Insanity and Idaho - What Lori Might Do
Hello, Friends. This newsletter will be in two parts and somewhat technical, so throw on your ghillie suit and join me in the weeds. Look for the second installment in your email tomorrow.
It should come as no surprise to you that mental health and the law often intersect. This week, newsletter subscriber, Mary Jo DiBella, raised some interesting questions for me in an email. Her question is, when does religious belief become insanity, and when does that insanity excuse criminality, including murder?
It’s a great question, and it’s at the heart of the Vallow/Daybell case. If we believe, as I do, that Lori and Chad believe deeply in the religious doctrine they espouse, then we have to ask when does religious belief become insanity?
History is littered with people, from Joan of Arc and the knights of the Crusades to our own pilgrim mothers and fathers, who killed in the name of their religious beliefs.
We need to take a look at the state of the law regarding insanity. It’s is a very broad area of inquiry, so I’m narrowing it down to the law in Idaho and Arizona.
Let’s start with Idaho. As we all know, the defense of insanity is not available in Idaho. Still, a defendant may be allowed to present evidence of mental disease or defect to prove that they were incapable of forming the intent necessary to commit the crime.
Here is the Idaho law:
18-207. MENTAL CONDITION NOT A DEFENSE — PROVISION FOR TREATMENT DURING INCARCERATION — RECEPTION OF EVIDENCE — NOTICE AND APPOINTMENT OF EXPERT EXAMINERS. (1) Mental condition shall not be a defense to any charge of criminal conduct.
(2) If by the provisions of section 19-2523, Idaho Code, the court finds that one convicted of crime suffers from any mental condition requiring treatment, such person shall be committed to the board of correction or such city or county official as provided by law for placement in an appropriate facility for treatment, having regard for such conditions of security as the case may require. In the event a sentence of incarceration has been imposed, the defendant shall receive treatment in a facility which provides for incarceration or less restrictive confinement. In the event that a course of treatment thus commenced shall be concluded prior to the expiration of the sentence imposed, the offender shall remain liable for the remainder of such sentence, but shall have credit for time incarcerated for treatment.
(3) Nothing herein is intended to prevent the admission of expert evidence on the issue of any state of mind which is an element of the offense, subject to the rules of evidence.
(4) No court shall, over the objection of any party, receive the evidence of any expert witness on any issue of mental condition, or permit such evidence to be placed before a jury, unless such evidence is fully subject to the adversarial process in at least the following particulars:
(a) Notice must be given at least ninety (90) days in advance of trial, or such other period as justice may require, that a party intends to raise any issue of mental condition and to call expert witnesses concerning such issue, failing which such witness shall not be permitted to testify until such time as the opposing party has a complete opportunity to consider the substance of such testimony and prepare for rebuttal through such opposing expert(s) as the party may choose.
(b) A party who expects to call an expert witness to testify on an issue of mental condition must, on a schedule to be set by the court, furnish to the opposing party a written synopsis of the findings of such expert, or a copy of a written report. The court may authorize the taking of depositions to inquire further into the substance of such reports or synopses.
(c) Raising an issue of mental condition in a criminal proceeding shall constitute a waiver of any privilege that might otherwise be interposed to bar the production of evidence on the subject and, upon request, the court shall order that the state’s experts shall have access to the defendant in such cases for the purpose of having its own experts conduct an examination in preparation for any legal proceeding at which the defendant’s mental condition may be in issue.
(d) The court is authorized to appoint at least one (1) expert at public expense upon a showing by an indigent defendant that there is a need to inquire into questions of the defendant’s mental condition. The costs of examination shall be paid by the defendant if he is financially able. The determination of ability to pay shall be made in accordance with chapter 8, title 19, Idaho Code.
(e) If an examination cannot be conducted by reason of the unwillingness of the defendant to cooperate, the examiner shall so advise the court in writing. In such cases the court may deny the party refusing to cooperate the right to present evidence in support of a mental status claim unless the interest of justice requires otherwise and shall instruct the jury that it may consider the party’s lack of cooperation for its effect on the credibility of the party’s mental status claim.
