Vallow-Daybell case: No pictures or video coverage in court, judge orders

From KTVB-TV

FREMONT COUNTY, Idaho — Cameras won’t be allowed in future court proceedings for Lori Vallow (aka Lori Vallow Daybell), the woman who, along with her husband, Chad Daybell, faces trial in January on charges of murdering her children, Joshua “JJ” Vallow and Tylee Ryan.

Fremont County District Court Judge Steven Boyce on Friday issued an order prohibiting video and photographic coverage. Audio recording will still be allowed.

“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,” Boyce wrote in the memo accompanying his order.

Attorneys for Vallow in August filed a motion seeking to ban cameras from the courtroom, and the state concurred. More than 30 media outlets, including KTVB, joined a motion opposing such a ban, citing importance of public access to court proceedings.

Under Idaho Court Administrative Rule 45, judges reserve the right to limit audio or video coverage of any public hearing “when the interests of the administration of justice requires.”

Boyce makes it clear that the media in the courtroom up until now has not broken any rules or behaved badly, as was claimed by Vallow’s attorneys.

“First, the Court affirms that there is no indication that any orders relating to the conduct of the media during hearings in this case 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,” the judge wrote.

Boyce’s ruling comes just over a week after he heard arguments on the motion. (Video of full hearing posted here)

“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,” Boyce wrote. “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, including 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 cannot do so without inconvenience.”

The trial is scheduled to begin Jan. 9, 2023, in Ada County. To accommodate residents of Fremont and Madison counties who wish to view the trial in person, Boyce wrote that the court will provide designated seating for them “in a manner to be further determined.”

The memorandum and order are linked here.

From KTVB-TV

Judge considers barring cameras from Idaho mom’s murder case

From the Associated Press

By Rebecca Boone

BOISE, Idaho (AP) — A judge told attorneys in a high-profile triple murder case that he’s worried broad news coverage could make it harder to seat a jury when the trial begins months from now.

“You’ve named off 35 major media organizations, which tells me that there is huge interest in putting all the information out to as many people as possible,” 7th District Judge Steven Boyce said Thursday. He told attorneys he would decide soon whether to change how — or if — cameras will be allowed in the courtroom during the criminal case of Lori Vallow Daybell and her new husband, Chad Daybell.

The couple is accused of conspiring together to kill Lori Vallow Daybell’s two children, 7-year-old Joshua “JJ” Vallow and 17-year-old Tylee Ryan, as well as Chad Daybell’s late wife Tammy Daybell. The strange details of the case — including prosecutors’ allegations that the pair used unusual doomsday-focused religious beliefs as the justification for the killings — have garnered international attention.

Late last month, attorneys for Vallow Daybell asked the judge to ban cameras from the courtroom, contending one news organization abused the privilege to videotape the proceedings when it repeatedly zoomed in on Vallow Daybell’s face during an Aug. 16 hearing. The attorneys, Jim Archibald and John Thomas, claimed the cameras and microphones could potentially be used to overhear private conversations or to view private notes on the defense table.

A coalition of news organizations led by EastIdahoNews.com last week asked the court to reject that request, noting the coverage of the hearing was done well within the bounds of the judge’s previous order allowing cameras, and that no notes or private conversations were ever captured. The Associated Press was among the nearly three dozen news organizations that joined in the request.

During Thursday morning’s hearing, the attorney for the news organizations said barring cameras from the courtroom would not stop widespread public interest. It would only prevent people from seeing the most accurate depiction of the court proceedings, Steve Wright said.

“The reality is, pretrial publicity is a result of what the state has charged and the circumstances in which they base that,” Wright said.

The video cameras and microphones were set up in places that were preapproved by court personnel, Wright told the judge, and the news organization that served as the pool videographer had a technical staffer that monitored the broadcast closely to ensure that nothing inappropriate was captured.

“These are professionals who are among the best at what they do in difficult situations like this,” Wright said.

Wright noted that the judge has the ability to decide where and how any cameras and microphones are placed in the courtroom if he chooses to do so. Barring cameras entirely would be a “vast overreaction,” he said.

“That is like taking a sledgehammer to an issue where a scalpel is appropriate,” he said.

Vallow Daybell’s attorney, Archibald, told the judge the media coverage was “salacious” and pointed out that the judge had already decided to move the trial to a different county “because of the media’s incessant, nonstop exposure of this case.”

During the last hearing, a video camera showed a close-up of Vallow Daybell’s face for about 30 minutes, Archibald told the judge.

“She’s been in custody now for two and a half years,” Archibald said. “What’s the point — to mock her? To make fun of her? To humiliate her? Does it add any value to the public other than prejudice jurors?”

If the judge does not want to ban cameras entirely, they could be restricted to the jury box or the front row of the courtroom gallery, Archibald said.

“This case is tough enough without sensationalization … we certainly don’t need any more drama in this case,” he said.

The judge said he would consider the matter and issue a ruling on a later date.

Idaho law enforcement officers started investigating the pair in November 2019 after extended family members reported the children were missing. Their bodies were found buried later on Chad Daybell’s property in rural Idaho. Chad and Lori Vallow Daybell had married just two weeks after his previous wife, Tammy Daybell, died unexpectedly.

The couple was eventually charged with murder, conspiracy and grand theft in connection with the deaths of the children and Daybell’s late wife. They have pleaded not guilty and could face the death penalty if convicted.

Prosecutors say the couple promoted unusual religious beliefs to further the alleged murder conspiracies. Lori Vallow Daybell’s former husband, who died while the two were estranged, said in divorce documents that Vallow Daybell believed she was a god-like figure responsible for ushering in the apocalyptical end times. Chad Daybell wrote doomsday-focused fiction books and recorded podcasts about preparing for the apocalypse.

