Can Lori be forced to take medication?

Good morning friends! There is a development to chat about. I also want to answer some questions that we didn't get to in my last live YouTube with Lauren on Hidden True Crime. Before I begin, though, I want to thank you all for your tremendous interest and support. More than 4000 of you have subscribed to the newsletter, and my appearances on Hidden True Crime attract an average of 10K views a week. Thanks to all of you that live outside the United States, in places as far-flung as England, Ireland, New Zealand, and South Africa, who set their alarms and get up at all hours to listen and chat with us live, you add so much to the conversation!

There was an unexpected hearing held yesterday, Wednesday, September 15, 2021. It was held in private and sealed. The issue of how many private hearings are being held is a topic for a future newsletter – expect it soon. Documents released after yesterday's hearing indicate that the issue is that Lori Vallow Daybell is refusing medication that could restore her to competency.

So what happens when a person refuses medication? Idaho statute 18-212(3) provides the answer.

(3) If during a commitment under this section a defendant who has the capacity to make informed decisions about treatment refuses any and all treatment, or the only treatment available to restore competency for trial, the court shall, within seven (7) days, excluding weekends and holidays, of receiving notice of the defendant's refusal from the facility, conduct a hearing on whether to order involuntary treatment or order such other terms and conditions as may be determined appropriate. The burden shall be on the state to demonstrate grounds for involuntary treatment including, but not limited to: the prescribed treatment is essential to restore the defendant's competency, the medical necessity and appropriateness of the prescribed treatment, no less intrusive treatment alternative exists to render the defendant competent for trial, and other relevant information. If the court makes each of these findings, treatment shall be ordered consistent with the findings.

The prosecutor asked the court to allow the state to discuss the case with Lori's treatment providers at the Idaho Department of Health and Welfare (IDHW) and asked to share the original assessment with them. The state's motion goes on to say that IDHW wants a court order to cover their HIPPA obligations before they talk to anyone. That's not unusual. The motion also says that IDHW has repeatedly requested a copy of Lori's initial assessment and any raw testing data and has not received it. That is surprising to me. I have never seen a case where the treatment provider wasn't given a copy of the original assessment as part of the defendant's records. As a result of yesterday's hearing, the judge ordered the medical providers to communicate with the state. The court also authorized the state to give IDHW a copy of Lori's original assessment. The judge then continued the hearing until today, Thursday, September 16, 2021, at 3 pm. The court database indicates a subpoena was issued for Deputy Attorney General Amy Long to appear at yesterday's hearing. It's unclear what Long's duties are in the AG's office, but I am speculating that she is the attorney that represents the IDHW and is probably being called to represent them in the hearing. It appears the judge continued the hearing so that he could hear information from treatment providers. Ultimately, the judge decides whether Lori is competent, using the information he receives from her providers. The need to extend her treatment makes more sense now that we know she has been refusing medication. The judge won't allow her to extend her treatment indefinitely while refusing to take medication. I expect that as long as the treatment providers indicate that medication is the most effective treatment, the judge will order forced medication.

There is an interesting side note to yesterday's hearing. According to the court record, Jim Archibald appeared on Lori's behalf. Mark Means was not present. That could be a significant development; it could be that Means simply had some other obligation that he couldn't quickly reschedule, but it could also signal a change in Lori's defense team. We will just have to wait and see.

We know that the continuation of yesterday's hearing was held today, but again, it was a closed hearing, and we do not know what happened.

I went back through questions asked during my September 10, 2021, live broadcast on YouTube with Lauren Matthias on Hidden True Crime. You can find that episode at https://www.youtube.com/watch?v=erCDdKd2bJs&t=2010s. Lauren has great moderators that work hard during those broadcasts, but we never get to all the questions. I'm sure if one person asks a question, others are wondering the same thing, so I decided to respond to a few of them here.

Who benefits if the cases are severed? I think both defendants benefit, but it will likely help Chad the most if his defense is that he was framed. Not having Lori and her attorney in his trial, ready to rebut everything he says, helps him a lot. From an emotional standpoint, I think it helps Chad with the jury. Juries will look more harshly on a mother who kills her children than on an unrelated boyfriend. It's also to Chad's advantage to move forward while Lori is still incompetent. While it's unlikely that Lori would take the stand, her incompetence removes the possibility entirely.

