Dear subscriber
May 23, 2024
Why, hello there! Yes, it's been a while. Sorry to say that's what happens when I'm writing a book – I run out of steam before I get to the newsletter.
The good news is the manuscript of my book is off to the publisher, except for the last chapter devoted to Chad's trial. That will be submitted once the verdict and sentence are known.
This reminds me that if you preordered, you may receive notices about a change in the release date. That was a glitch with the publisher. When they uploaded their entire fall catalog, it incorrectly updated all the release dates to October 1, 2024, and triggered messages from Amazon that the release date had changed. The publisher has corrected the date back to September 3, 2024. We're trying hard to keep that date, but it might slip by a week or two if Chad's trial doesn't end soon.
You will hear from me soon if you are one of the 106 people who joined the book launch team. Once the publisher creates the final PDF, you will receive it to read before the release date. This is because you agreed to post a review about the book on release day (and thanks for doing that).
Talking about Chad's trial leads to the subject I want to discuss today – Chad's defense. Chad's trial began on April 1, 2024. Much of what the prosecution presented was information we heard at Lori's trial a year ago, with a few significant new developments. Then, on Thursday, May 16, 2024, the prosecution rested in Chad's case. The defense was given the weekend to prepare, and John Prior started putting on witnesses today. His first witness was Chad's daughter, Emma Daybell. Much has been made of the fact that, like Melani Pawlowski and Zulema Pastenes, Emma has radically changed her looks. You may remember Melani, who was blonde when the case began, now has long dark hair and is wearing heavy-framed white glasses. On the other hand, Zulema has lightened her hair since Lori's trial, going from a dark reddish brown to blonde. Emma, whose hair was very short and dark when Chad was arrested, has grown her hair out and lightened it substantially. Many have said she looks more like Lori Vallow than her mother, Tammy.
John Prior asked Emma many questions about Tammy's health, fitness, and use of natural supplements. One supplement Emma talked about was colloidal silver. Emma said her mother added it to water, making it taste metallic. The Mayo Clinic reports that silver is not an essential mineral for the human body, and the claims that it cures everything from cancer to HIV and COVID-19 are unsubstantiated. They report that, in general, colloidal silver does not cause health problems, but if it builds up in the body tissues, it may cause the skin, whites of the eyes, and gums to turn a blue gray. In very rare cases, it can cause kidney damage and seizures. If you recall, extensive toxicology testing was done on Tammy's remains, including for heavy metals. Neither of the medical examiners who participated in Tammy's autopsy reported any overall discoloration of Tammy's skin, eyes, or gums. The only notable skin changes were due to bruising and post-mortem lividity. Emma also said her mother bruised easily and used arnica gel. Arnica is a plant claimed to help with osteoarthritis and muscle pain. Medical experts dispute its efficacy. The primary side effect of using arnica topically is skin irritation. Consuming arnica orally may cause gastric symptoms, including diarrhea and vomiting. There is no indication Tammy took arnica orally.
Lindsey Blake has been doing a masterful job in Chad's case. It is very clear she is leading her team. Her objections are quick and straightforward. It's important to remember that Lindsey's father died unexpectedly during Lori's trial, and Lindsey forged ahead despite the upheaval that must have caused. It's also important to remember that, in many ways, Lori's trial was a rehearsal for Chad's. Nonetheless, she has kept John Prior on his toes and in his lane.
Chad's case is the first time we've had insight into Chad and Tammy's relationship and their brand of Mormonism. Emma admits that Chad and Tammy's views were more fundamentalist than her own. Emma also admits that she sometimes believed in her parents' teachings and relied on their ability to do energy work, muscle testing, and castings. Emma testified that Tammy tried to help Emma with her anxiety. Emma said she has suffered from anxiety most of her life. She told her parents she felt like there was a being with her, an actual person trying to control her. She said her father cast it out using the priesthood, and she instantly felt better. John Prior attempted to bring up the Emotion Code, but the judge found the subject irrelevant. Emma said her mother learned about muscle testing and reflexology from her parents and through a later class. Emma said Tammy was more skilled at using the tools learned in The Emotion Code. Anyone who has read Educated by Tara Westover will see the parallels.
