitoring security cameras cannot see the defendant and her attorney and any items on the table in front of them while they are meeting.”
Wood noted, however, that Idaho law considers cell phones as contraband items for inmates and said issues Means raised about Telmate recording Daybell’s calls were already resolved during a bond hearing in May 2020. In an affidavit filed last March, Madison County Sheriff Lt. Jared Willmore confirmed two calls were accidentally recorded on March 31 and deleted. One call lasted a minute, while another lasted nearly a half-hour, Willmore said.
“(At that time) the defense provided no evidence that protected and privileged communications of the defendant and her attorney were being recorded,” Wood wrote. “The defendant has provided no new evidence that she and her legal counsel are unable to have confidential telephonic communications via Telmate.”
Wood said all jail inmates are required to use Telmate to communicate with their attorneys, and Daybell should be treated no differently.
“The defendant has provided no evidence or information justifying special cell phone privileges for the defendant,” Wood wrote. “The state is aware of no other inmate that has filed a motion requesting a cell phone due to the required use of Telmate. The state is aware of no other claims by any other defendant/inmate that their right to counsel is violated by the use of Telmate.”
Wood also mentioned that Means is attempting to “relitigate facts previously decided by the court” by taking to Twitter with “false claims that the state is or has wrongfully recorded attorney/client conversations.”
When attorney client communications are or were recorded, when attorney is denied access to meet with his client for months (is the current case in Madison County, never the case in Fremont) when witnesses are coached on what they want to hear… one must ask their self…
— Mark Means Law (@MeansLaw) February 4, 2021
Finally, one must ask yourself, when the defense has to fight for the production of evidence, when list of witnesses for the state is produced a year or so after charges are filed, when attorney client communications are or were wrongfully recorded,
— Mark Means Law (@MeansLaw) February 4, 2021
A hearing on Means’ request has not been set. He and Wood are scheduled to appear in court Wednesday for a motion-to-compel-evidence hearing.