Friends of the couple told law enforcement investigators the pair believed people could be taken over by dark spirits, and that Vallow Daybell referred to her children as “zombies,” which was a term they used to describe those who were possessed.

Vallow Daybell is also charged with conspiracy to commit murder in Arizona in connection with the death of her previous husband. Charles Vallow was shot and killed by Lori Daybell’s brother, Alex Cox, who said it was self-defense. Cox later died of what police said was natural causes.

The Arizona legal proceedings are on hold while the Idaho case is underway and Vallow Daybell has not been scheduled to make a plea in the Arizona case.

From the Associated Press

Custer County prosecutor determines no open meeting law violation by commissioners

From the Idaho Statesman

BY NICOLE BLANCHARD

An Idaho prosecutor determined county commissioners did not violate the state’s opening meeting law in May when they co-hosted a land use workshop with American Stewards of Liberty, a nonprofit known for anti-public lands statements.

Custer County prosecutor Justin Oleson began investigating the May 5 meeting last month after Washington, D.C.,-based Accountable.US urged him to look into a potential open meeting law violation. The watchdog group said county commissioners conducted public business — discussing land use plans and national forest revision plans — but made it “practically impossible for ordinary Idahoans to attend” by charging $125 per person.

Idaho’s open meeting law requires that any meeting of a governing board for a public agency be open to the public unless the board meets requirements for an executive session.

On June 30, Oleson sent a letter to Accountable.US telling the organization he had finished his investigation and concluded no open meeting law violation occurred. Oleson said the workshop did not count as a meeting and added that the existence of scholarships for the entry fee — which he said went unused — proved there was no obstacle to the public attending.

Oleson said a Custer County commissioner attended an American Stewards of Liberty workshop at a meeting of the Western Intermountain Region of the National Association of County Officials. The commissioner felt a similar workshop would be helpful for public officials in Custer County, Oleson said.

Oleson said all three Custer County commissioners attended the workshop but did not sit together or discuss matters of public interest.

“It appears that this training was no different than numerous other trainings that county officials attend to increase their knowledge and abilities to do their job for the citizens of their respective counties,” Oleson wrote.

According to Boise State Public Radio reporting, the county paid American Stewards of Liberty $6,000 to $7,000 for the workshop. The nonprofit’s co-founder Margaret Byfield, who attended The College of Idaho and is the daughter of Nevada ranchers who were part of the original Sagebrush Rebellion, spoke at the Custer County workshop. The Sagebrush Rebellion was a movement in the 1970s and ‘80s in which western ranchers sought to remove public land from federal control.

In 2015, High Country News reported that Custer County had paid American Stewards of Liberty at least $23,000 by August of 2014.

In response to Oleson’s letter, Accountable.US officials said they were unhappy with the prosecutor’s decision.

“The prosecutor’s decision to condone a public meeting with a price tag is disappointing,” said Jordan Schreiber, Accountable.US’s energy and environment director, in a statement provided to the Idaho Statesman. “The law is clear here — whenever a quorum of commissioners are present for a meeting where the public’s business is discussed, it must be open to the public they serve.

“American Stewards of Liberty has a long track record of stuffing its pockets with tax dollars from counties that can least afford it,” Schreiber added. “Unfortunately for taxpayers, the fringe conspiracies they advance and the lies they tell about land conservation are never worth the price of admission.”

From the Idaho Statesman

Idaho GOP need only look back to know public debate is an American necessity that moves us forward

Editorial from the Idaho Capital Sun

Republican Party candidates should make themselves available to voters through live, unfiltered and televised discourse, writes editor-in-chief Christina Lords.

Abraham Lincoln was at a clear disadvantage.

Hardly any name recognition. Meager, worn clothes bereft of the wealth and class of a full-time politician. No major legislative policy wins to speak of, even as a former one-term Congressman.

But Lincoln was a student of history, of deep, evolving thought on the issues of his time, of storytelling, and he knew, as an Illinois candidate vying for a U.S. Senate seat in 1858, debating his opponent Stephen Douglas was important. He did so seven times between August and October of that year.

In a country brimming with the most discontent and disagreement since its revolutionary birth, and with an opponent whose ideas were fundamentally different from his own, Lincoln showed up. He gave his opponent equal time. He participated. 

He did so at a time when his country was splitting in two, like the Idaho Republican Party – and the country as a whole – seems to be at growing odds with itself now. 

Last week, three prominent Idaho Republican candidates for public office announced they will refuse to face members of their own party to talk politics on live TV. Gov. Brad Little, who is seeking a second term; state Rep. Priscilla Giddings, who is seeking higher office as lieutenant governor; and Congressman Mike Simpson, who is seeking his 13th term in the U.S. House, let Idaho voters down by announcing they would not publicly debate their opponents in the Idaho Debates, a 30-year tradition hosted by Idaho Public Television.

This isn’t the way the party of Lincoln used to handle things, even when the situation wasn’t exactly heading in their favor.

Douglas, considered to be a presidential favorite of the Democrats, was a well-known entity to Illinois voters, having crafted the controversial Kansas-Nebraska Act that would allow new U.S. states to decide for themselves if they would allow the enslavement of human beings within their borders. 

To Lincoln’s horror, the act undid the 30-year-old Missouri Compromise, which had prevented slavery from expanding in the U.S. as the country looked West. The act propelled him to debate and step back into the political spotlight to find solutions. The act eventually put our country on a collision course with dissolution of the union and civil war over slavery.

Douglas and Lincoln, however, didn’t shy away from their differences as the country wrangled with this, perhaps its most pressing and controversial issue ever. Like many of Idaho’s political candidates today, they knew each other. They met nearly 20 years before around a fire, exchanging ideas at Joshua Speed’s general store in Illinois, notes Doris Kearns Goodwin in her Pulitzer Prize-winning book “Leadership in Turbulent Times.” Decades later, they weren’t afraid to meet each other face-to-face and discuss their plans for the country before a crowd in a public square.

