Boyce opted to continue Chad Daybell’s trial after his attorney John Prior complained he didn’t have enough time to review new evidence.

Vallow-Daybell and her attorneys Jim Archibald and John Thomas as well as prosecutors Rob Wood and Lindsey Blake met before Seventh District Judge Steven Boyce on Wednesday at the Fremont County Courthouse to discuss the “voluminous” amount of new evidence presented to the defense recently.

Much of the hearing revolved around when discovery was made available to the defense and when the prosecutors provided it. Concerns were raised that some of the discovery was provided to the defense when attorney Mark Means represented Vallow-Daybell. Boyce removed Means from the case in Dec. 2021 citing a conflict of interest. Shortly afterward, Boyce appointed Archibald and Thomas to Vallow-Daybell’s case.

The new Vallow-Daybell evidence recently provided includes a series of jailhouse phone calls and visits recorded involving Chad Daybell while he’s been held in the Fremont County Jail.

“I did receive 3,000 (recorded) phone calls of the co-defendant’s,” said Thomas. “We received that on Monday afternoon. We also received on a jump drive five (recorded) in-custody visits with Chad Daybell.”

Blake said the jailhouse phone calls and in-person visit information had been turned over to the defense. She warned there will continue to be phone calls made to Chad Daybell while in jail.

“As far as compliance goes, the actual recordings will be turned over,” she said. “They were indicated to be available in a prior discovery response. They were available for inspection and listening.”

“That is just patently false,” Thomas said. “We assumed (there were) no phone calls.”

Vallow-Daybell has repeatedly wondered what her husband has thought about her case, Thomas said.

“Our client asked, ‘What is Chad thinking?’ ‘What is Chad saying?’ (We said) ‘We don’t know’,” Thomas said. “The state says, ‘We’ve substantially complied.’ I’m embarrassed they would make that argument.”

With 3,000 phone calls to analyze, the defense doesn’t have time to review them all, Thomas said.

“Let’s put our big boy pants on (and say) ‘Yeah, we screwed up. Let’s fix it’,” he said. “The way to fix it is to dismiss the case and move on, and the state does whatever it’s going to do.”

Blake acknowledged that the evidence in question may have been turned over to Means earlier in the case.

“I do recognize when different counsel would have been on the case,” Blake said.

“It’s not our burden to go find things,” Thomas said. “You need to disclose it to me. The court knows that.”

The prosecution and defense also debated the constitutionality of the death penalty in Vallow-Daybell’s case.

“The death penalty scheme isn’t sufficiently narrowed as it applies to all death penalty cases as it applies to Miss Daybell,” Archibald said. “I set out on our motion reasons why: media saturation, multiple discovery violations by the government, the government’s knowledge of my client’s mental health status, and just (the) practical standpoint of Idaho trying to kill people on death row and hasn’t been able to do it.”

Archibald noted that the Idaho Department of Corrections has failed to find the drugs necessary to execute anyone.

“It’s debated in Idaho Legislature,” Archibald said. “‘(We) can’t kill with drugs, let’s kill with a firing squad. (It’s) pretty appalling the efforts of our politicians to try and kill people and asking a jury to do this.”

Archibald implored Boyce not to force an Ada County jury to deal with the death penalty in Vallow-Daybell’s case.

“Even if the government is successful in getting a death verdict, I don’t think any of us think she’s actually going to get the death penalty carried out on her,” he said. “Why go through this expensive process? It carries years and years and decades of appeals. Once the state appeals are exhausted, it starts over in federal court.”

According to the Idaho Department of Corrections there are eight inmates facing the death penalty in the Idaho State Penitentiary. Archibald noted Gerald Pizzuto, sentenced in 1986, and Robin Row, convicted in 1993, have recently received stays of execution from federal judges.

Archibald reported that in addition to the 3,000 jailhouse phone calls, the defense has 5,000 documents to review. The defense’s mitigation specialist has said she doesn’t have enough time to review the new discovery making a death penalty sentence “prejudicial.”

“This is going to be a disaster on appeal because right now, me and Mr. Thomas are telling the courts, ‘There are not enough hours between now and the trial to review evidence,’” Archibald said.

Appellate lawyers would have a field day reviewing Vallow-Daybell’s case should she be convicted, Archibald said.

“They are going to chew us up where we have not reviewed everything, and that is not our fault,” Archibald said. “The government had this burden to produce it. That goes to the issue of the death penalty. It goes to the issue of excluding everything that’s been disclosed lately.”

Blake said that asking to remove the death penalty punishment would be inappropriate as it rests on future events.

“Due to the fact Miss Vallow has not been convicted at this juncture, any argument whether the death penalty is appropriate is premature,” Blake said. “The media saturation is not grounds to dismiss. Just because there is media coverage, bias to the jurors has not occurred at this point.”

Boyce then questioned whether the court should wait until Vallow-Daybell is convicted before deciding on the death penalty for her.

“Is this a capital case or is it going to be a case where I find sanction appropriate at late disclosure?” he asked. “That it would be manifestly unfair and prejudicial to the defense to make them go forward and trying to prepare when they don’t have the time?”

Blake pointed out the state’s position was that the deadline to provide discovery was Feb. 27.

“If that is the case, the state complied with the discovery deadline,” she said. “While the defense continues to reference the discovery dump, the same content was provided in discovery previously. This was not all brand-new discovery as is essentially being represented by the defense.”

Boyce asked Blake what options were available if he found Vallow-Daybell’s case deserved to have the death penalty dismissed. Blake suggested the court decide what evidence should be excluded. She also proposed the trial be postponed.

“Vallow asserted her right to speedy trial, (and that) could be weighed out by representations by defense council,” she said.

Boyce then asked if there was time to determine what evidence may be excluded. Blake said the state has flagged evidence for the defense that may be “exculpatory,” evidence finding the defendant innocent, or “inculpatory,” discovery finding the defendant guilty.

“I think the court would have time to filter through that,” she said.

Prosecutor Rob Wood said the state has never withheld evidence to the defense.

“The state has always endeavored to disclose what we’ve received,” he said.

Archibald countered that his otherwise good 20-year relationship with the prosecutor’s office has been damaged by what he called “stonewalling.”

“I don’t know if it’s the FBI in charge, if it’s the Fremont County Prosecutor’s office in charge or what,” he said. “I’ve been treated differently than I have been for the past 20 years. The only thing I can conclude is that it’s been gamesmanship. Not one, not two, but six prosecutors. Somehow the lines got crossed. They’re dragging their feet.”

Wood countered that the prosecution has turned over notes and interviews by the FBI and said 23 of those were turned over on Aug. 9, 2021.

“They’ve had these reports of witnesses since that time,” Wood said. “Those handwritten notes of the (FBI) agent — the FBI doesn’t normally turn those over — I asked them to turn them over, and they did. When you’re arguing prejudice, this is not a situation where the defense did not know who these witnesses were or what they said.”

Boyce said he would spend the next few days sifting through the information received during the hearing.

“The parties need to know sooner or later — right on the eve of the trial — how these rulings will turn out.”

Boyce planned to meet again with the various parties at 9:30 a.m. Wednesday at the Fremont County Courthouse.