John Prior then steered the direct examination to the day Tammy died. Although Prior offered to take a break for water or to get a tissue, Emma was entirely composed, bordering on emotionless. Emma described Chad as emotionally out of control on that morning. “He may not have had the same romantic relationship with my mother, but I know he valued her as a person, and to see her die was very traumatic.”
An interesting legal issue arose after John Prior asked about their Thanksgiving 2019 family trip to California. Emma said Lori Vallow attended the trip but didn't travel with them. Lindsey Blake made a hearsay objection. John Prior argued that a co-conspirator's statement would come in under a hearsay exception. The judge took the morning recess and heard argument while the jury wasn't present.
For those of you who enjoy deeper legal analysis, this is for you. Hearsay is an out-of-court statement made for the truth of the matter asserted. A statement is not hearsay if it comes in under one of the many hearsay exceptions. The exceptions to the hearsay rule are usually because the circumstances surrounding the statement give it some indicia of reliability.
Let's use as an example two statements: “I heard John said he was going to kill Mary” and “I heard John say he was going to kill Mary.” The first statement is hearsay. We don't know who said it or how it was said. The second statement comes in under a hearsay exception because it is the statement of a defendant or co-conspirator. The reasoning is that if a person makes a statement about their crime, it's probably reliable. The exception is narrow, however. That means not every statement made by a defendant or co-conspirator comes in. The statements must be made in furtherance of the conspiracy; otherwise, there isn't the indicia of reliability. So Lori's statements about her travel plans and why she didn't travel with the Daybell family to California don't relate to the conspiracy. Additionally, Lindsey Blake cited federal case law that stands for the proposition that “an out-of-court statement is not hearsay if it is offered against an opposing party and was made by the party's co-conspirator during and in furtherance of the conspiracy. A co-conspirator's statement is admissible against the defendant if the government makes a showing.” Blake points out that the co-conspirator, in this case, Lori Vallow, is an opponent of the state, not Chad Daybell, so bringing Lori's statements in during Chad's defense case is what the judge calls “problematic.” The judge ruled that Lori's statements could not be admitted.
Chad's son, Garth, was the next witness. Like Emma, Garth was surprisingly stoic. He testified that his mother sometimes “lost her breath” when working in the yard and sometimes had fainting spells. He seemed to describe orthostatic hypotension, a condition common in older women that causes dizziness or lightheadedness when standing due to low blood pressure. John Prior asked him about his experience with the grand jury. Those following the case may recall that a second grand jury was convened months after Chad and Lori's indictment. Because of the secret nature of grand juries, the public was never informed of the purpose of the second grand jury session, but we found out at trial. Garth and possible perjury were the subjects of the second session. Garth claims that he was called before the grand jury to pressure him to change his story about what happened the night Tammy died. He claimed they threatened him with perjury if he did not change his story. His contention seems unlikely, but it did come out at trial that Garth told more than one story about that night. He apparently told his then-girlfriend, now wife, that he found Tammy on the couch. He claimed at trial that information was misconstrued, that he actually said he saw her on the couch earlier in the evening. It was also claimed that he told a friend he found his mother in bed dead, and his father was gone.
Garth also said his parents were more fundamental in their beliefs than he is. John Prior also asked Garth about raccoons. The Daybell property is rural, and we heard several stories about skunks and raccoons being a problem. Garth said they were having problems with raccoons getting into the rabbit food. He said he was testing a new tent and saw a large raccoon one night. He called Chad, who shot the raccoon. Chad told Garth he buried the raccoon behind their silver shed. Garth testified that pest animals were either buried there or added to the compost pile. He said those kinds of animals were not buried in the pet cemetery.
Next, John Prior called Emma's husband, Joseph Murray. He said he and Emma have been married for about seven years and have three children, including a newborn. He said a couple of interesting things. He remarked that he saw Det. Hermosillo on Facebook. We know several people were members of a Facebook group for city or county employees. We also know the defense filed motions about this issue, but the court sealed the documents. Joe also said he first met Lori Vallow the day after Tammy Daybell's funeral in the Daybell home. Joe seemed to share the Daybell opinion of local law enforcement. When the prosecutor asked, “You're not a law enforcement officer, are you?” Joe answered, “I would rather choose any other profession.” Joe also confirmed that Chad gave each of his four children $8,000 each after Tammy's death.