“The choice we face, (Lincoln) told them, is all of ours together,” Goodwin wrote, paraphrasing Lincoln at one of the debates. “If we allow the Kansas-Nebraska Act to stand, if we allow slavery to spread, then the hope of America and all that it means to the whole world will be extinguished.” 

There was another option for the country, Lincoln told the crowd: Americans working together.

“We shall not only have saved the Union; but we shall have saved it, as to make, and to keep it, forever worthy of the saving,” Lincoln debated. 

And even though he didn’t win that particular Senate race, and as the country fell into two camps fighting each other as Lincoln predicted it would – as Idaho candidates are now – his participation in those debates undeniably set this country on a path for a more perfect union forever.

Policy differences should be the reason to debate, not keep Idahoans apart

Now, Idaho also finds itself on two conservative paths. 

There’s an old saying someone recently mentioned to me that “Republicans fall in line, while Democrats fall in love” with their candidates. But in this election, there are identifiable, stark policy differences between GOP candidates running for statewide office, perhaps more so now in Idaho than in recent memory. 

The May 17 GOP primary election will be a litmus test for the party’s own future. Will it be a party that advocates for fiscal conservatism, for balanced budgets and for limited, local government, or will voters agree with the far-right wing of the party that advocates for divesting from public education, for government intrusion into private health care decisions and for demonizing election workers by upholding baseless claims that threaten the legitimacy of our electoral process and its results?

Idaho voters have a right to hear about those ideas and differences directly from the candidates themselves –  without the safety net and comfort that one-sided advertisements, social media posts, anonymous and inflammatory political fliers and dark campaign money provides. 

But that isn’t what they’re getting in these three major races on the GOP primary ballot.

Each candidate gave slightly different reasons for bowing out on Idaho voters. Little said his policy record is “non-debatable,” Giddings demanded to approve the list of reporters who would serve on the panel (which is not allowed under debate rules) and Simpson made the sweeping assertion to the Idaho Press that Idaho voters had heard enough from his opponent. These candidates effectively put themselves above reproach and, in the same breath, silenced their opponents and their supporters by not allowing the debates to go on due to fair-time consideration rules outlined by organizers.

It should be noted that there is a contested Democratic primary race between Ben Pursley and David Roth for one of Idaho’s U.S. Senate seats, and a contested Libertarian primary race for governor between John Dionne Jr. and Paul Sand, where at least one candidate didn’t submit materials on time or said they did not want to participate in the debates. That’s shameful as well.

Despite repeatedly saying we need to bring back and build trust in government throughout his first term, Little is the first sitting governor seeking re-election to refuse to participate in the Idaho Debates in more than three decades. KTVB reports Little took that decision a step further by refusing to participate in any debate before the primary.

Giddings, who faced intense ethical scrutiny from her legislative peers, the public and editorial writers in the state after doxxing an alleged rape victim online, now lacks the courage to face those decisions head on as she seeks the second-highest office in Idaho.

Simpson, who did face his opponent Bryan Smith at the Idaho Debates in May 2014, has served Idaho in this capacity since 1999 and has understood that debating is, in fact, part of the job. Until now.

The announcements came as Republicans capitulated on a national level when the Republican National Committee voted unanimously on Thursday to stop its 35-year tradition of participating with the nonprofit Commission on Presidential Debates, citing a bias within the organization on the timing of the debates and its moderators.

In a tweet posted Friday, the Idaho Republican Party doubled down on this idea, mocking Idaho Debates organizers and demanding that partisanship be introduced into the process. The debates are a nonpartisan effort supported by Boise State University’s School of Public Service, the University of Idaho’s McClure Center, Idaho State University’s Department of Political Science, the League of Women Voters’ Voter Education Fund, Idaho Public Television and the Idaho Press Club.

Mark last week down as another flashpoint on the bleak timeline of steady decay within our political process and erosion of basic political decorum.

Let these decisions startle and impassion us all. Let them motivate Idahoans to hold accountable the politicians who won’t face public inquiry and who won’t advocate for their own policies, track records and ideas for the future of the Gem State.

Douglas and Lincoln debated seven times, three hours at a time, in front of thousands of people across Illinois’ multiple congressional districts. They forced Lincoln to confront, and more importantly, evolve his beliefs about slavery that eventually lead him to the path of emancipation.

Know that the politicians of today who make decisions to refuse to meet each other in the public square now discredit our country’s long tradition of public debate, such as the Republican Party’s own shining example in Lincoln, and they embolden the politicians of the future to hide behind cowardice and inaccessibility.

With its wide accessibility and viewership, the Idaho Debates program is one of the most effective ways for candidates to reach thousands of Idaho voters to earn their trust, understanding and support at the ballot box.

“Idaho Public Television reaches nearly every household in the state, and we know from past comments that many Republican primary voters rely on debates to inform their decisions at the ballot box,” said debate moderator Melissa Davlin of Idaho Public Television in a news release.

Idahoans are facing true hardship: desperately high property taxes, the worst inflation in decades, a booming population in a stressed housing market, a worn transportation and infrastructure system, and a vilified public education system.

Idahoans are looking to hear from the next crop of leaders on what their plans are to solve these problems.

It’s a true shame, in some of these primary races, that they won’t.

Editorial from the Idaho Capital Sun

By keeping police shooting reports quiet, Boise Police Accountability office fell short

Editorial from the Idaho Statesman

The city of Boise’s newly revamped Office of Police Accountability is not living up to its name.

Without announcement or public notification, the office has been quietly posting incident reports over the past three months, including a report into the shooting of Mohamud Hassan Mkoma.