You talked about John Prior reserving his right to challenge the indictment and the grand jury process. What sort of challenges could he make? In every case, the defendant has the right to challenge the indictment process. First, the defendant has the right to assure that the grand jury isn't packed with people who might be prejudiced. Second, the defendant has the right to review the testimony presented to the grand jury, that the process was conducted properly and was fair. Third, the defendant has the right to challenge the indictment document itself. The document must state a crime for which the defendant can be held responsible and must be signed and dated by the grand jury foreperson. It must allege that the crime happened in the jurisdiction and specify when it happened, even if it's just within a range of dates. The grand jury process and the indictment may be perfect, and there may be no basis for a challenge, but Prior can't know that until he receives and reviews the transcript of the proceeding. These kinds of challenges are waived if they aren't filed, so Prior can't afford to miss something.

When will we see Tammy Daybell's autopsy? The public probably won't see the actual document until after the trial. However, I expect there will be extensive testimony at trial about the results.

If Lori is incompetent, why isn't Chad? First, we don't know much about what led Lori's attorney to question her competency, but I've heard rumors concerning behavior in the jail. We have heard nothing that would suggest that Chad has decompensated in jail. We talked a lot about when religious belief tips over into insanity. While Chad's appears deeply invested in his aberrant beliefs, and it seems he may have justified murder based on them, that alone is not sufficient to find that he is incompetent. He appears to understand the court process and be able to aid and assist his attorney.

Could Lori be malingering? It's possible, but as time goes on, less likely. It's difficult, even for someone like Lori, who is a good actress (just remember her chat with Detective Ball on the day of the welfare check), to maintain that level of acting. It isn't uncommon for someone who is mentally ill to decompensate in jail, where all their privacy, control, and autonomy are stripped from them.

What happens if Lori is not restored? In the most extreme case, the criminal charges could be dismissed. But let's remember, Elizabeth Smart's kidnappers, Brian David Mitchell and Wanda Barzee, and Ron Lafferty (the subject of John Krakauer's book, Under the Banner of Heaven) were all eventually restored to competency and convicted, even though it took several years.

Does Chad, as Lori's husband, have any say in her medical treatment? No. It would be inappropriate for him to direct his codefendant's mental health treatment. Because Lori has been committed, she is a ward of the court, and it's the court's decision.

Could the family file a civil suit against Lori and Chad? If you recall, after OJ Simpson was found not guilty for the murder of his wife, Nicole Brown, the Brown family filed a civil wrongful death suit and won. This happened because the standard of proof is lower in a civil suit. The criminal charges had to be proven beyond a reasonable doubt (often expressed as 99% certainty), while a civil suit only needed to be proven that it was more likely than not that OJ caused Nicole's death (often expressed as 51% certainty). While Lori or Chad's family could file a civil suit, at least as it stands now, there is little reason to. Civil suits are about collecting money damages. It's pointless to sue someone who has nothing. Lori has been declared indigent. Chad's only asset was his home, which he has traded to John Prior in exchange for his legal fees. Filing a civil suit may give the family access to the evidence. Still, the state has the right to ask the court to stay any civil actions (and any accompanying release of discovery) until after the criminal case, and the court would probably do so.

Can the insurance company file suit against Chad and Lori? Certainly, but once again, there has to be something to go after. Neither of them has anything, so a lawsuit by the insurance company would probably be throwing good money after bad.

Could the family file a lawsuit against the Chandler Police Department? Perhaps. It's hard to say at this point whether the Chandler police did an adequate job of investigating Alex Cox's role in Charles Vallow's murder. From the big document dump, it appears that they were suspicious of the circumstances surrounding Charles's death but didn't really kick it into high gear until Brandon Boudreaux identified Alex as the person who shot at him. Alex died shortly after that incident. It's easy to jump to the conclusion that if police had arrested Alex in July, he would not have been free to kill the children in September, but it's also possible Chad and Lori would simply have come up with a different plan. There is so much we don't know yet about the case that I think it would be hard to evaluate a civil case.