The defense also called Reegan Price, who was neighbors to Chad, Tammy, Emma, and Joe Murray. Reegan's testimony seemed ineffective. She testified that she heard a gunshot from the Daybell property but could not remember any specifics about the date or the circumstances. It seems Prior should have reviewed her testimony with her before she testified, but he may have been limited by time. Preparing trial witnesses would be the job of a second-chair lawyer.
The remainder of the defense witnesses were experts who, for the most part, were of limited assistance to the defense case. Prior's first expert was Dr. Cathy Raven. Dr. Raven is a forensic pathologist who reviewed the autopsy that was conducted on Tammy Daybell. She said there was no anatomical or toxicological cause of death. She said the bruising on Tammy's chest and arms was “nonspecific” and did not support the medical examiner's conclusion that Tammy died by homicide. She opined, instead, that the cause of death should have been categorized as “undetermined.” Surprisingly, she did not mention the pulmonary edema that was observed on the day Tammy died and confirmed by the medical examiner during the autopsy. The existence of the pulmonary edema and the lack of any medical explanation led the ME to his findings. The bruising simply was confirmatory.
Asmir Kararic was one of the Attorney General's investigators who interviewed Melanie Gibb while the AG was handling the case. He testified that although MelG said she got her light and dark determinations from Chad, during his interview, MelG told him he was nice, and she could tell he was a light entity. This may have called MelG's truthfulness into question, but it did little to move the defense case along.
Rick Schmidt was a Rexburg PD officer who testified at Lori's trial but was not called during the prosecution's case against Chad. Prior called him and asked him if, on the morning of the search in Chad's backyard, he was handed a shovel and told to “go find stuff.” He clarified that early in the search, he and several other officers were directed to canvas the property, looking for unusual things. If John Prior intends to argue that the FBI's evidence recovery operation was haphazard and disorganized because of this single witness, he's spitting into the wind.
Patrick Eller was the defense expert on the cell location data. As I've said before, defense attorneys across the country are attacking the FBI's CAST methodology in interpreting the location data. That is not what happened here. Prior's direct boiled down to two points. First, law enforcement did not identify each of the 19 devices that appear in the geofence data trap. When Google is served with a geofence warrant, they return the information with their own internal ID number assigned to each user to protect their privacy. Once the information is returned, the law enforcement agency must then identify which of the hits they want further identifying information. Eller said he was told they didn't get all 19 devices user information was because Google limited the number of users they could request. The second point was that Chad Daybell's device did not register on his property on any of the three days associated with the three murders. As Prior's DNA expert, Greg Hampikian, later testified, “absence of evidence is not evidence of absence.” In this case, the absence of Chad's phone on the property doesn't mean he wasn't there. More likely, it means he turned his phone off.
I want to take a moment to recap some of the prosecution's phone location data, presented by Investigator Nicholas Edwards, because I think we can make some suppositions about what happened the night Tammy Daybell died.
6:13 – 8:24 Between Chad and Lori 6 texts
6:56 – 8:24 Between Lori and Alex 6 texts
8:44 To Alex from Chad 1 text
8:47 to 9:04 Between Lori and Alex 12 texts
8:52 To Lori from Chad 1 text
9:35 To Chad from Alex 1 text
9:59 – 11:12 Between Lori and Zulema 11 texts
10:07 Alex arrives at the LDS church 2.6 miles from Chad's home
10:12 – 10:28 Between Chad and Alex 4 texts
10:22 Tammy is playing games on her phone
10:23 – 10:54 Between Chad and Alex 10 texts
11:28 A single image is deleted from Tammy's phone
11:34 – 11:35 Between Chad and Alex 2 texts
11:46 Alex Cox leaves the church and drives to a hotel in Idaho Falls (about 30 minutes away)
11:53 – 12:09 Alex calls Lori
12:10 Lori to Zulema 1 text
12:35 Chad to Lori 1 text
The significant time is while Alex's phone is at the church near Chad's house. Alex left his phone in his car and walked to Chad's house. We know he was there after 10:54 because that's the last text he and Chad exchanged. Then Chad's phone goes dark, probably because he turned it off. By 11:28, Tammy is dead, and someone deletes something from her phone. At 11:34, Chad and Alex text again. How does this square with the testimony we heard on rebuttal from Garth's friend and coworker Mackay Abegglen? He said Garth told him that on the night Tammy died, he came home and found her hanging off the bed. Her skin was pale, and her lips were blue, and he didn't know where Chad was. Mackay said work at the haunted house usually ended between 12:30 P.M. and 1 A.M. but sometimes ended earlier if there weren't many visitors. Is it possible that Chad was driving Alex back to his car when Garth came home? Or did Chad have another plan to dispose of Tammy's body that Garth foiled by coming home too soon?