Further, the reports themselves leave much to be desired.

The Idaho Statesman was able to identify the report by matching details from it to the unique circumstances involving Mkoma’s case.

Even more troubling is that Jesus Jara, the office’s director, answered questions about transparency by saying the vagueness and quiet release of the reports are by design and align with how the ordinance creating the office was written.

Jara acknowledged that the lack of identifying information in a report could make it difficult for the public to know which incident a report is referencing.

“If that’s the case, in my mind, we met our goal,” Jara told Idaho Statesman reporter Joni Auden Land. “We’re trying to make sure people don’t know.”

Jara also said it’s not a goal of his office to disseminate the reports and that he has no plans to announce the release of any investigation completed by the Office of Police Accountability, whose stated goal is to increase transparency and accountability in internal investigations of law enforcement.

“We don’t plan on trying to make this something of a news item,” Jara said.

That is unacceptable.

Fortunately, the city of Boise announced Thursday, after reporting by the Idaho Statesman, that the office will start issuing news releases when it completes an investigation, a reversal from its earlier position.

That’s good news.

Communicating with the public is vital to transparency. It’s also vital to public trust.

If the public believes that the Office of Police Accountability is trying to keep its reports quiet, how can the public have any trust in the results? The review of the Mkoma shooting is dated Dec. 27, but no public statement was made about it or about any of the recent reports — three at the end of December, one at the end of January and two at the end of February.

The Statesman was made aware of the completion of these six reports during Jara’s presentation before the Boise City Council on Tuesday.

Family and friends of Mkoma have been pressing the city of Boise to release information about the incident as well as body camera footage. While the Ada County Prosecuting Attorney’s Office has withheld the body camera footage for reason, the Office of Police Accountability should have and easily could have announced the release of its investigation.

Instead, the report was filed in December and sat on the city’s website for three months — unannounced to the public.

The report certainly isn’t easy to find on the city’s website.

The Office of Police Accountability page is not found under “Police Department,” as one might expect.

It also is not found under “Community Engagement.” It’s found under “Mayor’s Office,” which may not be a logical place to look for that office.

Further, without notification to the public, that means an interested party, such as family and friends, would need to check the site every day to see if a report has been posted.

Previously, the part-time director of the then-named Office of Police Oversight did her own community outreach. Boise Mayor Lauren McLean assured this editorial board in June that the Office of Community Engagement would handle such functions under the new Office of Police Accountability.

We would have expected, then, that someone from that office would have issued a press release to inform the public that a report had been completed and posted.

That never happened.

As it is, it appears that the Office of Police Accountability is not even posting its reports when they are filed. Rather, the reports appear to be posted at the end of each month.

After the city of Boise violated public records laws twice in the past few months, this is yet another troubling example of a lack of transparency from a mayor who ran and got elected on a platform of government transparency.

Aside from the lack of transparency, we are also troubled by the reports themselves.

Without names of officers involved, we are unable to determine whether an officer has been involved in other shootings or even in other disciplinary action. We don’t know how much experience they have or how much training they have — especially whether they’ve gone through critical incident training.

Jara said the ordinance creating the accountability office requires that no names or identifying information of anyone involved be included. If that’s the case, Boise City Council members need to make changes to the ordinance.

When changes to the office were proposed last year, this editorial board supported them.

Rather than reviewing a Boise Police Department internal affairs report and gathering further information as needed, we were told, the new model would put an investigator, requested by the Office of Police Accountability, at the site of a critical incident to conduct first-hand interviews and collect information independently right from the start.

Based on the Mkoma report, we’re not convinced that happened.

The report indicates that the Office of Police Accountability “participated” in the internal affairs interviews with the sergeant and officers involved, but it does not state whether the office asked its own questions or merely witnessed their interviews. The report does not state whether the office was able to interview officers independently.

We haven’t seen body camera footage of the incident yet, but according to the report, the officers in the Mkoma shooting acted heroically, perhaps saving the life of a 13-year-old child, and certainly saving the life of Mkoma after shooting him five times.

Officers put pressure on his wounds and performed CPR on Mkoma, who survived.

But our concern is more about transparency and being open with the public.

In our initial support for the new office, we had an important caveat.

“While we support the proposed changes, we want to make sure that the city doesn’t lose outreach to the community, particularly to minority communities,” we wrote in June. “It will be vital to maintain positive relationships with all segments of the population.”

Unfortunately, on several points, the revamped Office of Police Accountability is falling short.

Boise City Council members need to step in here and ensure the Office of Police Accountability is accountable to the residents.

Statesman editorials are the unsigned opinion expressing the consensus of the Idaho Statesman’s editorial board. Board members are opinion editor Scott McIntosh, opinion writer Bryan Clark, editor Chadd Cripe, newsroom editors Dana Oland and Jim Keyser and community members J. J. Saldaña and Christy Perry.

Editorial from the Idaho Statesman

Idaho bill to hide execution drug suppliers from public clears Legislature

From the Idaho Statesman

By Kevin Fixler,  Idaho Statesman

A bill designed to conceal the identity of all execution drug suppliers to maintain Idaho’s death penalty by lethal injection is only a governor’s signature away from becoming law.

House Bill 658, co-authored by the Idaho attorney general’s office and Idaho Department of Correction, cleared the state Senate on Friday to win full approval in the Legislature. After nearly an hour of debate, the Senate backed the proposed law in a 21-14 vote. The House passed the bill by a narrow margin last month.

Proponents have said the law is necessary to continue Idaho’s overarching policy of capital punishment.

“Lethal injection is the most humane way to perform this function,” said Sen. Todd Lakey, R-Nampa, who is the bill’s Senate sponsor. “Without this bill, the policy of the state of Idaho is simply null and void — it’s ineffective. … Without this, that policy does not exist.”