What would it take to get Mark Means off the case? Are Archibald and Means working together? Are Means and Prior working together? Should John Prior bring in a lawyer who is death-penalty qualified? Do you despise Mark Means? In other words, you want to know about all things having to do with the lawyers. Mark Means and Jim Archibald have been seen going in and out of the jail together, so we must assume they are working together on some level. However, we also saw Archibald file his own discovery request, suggesting that Means isn't sharing with his new pal. Even though their offices are in the same suite, I've been told that Prior and Means are not friends and are not working together. Early in the case, I tried my best to give Mark Means the benefit of the doubt. I've taken cases where I had to spend time learning new procedure and law. It takes time and study but is allowable under the ethics rules. A lawyer must educate themselves about any new areas of the law involved in a case they take and become reasonably qualified. They are not required to know everything, but they must know when and how to access the information they need. It's shocking that Mark Means still does not fully understand the differences between the rules of civil procedure and the rules of criminal procedure. I don't understand Means's attachment to his client or his willingness to risk his license to practice law for her. On a recent episode of The Lawyer You Know on YouTube, Peter Tragos examined Mark Means' website and checked out the claims Means makes. He discovered that many of Means' claims are either untrue or inflated. Falsely advertising his credentials is something a lawyer can be disciplined for by the Idaho State Bar. The Idaho bar does not release information about ongoing investigations, so it's impossible to find out whether Means is presently under investigation. Still, I would be surprised if he is not. It is clear that Means is not competent to represent Lori Vallow. Lori is entitled to a defense by a competent lawyer, but her continued insistence on keeping Means may backfire. The judge has appointed a very qualified attorney for her. If Lori insists on keeping Means and following his advice, it will foreclose any chance she might have of claiming ineffective assistance of counsel on appeal. No, I don't despise Mark Means; there are very few people in the world I despise. I feel disgusted with his arrogance and much of what he does, and sorry that it does not appear that Lori has competent counsel. As we've said before, a defendant is entitled to hire any lawyer they want, and they are stuck with that lawyer's qualifications. That said, John Prior is no Mark Means. Prior is experienced and cautious. I'm sure he is consulting with a death penalty qualified lawyer, and we may very well see him bring someone into Chad's case at some point.

Will there be a new judge if there is a change of venue? Under Idaho law, if the judge grants the change of venue, the decision is up to the judge. He can remain with the case and travel to the new venue or ask the state court administrator to appoint a new judge in the receiving jurisdiction. If Judge Boyce remains on the case, the state will have another judge (often a retired judge) fill in for him in Fremont County while he presides over the case in the new jurisdiction. I expect the judge to grant the change of venue motion. It will be his call whether he remains on the case or not. I expect the case will be moved to Boise, but Idaho Falls and Twin Falls may also be options.

If Chad's trial happens first and he is convicted, can he be compelled to testify at Lori's trial? The short answer is yes. Once Chad is convicted, he can no longer invoke his Fifth Amendment protection against self-incrimination. This is the downside of the cases being severed and Chad being tried first.

Does the indictment language that Chad and Lori had "extreme beliefs" help the defense in bringing a mental disease or defect case, and would Lori have to admit guilt to use mental defect as a defense? The indictment says that Chad and Lori were motivated by their extreme beliefs, but it does not say that their extreme religious beliefs excused their actions in any way. The indictment's use of the language acknowledges that they had extreme beliefs and may have been motivated by them, but it doesn't excuse their behavior. In Arizona, in order to use mental health as a defense, Lori would have to plead "guilty but insane." In Idaho, the only way to use it is to claim Lori was so insane she could not knowingly or intentionally murder a human being.

Will Arizona ever get a crack at Lori? Arizona could ask Lori to be transported to answer charges and require a psychiatric evaluation there. It's unlikely, though. Most of the time, states want the defendant's charges in the first state wrapped up before she's transported to the second state. It's just cleaner and less complicated that way.

I hope you found this question roundup interesting and helpful.