Filed: 09/23/2022 13:06:20

Seventh Judicial District, Fremont County

Abbie Mace, Clerk of the Court
By: Deputy Clerk - Singleton, Laura

IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE

STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT

STATE 0F IDAHO Case No. CR22-21-1624

Plaintiff,
v. MEMORANDUM DECISION and
ORDER PROHIBITING VIDEO AND
LORI NORENE VALLOW aka LORI PHOTOGRAPHIC COVERAGE
NORENE VALLOW DAYBELL,

Defendant.

Pending before the Court is the Defendant’s MOTION To CLARIFY MEDIA IN THE

COURTROOM, filed August 30, 2022, requesting cameras to be banned from future proceedings.‘

On September 8, 2022, several non-party media entities (“Media”) sought and obtained permission

fiom the Court to file as Interested Persons a RESPONSE to Defendant’s MOTION, arguing the Media

had at no time failed to comply with Orders of this Court governing media coverage of in-court

proceedings? On September 12, 2022, the State filed a CONCURRENCE with the Defendant’s

MOTION? On September 15, 2022, the Court heard argument on the issue at a hearing. Having

fully reviewed the record, relevant rules, and case law, and upon the request of Counsel, this Court

enters the following Order.

I. Background

A sacrosanct protection of the penal system in the United States of America is the insistence
to those accused of even the most severe crimes as set forth in
of? fair trial by an impartial jury
l

1
MOT. To CLARIFY MEDIA IN THE COURTROOM. Aug. 30, 2022.
2
INTERESTED PERSONS’ RESPONSE r0 DEF.’s Mor. To CLARIFY MEDIA IN THE COURTROOM. Sept. 8, 2022.
3
STATES RESPONSE AND CONCURRENCE To DEF.’s Mor. To CLAREY. Sept. 12, 2022.

Order - l
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th; Sixth Amendment of the United States Constitution:

1

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with
the
witnesses against him; to have compulsory process for
obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defense.

U.S. Const. amend. V1.4

‘
The Court is presented today with a joint request from the Defendant and the State to
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disallow certain media activity in future courtroom

proceedings in this case. Countering that

request are several media entities who have argued that the First Amendment affords the media

certain rights and that those rights are best achieved by

disseminating audio and video coverage of

court proceedings.

To be clear, no party has argued that the Court should fully prescribe media coverage of

this case by issuing a prior restraint on speech, such as a gag order on media
reporting. Rather, the

reqitest of the Defendant and the State, in its concurrence, is that the Court clarify or reconsider

the scope of the media’s activity authorized by the Court’s ORDER GOVERNING COURTROOM

CONDUCT issued in the case April 14, 2022.5

The instant case has garnered significant media attention worldwide. The Court has

previously considered the “deluge of publicity” (Sheppard v. Maxwell, 384 U.S. 333, 357 (1966));

and upon determining that Idaho Criminal Rule 21(a) and Idaho Code Section 19-1801 applied,

the Court ordered a transfer of trial fiom Fremont County, Idaho, to the most populous county in

the State, Ada County, in order to mitigate the efi'ects of pretrial publicity and its detrimental

4
See also Idaho State Constitution. Art. I §§ 7, 13.
5
ORDER GOVERNING COURTROOM CONDUCT. April 14, 2022.

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impact on selecting an impartial jury.6

7

II. Standard of Adjudication

Idaho Court Administrative Rule 45 (“I.C.A.R. 45”) sets forth the
procedures and
1

considerations for trial courts to evaluate audio and visual coverage of public
proceedings in Idaho
courts:

I.C.A.R. 45(a). [...] The presiding judge maintains the right to limit audio/visual
coverage of any public hearing when the interests of the administration of justice
i

requires. Authorization may be revoked at any time, without prior notice, when in
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the discretion of the court it appears that audio/visual coverage is interfering in any
i

way with the proper administration of justice.

I.C.A.R. 45(b) The presiding judge may, at his or her discretion, limit, restrict, or
prohibit audio/visual coverage at any proceeding. Any decision regarding
audio/visual coverage is not subject to appellate review.

I.C.A.R. 45.