State prison officials have said that suppliers won’t sell them lethal injection drugs out of concerns that they will be identified and face public scorn for involving themselves in the polarizing national issue of capital punishment. Proponents of the bill have said allowing the names of drug sources and medical participants to be released will lead to protests of the homes and businesses of those who assist, to shame them out of helping Idaho carry out an execution.

Josh Tewalt, director of the Department of Correction, testified in favor of the bill before committees in the House and Senate that the agency does not presently have execution drugs on hand. He said the state’s ability to continue the death penalty is threatened by this barrier, and discouraged calls from some lawmakers to instead return of other methods of execution, including a firing squad and hangings.

The Department of Correction and Idaho attorney general’s office each declined an Idaho Statesman request for comment after passage of the bill. The Federal Defender Services of Idaho, the nonprofit that represents the majority of the state’s death row inmates, also declined to comment Friday.

The bill’s opponents include the American Civil Liberties Union of Idaho, Idaho Press Club and the Idaho Association of Criminal Defense Attorneys. Each testified against the bill in House and Senate panel reviews before it came up for full votes in the two chambers of the Idaho Legislature.

During debate of the bill Friday afternoon, three Republicans spoke in favor of its passage, and seven senators debated against it, including four Republicans.

Assistant Minority Leader Grant Burgoyne, D-Boise, spoke for more than 15 minutes, emphasizing the bill’s particular importance to him, an attorney. He said he is not in opposition of the death penalty, but the lack of public transparency and civil rights questions under the U.S. Constitution that the proposed law creates were reasons to block its passage.

“When you tell the public they can’t know, they speculate and they distrust,” Burgoyne said. “If there is to be public support for execution, the public has to have confidence in the process. Denying transparency is not going to help. It’s only going to make it worse.”

Burgoyne was joined by Sen. Christy Zito, R-Hammett, in attempting to convince fellow senators to vote against the bill. Zito raised concerns about not even allowing courts to know the source of the lethal injection drugs under the proposed law in the case that an execution is botched, causing an “inhumane death.”

“Each and every one of us in this body today will be responsible for the result of the next execution that is carried out in this state,” Zito said. “It will be as if our hand is on that syringe. … I want to be able to say that I chose transparency and accountability.”

The Senate’s vote to approve the bill came during National Sunshine Week, an annual initiative promoting access to public information and open government.

Past execution practices under scrutiny

The lethal injection confidentiality bill came about as a result of an Idaho Supreme Court ruling in 2020 that compelled the Idaho Department of Correction to release documents identifying past execution drug sources in response to a public records lawsuit. The documents were later used to show the two out-of-state pharmacies that provided the state with the lethal injection drugs for executions in 2011 and 2012 had dubious safety histories.

The documents released under court order also revealed the lengths to which state prison leadership went to keep its execution drug sources secret. Such covert tactics included the use of confidential cash accounts and state-chartered flights, as well as leveraging the Idaho Department of Health and Welfare to acquire the drugs on IDOC’s behalf.

The Federal Defender Services of Idaho alleged in a subsequent legal filing that Tewalt was personally involved while at the time in a junior leadership position. The lawsuit alleged he brought a suitcase with as much as $15,000 cash aboard a state flight to Tacoma, Washington, in 2012 to make an after-hours exchange for the drugs in a Walmart parking lot.

Ronald Bush, a retired U.S. district court of Idaho judge who presided over death row inmate Paul Rhoades’ unsuccessful appeal in 2011, testified against the bill during a Senate panel review before it advanced to the Senate floor for a vote. He said Tewalt told him before the hearing that the details of the 2012 drug purchase were inaccurate.

“That’s the sort of stuff I used to see affidavits in support of arrest warrants, so I hope that wasn’t the case,” Bush said. “But the point is, the reason for the secrecy is to let that sort of thing happen, and is that really good policy, on one of the most serious actions that the state can take against an individual?”

Idaho Division of Aeronautics flight records obtained by the Statesman under the Idaho Public Records Act confirmed Tewalt and another former member of state prison leadership were on a May 2012 round-trip flight to Tacoma. The drugs acquired in that transaction were later used to execute death row inmate Richard Leavitt on June 12, 2012, IDOC records show. Leavitt was the last prisoner executed in Idaho.

Tewalt also denied assertions about how IDOC previously acquired execution drugs during bill testimony last month, stating that they were merely allegations made as part of a lawsuit. He has declined repeat interview requests from the Statesman about the department’s past lethal injection drug practices.

“While that story has been widely reported, it always includes the caveat that it’s an allegation as part of a litigation,” Tewalt said during testimony in the House panel last month. “I think the important thing to note is that while we’ve chosen to do our talking where it really matters — and that’s in the appropriate legal venue — I would suggest that those chemicals were lawfully obtained, they were tested and verified through an independent third-party, and they were administered in accordance to the law.”

Several senators again brought up the state’s past execution drug practices, documented in Department of Correction records released under court order, during debate Friday. Lakey, the bill’s Senate sponsor, responded and backed Tewalt’s claims in seeking the votes to send the bill to Republican Gov. Brad Little’s desk.

“There’s been no improper conduct in the provision of the death penalty in Idaho,” Lakey said. “Those stories are myth and false.”

Rep. Greg Chaney, R-Caldwell, who is the bill’s House sponsor, told the Statesman in a prior interview that Tewalt also told him that publicized details about past execution drug purchases were untrue.

“I don’t know whether that happened,” Chaney said by phone of the after-hours cash exchange in Tacoma’s Walmart parking lot. “That sort of thing shouldn’t have to happen to procure lethal injection drugs. To the degree that that’s either factually or metaphorically the case, that highlights the problem that (House Bill) 658 is trying to fix. So the very fact that allegation can be leveled shows there’s a problem with the availability of lethal injection drugs.”