The defense's next witness was Dr. Greg Hampikian. Dr. Hampikian is a well-respected expert on forensic DNA. He teaches biology at Boise State University and gives classes to undergraduate criminal justice majors and law students at the University of Idaho's law school in Boise. John Prior examined him at length about how DNA can be deposited—by touch, breath, body fluids, hair, etc. He established two points, which I think he could have established through cross-examination of the state's witnesses. First, Chad Daybell's DNA was nowhere in the samples he reviewed, and second, hair is the easiest to transfer.
After a sidebar where Prior indicated he expected to rest, the judge heard arguments on some motions concerning the state's rebuttal case. The state wanted to call back Det. Ray Hermosillo and Officer Colter Cannon. The defense won one and lost one. The judge said that even though both had been released from their subpoenas and so also released from the order that they not watch any of the livestream, he would allow Hermosillo to testify but would question him about whether he's seen any of the coverage. Colter Cannon was more problematic. The issue is that Emma Daybell insisted that on the night Tammy was shot at, she pulled up a Google image of a paintball gun and showed it to Cannon. Cannon denies that happened. The state was honest with the judge, saying that Cannon knew about Emma's statement because he was watching her testimony and contacted them because he felt his credibility was questioned. The judge declined to let Cannon testify in rebuttal.
The following day, Prior opened with what would be his final witness, Dr. Eric Bartelink. Dr. Bartelink is a professor of anthropology who teaches at Chico State and is an expert on human skeletons burned by fire. He said he examined Tylee's remains. He presented a chart of a human skeleton with the recovered bones highlighted. He testified that probably half of Tylee's bones were not recovered. That means they were either destroyed by the fire or remain on the Daybell property where Emma testified she and her family still live. He said a few things that refute the prosecution witnesses in small ways. But he also revealed some more troubling information. He said he thought Tylee was burned intact. He also said he couldn't determine how long it took her body to burn, but in tests, it takes substantial time and combustible material to reduce a skeleton to the state Tylee's bones were. He could not say if her body could have been reduced to that state in two hours. He also said he identified 18 sharp force defects in the bones and said a minimum of 16 of those impacts were perimortem (before death). He also said he could not determine with certainty where she was burned or when the bones were deposited in Chad's backyard. Remember, this expert only analyzed the bones; he did not consider the analysis of the tissue and organs in his assessment.
John Prior informed the court Dr. Bartelink was his final witness. The judge inquired whether Chad planned to testify. He went over Chad's rights, and Chad confirmed he had discussed it with his lawyer and, as expected, decided not to testify.
The defense rested, and the state started its rebuttal case. They estimated it would take one and a half to two days. I expect the rebuttal case will end tomorrow, and the court will give everyone the three-day weekend off and begin jury instructions on Tuesday. Both sides look exhausted, but once a verdict is returned, they must swing into action as the judge convenes the penalty phase. I don't expect the judge to sequester the jury for deliberations during this phase, but once the penalty phase begins by law, the jury must be sequestered.
At the penalty phase, the jury unanimously must find beyond a reasonable doubt that at least one aggravating factor applies to the case. The possible aggravating factors are:
The defendant committed the murder for remuneration.
The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity.
By the murder or circumstances surrounding the murder, the defendant exhibited utter disregard for human life.
The conduct before or, during or after the murder exhibited the propensity to commit murder which will probably be a continuing threat to society.
If the jury finds at least one aggravating factor, they move to the second question. Are there any mitigating factors that would make the imposition of the death penalty unjust? If they find no, then the judge must sentence Chad to death.
Look for more newsletters as the case goes to the juries.