III. Discussion

First, the Court affirms that there is no indication that any orders relating to the conduct of

the media during hearings in this case, or the companion case, Fremont County Case No. CR22—

21-1623, State of Idaho vs. Chad Guy Daybell, have been violated. The Court has likewise

witnessed no misconduct on any part of the media during hearings in these cases. The presence

of media during the hearings has in no way interrupted those proceedings, and attending media

have been respectful and professional. Notwithstanding, the Court determines that the concerns

raised in the Defendant’s MOTION To CLARIFY MEDIA IN THE COURTROOM and the State’s

CONCURRENCE are well founded.

5
See Fremont County Case No. CR22-21-1623. MEM. DEC. 0N DEF.’S MOT. To CHANGE VENUE. pp 8—9. Oct. 8,
2021.Those findings are fully incorporated into this decision.
7
“The trial judge has a major responsibility . . . the measures a judge takes or fails to take to mitigate the effects of
pretrial publicity may well determine whether the defendant receives a trial consistent With the requirements of due
process.” Nebraska Press Ass ’n v. Stuart, 427 U.S. 539, 555 (1976).

Order - 3
 The Court has carefully considered the arguments presented at the September 15, 2022

hearing on this issue, including the arguments of Mr. Wright, counsel for numerous media clients.

Subsequent to the hearing, and upon request of counsel, the Court also reviewed the video footage

of an August l6, 2022 hearing, as cited in the State’s CONCURRENCE.3

The Court concurs with Defendant’s argument that the footage of the August 16‘“ hearing

demonstrates an inordinate focus on the Defendant, zooming onto her face throughout the vast

majority of the hearing, regardless of who was speaking or what was happening. This Court has

pretriously permitted cameras in the courtroom during this case, allowing both photography and

video transmission, “[b]ut when the case is a ‘sensational’ one tensions develop between the right

of the accused to trial by an impartial jury and the rights guaranteed others by the First

Amendment.” Nebraska Press Ass ’n v. Stuart, 427 U.S. 539, 551. Further, “[t]he capacity of the

jury eventually impaneled to decide the case fairly is influenced by the tone and extent of the

publicity.” Id. at 554-5. Such is precisely the conflict here.

While the right to public access must be protected, the scope of the coverage cannot

supersede the rights of all parties to the fair administration of justice in this case. Courts have

historically struggled with the issue of permitting cameras in the courtroom. Going back decades,

cases have been overturned by the U.S. Supreme Court because of issues relating to extensive

media coverage? In this day and age, the problem is further exacerbated, where instantaneous

access to coverage provided by traditional media outlets is quickly rebroadcast, repackaged, and

reimagined. The Court has previously been made aware and continues to be informed that

documentaries, dramatizations and fictionalized movies focusing on the Defendants and

continue to be disseminated to the public.

allegations in this case have already been produced and

Srisra’s CONCURRENCE p 2 n l
3
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Se‘e e. g. Estest v. Texas 381 U.S. 532 (1965); Sheppard V. Maxwell, 384 U.S. 333 (1966)

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Ord‘fr
 All of this continues to occur in a case which has not yet been tried. 1°

The Court is very concerned that continued visual coverage of this case will
impede the

ability of the parties to select fair and unbiased jurors. While the Court has refrained from delving

into viewing the coverage in this case, the coverage is so extensive the Court has had to
proactively
avoid viewing it, as it is routinely part of local, and at times, national news. The affidavit submitted

by Mr. Wright confirms this, in that just one of Mr. Wright’s 30+ clients distributes footage fiom

hearings in this case “to dozens of media organizations and millions of viewers. . 3’“

In fully considering this decision, the Court notes that the media have raised a
compelling

issue: public access for the citizens of Fremont and Madison Counties. The excessive
coverage

of this case has already resulted in the Court’s determination that trial will be held in Ada County,

Idaho, as the Court has previously concluded that it would be unlikely to obtain an unbiased jury

pool within the home county of this case, Fremont County. It is unfortunate that local citizens,

inclilding citizens of both Fremont and Madison Counties, who bear the cost of this case and should

be given local access to this trial, should they wish to attend, now carmot do so without

inconvenience.