After House Bill 658’s Senate passage Friday, the ACLU of Idaho called on Gov. Little to veto the bill.

“We are disappointed with today’s Senate vote,” Lauren Bramwell, the ACLU of Idaho’s policy strategist, said in a written statement to the Statesman. “It is inconsistent for lawmakers to tout the importance of government transparency, while simultaneously cloaking the state’s greatest power — the power to end someone’s life — in a veil of secrecy. Without transparency, cases of incompetence or misconduct can continue unchecked.”

Next steps for state executions

The execution confidentiality bill next heads to Gov. Little’s desk, where he can either veto it, or sign it into law. A Statesman email to Little’s office inquiring how he plans to handle the bill did not receive a response Friday.

On Thursday, Lt. Gov. Janice McGeachin, who is challenging Little in the upcoming GOP gubernatorial primary, told the Statesman in a brief in-person interview that she had yet to look at the lethal injection shield bill, despite her role as president of the Senate. As a result, she offered no position on the bill.

In a related matter, the Idaho Supreme Court upheld the state’s lethal injection protocols on an appeal from attorneys with the Federal Defender Services representing death row inmate Gerald Pizzuto. The convicted double-murderer is terminally ill with late-stage bladder cancer and has been on hospice care for more than two years.

Pizzuto, 66, has sat on Idaho death row for more than 35 years after his 1986 conviction for the brutal murders of two people at a remote Idaho County cabin north of McCall in the summer of 1985. Pizzuto has avoided execution three times since, most recently including last spring, when he was granted a clemency hearing to consider reducing his sentence.

The Idaho Commission of Pardons and Parole, a seven-member board appointed by the governor, voted 4-3 to drop Pizzuto’s sentence to life in prison without parole, issuing its decision in December. On the same day, Little rejected that recommendation, leading Pizzuto’s attorneys to challenge in court the governor’s authority to do so under the Idaho Constitution.

A state district court judge heard the case in January, ruling two weeks later that the state’s constitution does not give the governor the power to reject the parole board’s recommendations, including for death row inmates. Pizzuto’s sentence was returned to the parole board’s recommended life in prison, disallowing the issuance of a death warrant.

The Idaho attorney general’s office, in collaboration with the governor’s office, is currently appealing that ruling to the Idaho Supreme Court. The case is expected to be heard later this year.

From the Idaho Statesman

Panel revives execution secrecy bill with repeat vote

From the Associated Press

By Rebecca Boone

BOISE, Idaho (AP) — A Senate committee chairman has revived a bill that would dramatically increase the secrecy surrounding Idaho’s execution drugs, bringing the matter back for a second vote on Monday after it failed to pass last week.

With one more member of the Senate Judiciary and Rules Committee present, the bill passed on a 5-4 vote, going to the full Senate with a “do pass” recommendation.

Last Wednesday, the legislation had died on a 4-4 tie vote. The tie-breaking vote on Monday was cast by Sen. Patti Anne Lodge, a Republican from Huston, who was absent on Wednesday.

The legislation would prohibit Idaho officials from revealing where they obtain the drugs used in lethal injections, potentially even if they are ordered to do so by the courts.

During a hearing last week, the bill drew heavy opposition from criminal defense attorneys, a retired federal judge and various organizations. They argued that capital punishment requires more government transparency, not less.

On Monday, committee chairman Sen. Todd Lakey said he had reviewed “Mason’s Manual,” the procedural rulebook used by the Legislature, and decided that he could bring the bill back for a second vote when the full committee was present.

He said the rules show that a tie vote is a “nullity” that simply maintains the status quo. The need for a re-vote was urgent, the Republican from Nampa said, noting that the state would be fighting in court to execute two death row inmates in the near future.

“If this is an issue we’re going to address, we need to address it now,” Lakey said, so “that the death penalty can be an appropriate sentence in Idaho.”

But Sen. Melissa Wintrow, a Democrat from Boise, and Sen. Christy Zito, a Republican from Hammett, disagreed with Lakey’s interpretation of the rules. They expressed concern that about the precedent that would be set by allowing re-votes on settled matters. That could lead to repeated re-votes, slowing the Legislature’s work, they said.

“I’ve been kind of perplexed by this as well,” Zito said. “It would seem to me if we’re not careful we could set a precedence if we don’t like the way something turned out … I have had bills myself that have had a tie vote, and that’s just it.”

During testimony last week, Idaho Department of Correction Director Josh Tewalt said potential drug suppliers want the confidentiality provisions written into state law before they will sell the drugs to Idaho’s prison officials. He said that prison officials are currently unable to obtain the chemicals they need for executions.

Tewalt also said concerns that the department might use tainted or inappropriate drugs are unfounded, contending that prison officials would decide on their own not to use any chemicals if there is a question about their suitability.

But Ronald Bush, a retired U.S. District Court judge who has presided over cases where a condemned Idaho inmate was fighting the state’s execution policy, said the legislation puts the Eighth Amendment protections against cruel and unusual punishment and the First Amendment free speech rights of the general public at risk.

Bush said he was speaking as a private citizen, not as a representative of the courts. He said that the Idaho Department of Correction had acted “surreptitiously” in its two most recent executions.

In one case, department officials withheld information from the federal courts about the fact that they were sending a worker across state lines to purchase the lethal chemicals, using cash eight days before a scheduled execution.

The legislation narrowly passed the full House last month.

From the Associated Press

Senate panel kills bill expanding execution drug secrecy

From the Associated Press

By Rebecca Boone

BOISE, Idaho (AP) — A bill that would have increased the secrecy surrounding Idaho’s execution drug suppliers died in a Senate committee hearing Wednesday on a tie vote.

