Judge rules prosecutor in Lori Vallow case can continue representing state

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REXBURG, Idaho — A judge has decided against disqualifying the special prosecutor in the Lori Vallow and Chad Daybell case for the deaths of Tylee Ryan and JJ Vallow, but he said he isn't ruling out the possibility.

Judge Steven Boyce said there isn't enough evidence to show that prosecutor Rob Wood acted unfairly.

The hearing started on Tuesday and boiled down to one key piece of information — a recorded conversation between the prosecutor and Lori Vallow's sister Summer Shiflet.

"We are going to be filing conspiracy to commit murder charges against both Chad and Lori, and we're not shy about that," Wood told Shiflet.

The 18-minute recording happened back in October, moments before she was interviewed by detectives in Arizona.

Chad Daybell and Lori Vallow's attorneys said the meet-and-greet turned into an inappropriate conversation that tainted Shiflet's testimony.

"I have my own opinions for him," Summer Shiflet said, referring to Chad Daybell.

"I bet you do," replied Wood. "He is highly manipulative."

"Yeah, I see that," Shiflet said.

"I'm not going to say he is highly intelligent, but you don't have to be highly intelligent to be highly manipulative," Wood said.

The "introductory conversation" was meant to be a brief opportunity for both parties to officially meet, said Shiflet's attorney Garrett Smith.

"We had a similar one with my [other] client Zulema Pastenes [Alex Cox's widow], but that had more to do with her use immunity agreement," Smith told the court.

However, Smith testified that the conversation quickly diverged. He said he initially hit record for his own records, not realizing the conversation would take a turn.

"It set off a lot of buzzers in my mind," Smith told defense attorneys. "I have been practicing for 27 years. I just, it was curious. I hadn't seen anything like it."

Smith said he became concerned that Wood might be influencing Shiflet's testimony.

"It bothered me that there was discussion for potential punishment for my client's sister," said Smith.

During the conversation, Wood told Shiflet conspiracy to commit murder charges were in the works for Vallow and Daybell, and the case against Vallow was "stronger."

"It is a death penalty case," Wood told Shiflet.

"Are you planning to ask for that? Shiflet asked.

"We sure hope not," Wood said.

Defense attorneys argued Wood also pushed ethical boundaries when referring to Vallow's attorney, Mark Means.

"When she has competent counsel, I don't know if you know this, her attorney has never handled a felony before," Wood told Shiflet. "He has never, never gone on any meaningful criminal work at all. He doesn't know what he's doing. He's a nice guy, other than when he is lying about me, but he doesn't know what he's doing. Once we file further charges, she will be appointed counsel who will know what they're doing. Our goal is to put together such a case that they're smart enough to say, 'It's going to be better to talk.'"

Wood also discussed Tylee Ryan's autopsy with Shiflet, saying they may never know what happened after she asked if there were any updates in her case.

"She is at the FBI's state-of-the-art crime lab. Unfortunately, there's a lot of deceased bodies there that they are going through, so we don't know really anymore yet. We may never know due to the destruction of that body," he said, "But obviously, we know it was her — there was soft tissue that was still preserved enough to do DNA tests."

Two expert witnesses hired by the defense provided testimony, including a forensic psychologist, Dr. James Davidson, and University of Idaho law professor Sam Newton.

One of the concerns Dr. James Davidson presented was whether Wood used their religious common ground as members of The Church of Jesus Christ of Latter-day Saints to influence Shiflet's testimony.

"The other thing I'm going to tell you is your sister truly believes that everything she has done has been done in righteousness," Wood told Shiflet. "I think she knows what she has done, but the context under which it was done — was this religious? I mean, just these ideas that are out there. I can say this because I am LDS."

Wood again referred to their common belief system when talking about Daybell.

"He uses this, I call it spiritual abuse, spiritual manipulation. We've all seen that guy in the LDS religion whose wife has to obey him because he has the priesthood-type thing, and that's not what he says, but it's the same type of thing," he said.

Newton expressed several concerns over ethical boundaries that may have been crossed during the exchange.

"What I said to myself after I heard this interview was he wants Ms. Shiflet to talk to Lori Vallow and tell her, 'Hey, go talk to the police, go help him throw Chad under the bus, and you might be able to save yourself,'" said Newton.

Newton told attorneys he felt the conversation was pushing ethical boundaries, but he didn't think it was enough to disbar an attorney.

During closing arguments on Friday, John Prior, Chad Daybell's attorney, and Mike Means insisted Wood's actions were inappropriate and demanded his disqualification.

"The standard is, was your conduct so bad that it had an impact on the trial in this case? I can't think of a more egregious situation, other than a prosecuting attorney in one of the most high profile cases in Idaho, this prosecutor with full knowledge and at the expense of Fremont County, chose to drive out and interview a witness and suggesting it would be a meet and greet, spends 20 minutes of a narrative doing everything he can to influence this witness to testify a certain way," said Prior.

"His intent to be there was to manipulate the testimony of this witness," said Means. "That goes to violations of the rules. This court, at the end of the day, has to determine what kind of precedent it wants to set with these types of actions. If this type of behavior goes unwarranted, unchecked, unsanctioned, you are telling myself, Mr. Prior, the prosecutor and whoever else that you can engage in these practices without precedence."

Meanwhile, Wood's team argued it's not enough to disqualify Wood, saying allegations that he violated rules of professional conduct are a decision for the Idaho State Bar and not the trial courts per state law.

"Counsel doesn't like the words Mr. Wood used, or maybe the order the words are placed in, but there is no coaching and no intimidation," said Madison County Deputy Prosecutor Troy Evans.

In the end, Judge Steven Boyce determined that he will not disqualify Wood considering no sanctions have been issued by the Idaho State Bar and there is no official confirmation that Shiflet will be called to testify at trial.

"Without knowing whether or not this potential witness will ever be called to testify at a trial, the court can not find at this time that the interaction between Mr. Wood and the witness would render Mr. Wood's participation in the case unfair and can not determine that the prosecutor's pre-trial activity will be a material issue in this case," said the Judge. "For those reasons then, the motions to disqualify Mr. Wood are denied."

If Summer Shiflet is called to testify, Boyce required her to attend a pretrial or taint hearing. Boyce also encouraged Wood to apologize to Means.

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