Chad Daybell’s attorney is asking the judge to throw out his grand jury indictment on murder charges.

Daybell is charged with killing 7-year-old J.J. Vallow and 16-year-old Tylee Ryan, the children of his wife, Lori Vallow, who also is charged with their murder. Daybell also is charged with first-degree murder in the death of his first wife Tammy Daybell.

During a Wednesday hearing, defense attorney John Prior asked Fremont County Magistrate Judge Steven Boyce to throw out the indictment by a grand jury because the defense believes the jurors selected were not fair and impartial.

“In terms of themes, there’s been pervasive media coverage. That plays into the fairness and impartiality of the grand jury proceedings,” Prior said.

Prior noted the prosecution chose to use a grand jury proceeding and he didn’t, which he argued obligates the prosecution to panel a fair and impartial grand jury.

“In my perspective and Mr. Daybell’s perspective, the grand jury that was paneled was not fair. They were not impartial and I’d ask the court to strike the grand jury proceedings and dismiss this action,” Prior said during the hearing.

Fremont County Prosecutor Lindsey Blake opposed Prior’s motion. Referencing case law and Idaho code, she said dismissing a grand jury is a drastic remedy and should only be exercised in extreme or outrageous situations, therefore the defendant has a heavy burden to dismiss the jury.

“There are several arguments made by the defendant in regard to individual jurors and the state believes all of those jurors were appropriately seated and they wouldn’t have needed to be removed,” Blake said.

Blake did acknowledge there may have been challenges raised with pretrial publicity but she said Idaho code does not disqualify jurors if they have a hypothetical opinion founded on hearsay or information supposed to be true unaccompanied by malice or ill will.

“I think without more of a showing than simply a statement that there was pretrial publicity and because a juror had viewed that, it must affect their ability to sit as an impartial juror — I think that situation was somewhat anticipated by the writing of that rule,” Blake said.

The prosecution has until April 6 to file an official brief opposing the motion, and then Prior will have until April 20 to submit a rebuttal. On Monday, Boyce denied a petition to hold separate trials for Daybell and Vallow.

Boyce earlier ruled Vallow incompetent to stand trial and she is currently being treated and evaluated in a state-run facility. The trial is scheduled in January 2023.