The legislation would have barred Idaho officials from releasing where they obtain the drugs used in lethal injections, but it drew heavy opposition from criminal defense attorneys, a retired federal judge and various organizations who all argued that capital punishment requires more transparency, not less.

Members of the Senate Judiciary Committee voted 4-4 on whether to advance the bill, which means the legislation automatically fails.

During testimony, Deputy Attorney General Mark Kubinski told the committee that the legislation was needed because anti-death penalty advocates could try to identify and then publicly shame the companies or individuals that supply lethal injection drugs. He said such instances had happened around the country, making it increasingly difficult for departments of correction to obtain the materials needed for executions.

Idaho Department of Correction Director Josh Tewalt said potential drug suppliers want the confidentiality provisions written into state law before they will sell to Idaho’s prison officials.

“As I stand before you today, we have been unable to secure the chemicals necessary to carry out lethal injection in the state of Idaho,” Tewalt told the committee.

He said concerns that the department might use tainted or inappropriate drugs are unfounded, and any questions about whether lethal injection amounts to cruel and unusual punishment have already been resolved by the nation’s court system. If IDOC officials have any question about the suitability of a lethal injection medication, they will not use it, Tewalt said.

“I’ve never felt pressure … to carry out an execution regardless of what the potential consequences might be,” Tewalt said. “The understanding has always been, if we can’t do this with professionalism and dignity and respect, then we don’t do it.”

But Ronald Bush, a retired U.S. District Court judge who has presided over cases where a condemned Idaho inmate was fighting the state’s execution policy, said the legislation puts the Eighth Amendment rights of a condemned person and the First Amendment rights of the general public at risk.

Bush said he was speaking as a private citizen, not a representative of the courts. He said the Idaho Department of Correction has acted “surreptitiously” in two previous executions.

Bush presided over the case of Paul Ezra Rhoades, who was executed in 2011 for his role in the murders of two women in 1987. Days before the lethal injection was to occur, Rhoades asked Bush to temporarily halt the execution while Rhoades continued to fight the state’s execution procedures in court.

During a hearing on the request, the Idaho Department of Correction withheld information about how they were obtaining the executions drugs, “even though they were well aware that I was concerned about the hasty manner in which the state was going about this execution,” Bush said.

Bush denied Rhoades’ request, and he was put to death eight days later.

The judge found out years later — thanks to a public records lawsuit that exposed some details about the previous executions — that on the very same day of the hearing, a state employee was using cash to buy the drugs from a pharmacist in Salt Lake City.

“I don’t know if that information would have caused me to think differently than I did, but it certainly would have been something I would have looked at carefully,” Bush said.

The legislation would also have prohibited information about drug sources from being revealed even in court, Bush said, effectively turning it into a “black box.”

“That raised my eyebrows because I question whether that could be properly done,” he said.

In lethal injection executions, “it’s the details that matter,” Bush said, noting that there have been instances in other states where executions have been botched, resulting in “horrific and even barbaric circumstances.”

Anne Taylor, a criminal defense attorney who is qualified to represent people facing the death penalty, said she already has to tell her clients that under state law they won’t find out exactly which drug or drug combination will be used in executions until it is often too late to take legal action. Idaho allows the Department of Correction to withhold that information until shortly before an execution.

Lobbyist Teresa Molitor, representing the Idaho Association of Criminal Defense Lawyers, said “secrecy statutes” like the proposed bill make botched executions more likely “by shrouding all of the preparation in darkness.”

And Lauren Bramwell with the American Civil Liberties Union of Idaho said states have used secrecy laws as a pretext to hide improper conduct.

“If Idaho continues to execute its death row prisoners, the process must remain transparent and the government accountable,” she said.

After the hearing, Idaho Department of Correction spokesman Jeff Ray reiterated that the director, Tewalt, was not there as an advocate for the death penalty but simply to let lawmakers know what conditions are necessary for the state to carry out executions.

“We respect the process,” Ray wrote in an email. “It will be up to those policymakers to decide what’s next for the legislation.”

From the Associated Press

Idaho House OKs some cybersecurity records remaining secret

From the Associated Press

By Keith Ridler

BOISE, Idaho (AP) — Lawmakers in the House on Monday approved exempting some government cybersecurity records from public disclosure in a measure backers say is needed to thwart terrorist attacks.

The House voted 48-20 to approve the bill that would exempt disclosing the nature, location and function of cybersecurity devices, systems or programs used by a government entity to thwart terrorist attacks.

Republican Rep. Dustin Manwaring, the bill’s sponsor, said the legislation exempting those records from Idaho’s Public Records Act is needed because other nations are targeting government systems in the United States, and they could use public records to aid in those attacks.

“They are usually not just guys-down-in-the-basement hackers,” Manwaring said during debate on the House floor. “These are nation-state actors now that are attacking our government systems.”

Only Republican lawmakers opposed the bill, some citing their concerns individuals could fall under federal government surveillance if they are deemed to be domestic terrorists and not be able to find out about the surveillance.

Republican Rep. Heather Scott said that could include people the federal government considers spreading misinformation about the 2020 presidential election.

“Right now, we might think that we are not a target, but you get on the wrong side of the federal government, and you very well may be surveilled with no justification,” she said.

Democratic Rep. Chris Mathias, a U.S. Coast Guard veteran, said those fears were unfounded.

“I don’t care where terrorism comes from or originates,” he said. “I don’t care if it originates abroad or down the street from my house. If the government has the tools and the means available to do what is necessary to keep us safe, I want to make sure that we have them.”

Manwaring said a common item that would be prevented from being disclosed would be details about software designed to protect against malware attacks from terrorists.