Upon full consideration of the arguments of the State and Defense, notably concurring with

each other, the Court is persuaded that further visual coverage of this case will run afoul of the

Court’s considerations as set forth plainly in I.C.A.R. 45. ‘2 That rule provides this Court discretion

to make this determination. I.C.A.R. 45(a) states, in part: “Audio/visual coverage is authorized

subject to the discretion of the presiding judge.” I.C.A.R. 45(b) states, in part: “The presiding

1°
ln 1976, SCOTUS established “[tlhe speed of communication and the pervasiveness of the modern news media
have exacerbated [the tension between the First Amendment and Sixth Amendment].
” DECL. or GRACE WONG. 11 6. Sept. 8, 2022
_
‘2
Agreement between the State and Defense on any issue in a capital case is rare, further continuing to the Court the
legitimacy and level of concern counsel have raised.

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judge may, at his or her discretion, limit, restrict, or prohibit audio/visual coverage at any

proceeding.” The Court determines herein that continued visual coverage of this case poses a great

risk to the fair administration ofj ustice in this case, and Co—Defendant Chad
Daybell’s companion

case, which cases are joined for trial. Therefore, continued visual coverage will no longer be

permitted.

The Court determines that this decision applies to all future pre-trial motions and trial.

Where continued coverage of pre-trial motions will likely cause potential jurors to be biased,

disqualifying them from service, coverage during trial raises additional and equally serious

concerns. The Court will not risk the loss of seated jurors who may intentionally or inadvertently

review the very trial proceedings they are sworn to decide, where those jurors must make their

decision only upon the evidence presented at trial.” The Court will not risk the potential loss of

State or Defense witnesses who may intentionally or inadvertently become tainted by viewing the

trial proceedings before they testify, assuming their exclusion from the proceedings, as is regularly

ordered for material witnesses. The Court further is concerned that at trial the added and

unnecessary pressure witnesses and counsel will be subject to, knowing their every expression,

utterance and appearance will be captured and circulated without their control in perpetuity, is

unwarranted and will likely interfere with the fair administration ofjustice in this case. Subjecting

triallparticipants, including attorneys and witnesses, to that added pressure may unfairly influence

who may incorrectly question credibility based on the reactions to that pressure.
jurors
‘

Therefore, in the discretion of the Court, pursuant to I.C.A.R. 45(a) and (b), authorization

of all video and photographic coverage in the Courtroom in this case at all further proceedings,

‘3“The trial judge has a major responsibility . . . the measures a judge takes or fails to take to mitigate the effects of
pretrial publicity [] may well determine whether the defendant receives a trial consistent with the requirements of
due process.” Nebraska Press Ass ’n, 427 U.S. 539, 555 (1976).

Order - 6
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including trial, is revoked. Audio recording of all future proceedings will continue to be permitted,

with the Court utilizing the in-courtroom microphones operated by court personnel. Any third-

party recording will be subject to future approval, and if approved will be monitored to ensure that

microphones are located to ensure that unwarranted conversations between counsel and clients are

not recorded. Finally, in order to facilitate the attendance of the trial in Ada County by Fremont

County and Madison County citizens who wish to attend, and who have lost the ability to attend

in person without great inconvenience, the Court intends to provide enhanced access for Fremont

and Madison County residents by providing designated seating at trial in a manner to be further

determined.

IV. Conclusion
Defendant’s MOTION TO CLARIFY MEDIA IN THE COURTROOM, together with the State’s

CONCURRENCE and express requests to remove cameras from the courtroom is GRANTED.

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IT IS so ORDERED.
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Dated this 2} day of September, 2022.

‘
%%M
gteven W.
Boyée/
District Judge
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 CERTIFICATE OF SERVICE
I hereby certify that on this 3 ,3 day of September, 2022, the foregoing Order was entered and a
true and correct copy was served upon the parties listed below by mailing, with the correct postage
thereon, or by causing the same to be delivered to their courthouse boxes; by causing the same to
be hand-delivered, by facsimile, or by e-mail.

V.
Parties Served:

Lindsey Blake
gprosecutor(dlco.l'remont.id.us~

Robert H. Wood
mcppabcomadisonidus

Rachel Smith
[email protected]
A ttorneys for State ofIdaho

Jim Archibald
J imarchibaldZ l @gmailcom
John Thomas
[email protected]
Attorneys for Defendant

Steven Wright
steve@wright|awidaho.com
Attorney for Non-Party Media Entities Clerk ofthe District Court
Fremont County, Idaho

by AVA.)
uty Clerk

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