Republican Rep. Vito Barbieri cited his concern that language in the bill about what constitutes a terrorist attack could be defined broadly to allow wide latitude in the government using cybersecurity methods without oversight.

“What is considered a terrorist attack?” he said. “This is a concern and I’ll be voting against it.”

Republican Rep. Julianne Young, who ultimately voted to pass the bill, sought clarification from Manwaring about limits on the bill, specifically asking if it could lead to government agencies withholding information about investigating a citizen.

Manwaring confirmed that the bill was only meant to withhold information about cybersecurity devices that protect other systems, and not to allow unfettered and hidden snooping on citizens.

The bill now goes to the Senate for its consideration.

From the Associated Press

Senate panel unanimously backs two campaign transparency bills

From the Idaho Press

by Betsy Z. Russell

BOISE — Two election transparency bills cleared the Senate State Affairs Committee on unanimous votes on Friday, aimed at providing more timely access to campaign finance reporting in non-election years and ensuring candidates for office provide contact information.

SB 1337, from committee Chair Patti Anne Lodge, would close a gap in Idaho’s campaign finance reporting system that in non-election years, requires only reporting of contributions of more than $1,000, which must be reported within 48 hours. Full reporting, including all contributions or spending, currently isn’t required until the end of the year. Then, during the year of the election, there’s full monthly reporting.

“This is something that I’ve been working on for several years and that’s campaign finance transparency,” Lodge, R-Huston, told the committee. In 2021, a non-election year, $11.9 million was donated to 497 candidates and $7.2 million was spent on campaign activities, she said. But only the individual 48-hour reports were public before the Jan. 10 year-end report had to be filed; people had to sort through individual donation reports and add them up to get even a part of the full picture. “This is not what transparency of election contributions is about,” Lodge said. “Our citizens are calling for fair elections; that includes campaign financing of the campaigns.”

Under SB 1337, even in a non-election year, monthly reporting would start as soon as a candidate has raised or spent $500. That would apply to all campaigns, Lodge said.

She said with Idaho’s new electronic filing system, it’s easy to do.

“There have been a multitude of updates and improvements in our campaign filing system reports,” she said. “The system is friendly and easy to use now. This process in years past has been cumbersome and difficult. And I must commend our Secretary of State Lawerence Denney for his leadership in developing this reporting system.”

Elinor Chehey of the League of Women Voters of Idaho testified in favor of the bill, saying, “In 1974, the League of Women Voters of Idaho organized a successful campaign to get the Sunshine Law on the ballot. This was based on our goal to ensure transparency and the public’s right to know who is using money to influence elections. I carried a few petitions for the campaign.”

It passed with 77.4% of the vote, she noted. “SB 1337 helps to close a gap in the state’s new online campaign finance reporting system,” Chehey said, urging support for the bill.

Ada County Clerk Phil McGrane also spoke in favor of the bill. “I think Chairman Lodge has done an excellent job trying to push this forward,” he said. “Hundreds of thousands of dollars have been coming in during the non-election years. … We just didn’t anticipate campaigns beginning as early as they are beginning now.”

Lodge said, “Citizens deserve to understand who is financing campaigns in Idaho. This legislation was developed with the help of the secretary of state.”

Sen. Grant Burgoyne, D-Boise, said, “I just wanted to thank our chairman for bringing this legislation. Her persistence over the years for campaign transparency is much appreciated by me and I think many other people.” He moved to send the bill to the full Senate with a recommendation that it “do pass.” Sen. Lee Heider, R-Twin Falls, seconded the motion, and it passed unanimously.

Lodge called on Ken Burgess, lobbyist for the Idaho Press Club, to present the other transparency bill, SB 1338. It requires that campaign contact information, including a phone number and email address, be included in declarations of candidacy, and clarifies that that information is publicly available upon request. “There has been some interpretation of one of the sections in there related to the electronic filing system that perhaps that information is not available,” Burgess said, “and some entities have had challenges getting that information in the past couple of years.”

That has included the press, civic groups organizing candidate forums, and even county clerks.

McGrane testified in favor of SB 1338 as well. “We had a contested recount in Meridian in November,” he said. “And one of the candidates who was involved in that, I had to scour the internet, including going on LinkedIn and trying to connect with the person to get them a message, because I could not find contact information … to let them know that they would be involved in a recount.” He said the bill would be “extremely helpful.”

“I think you all recognize as candidates, once you put yourself out there, it seems reasonable,” McGrane said. “The candidates can determine what the best number is to reach them at, but that we be able to contact candidates I think is pretty important.”

Chehey also testified in favor of SB 1338 on behalf of the League of Women Voters of Idaho. She has chaired the league’s “Vote 411” project since 2018, which allows voters to look up which candidates are on the ballot in their area and see the candidates’ positions, in their own words. “We do not support or oppose candidates,” Chehey said. “Our purpose is to encourage active participation of citizens in government.”

Putting the project together requires emailing each candidate, she said, which was “fairly easy” in 2018, because the Secretary of State Office’s campaign finance website included phone numbers for candidates and their campaign treasurers. But, she said, in 2020, those numbers no longer were on the site, nor would the office release them.

“Since 2020, we have had to Google candidate names and hope to find a candidate’s website or Facebook page,” she said. “Some candidates have no website, or are up very late in the season, so they may get left out.”

Lodge told the committee, “Elinor contacted me this last summer about this legislation, and so she’s one of the bright lights that has brought it forward.”

Sen. Abby Lee, R-Fruitland, moved to send SB 1338 to the full Senate with a recommendation that it “do pass,” and Sen. Michelle Stennett, D-Ketchum, seconded the motion. It passed unanimously.

To become law, both bills still would need to pass the full Senate, clear a House committee, pass the full House and receive the governor’s signature.

From the Idaho Press