The important analysis is in the exception: a defendant can present evidence of mental disease or defect to prove that they were incapable of forming the intent necessary to commit the crime. Let’s look at Idaho’s definition of murder:
18-4001. MURDER DEFINED. Murder is the unlawful killing of a human being including, but not limited to, a human embryo or fetus, with malice aforethought or the intentional application of torture to a human being, which results in the death of a human being.
That raises the question, what is malice?
18-4002. EXPRESS AND IMPLIED MALICE. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
So malice is unlawfully taking the life of a fellow creature with deliberate intention. Interesting.
One of the jobs of a defense lawyer is to parse language and dissect statutes. For example, why did the Idaho legislature define malice as taking the life of a fellow creature rather than a human? Was it their intent to assure the statute included human fetuses, or did they intend to include zombies? Yes, lawyers really do this sort of deep dive into legislative intent, including reading the legislative history of a particular law and listening to recordings of legislative testimony and discussion.
Central to all criminal statutes is the mental state, which lawyers refer to as the mens rea. For most acts to be a crime, they must be committed with the necessary mental state. The common mental states are knowing, intentional, deliberate, and reckless. There are a handful of crimes that do not require a mental state. For example, in many states, there is no mental state required for the crime of being a felon in possession of a firearm. In other words, if you are a felon and are in possession of a firearm you have committed the crime. There is no requirement that you do it intentionally. If your friend puts a gun in your car, it’s still a crime. Proving mental state – that the defendant intentionally or knowingly committed the crime – is the first order of business for the prosecutor.
Here is the problem for prosecutors: it has been widely disseminated online that Lori was diagnosed with adult-onset schizoaffective disorder. I consulted the Cleveland Clinic’s website for some basic definitions. Schizoaffective disorder combines the features of two conditions, schizophrenia and mood disorder.
Schizophrenia is a psychosis where the person may lose touch with what is real and be unable to organize their thoughts so that the world seems like a jumble of thoughts, sounds, and sights. About one in 200 people will develop schizophrenia, and while it is more common in men in their teens and twenties, it can develop for anyone and at any stage of life. Some symptoms include seeing, hearing, or even smelling things that are not real, and having odd beliefs that are not based in fact, being unable to make sense of the world, and having moods that do not fit with events or circumstances. The diagnosis requires that the patient experience hallucinations, delusions, or disorganized speech for at least one month and exhibit gross disorganization, diminished emotional expression, or levels of interpersonal relations and self-care that are significantly below what they were before symptoms occurred.
When Schizophrenia is combined with a mood disorder, the diagnosis becomes a schizoaffective disorder. The most common mood disorders are bipolar disorder and depression. We have plenty of indications that Lori suffered from depression. Some friends report there were times Lori didn’t get out of bed. We also have reports that her mood was sometimes manic. While this is all anecdotal, it supports the idea that she may have schizophrenia and bipolar disorder. Both conditions are considered disorders in brain chemistry and are usually treated with a combination of medications.
The human brain is a miraculous and largely undiscovered territory. We know that each individual brain has its own unique chemistry. There is no test yet to determine which drug is the one that would work best with a specific individual’s brain chemistry. That means treatment is a series of trials. Doctors try a particular drug that has had success for other patients with similar diagnoses and wait to see if it helps. Most patients end up on a cocktail of psychotropic drugs that are adjusted as their psychiatrist evaluates the effectiveness. This is what is currently happening to Lori. It appears that the treatment professionals are not yet satisfied that they have found the winning combination for Lori.
If Lori is suffering from this disorder, how long has she had it, and what effect has it had on her life and her decision-making? And here we come to the question of religiosity versus insanity.
Where is the line? Most mental health conditions can’t be diagnosed with blood tests or brain scans. Instead, they’re diagnosed by observing a person’s behavior. In 2006, biologist Richard Dawkins characterized all belief in God as delusional in his book, The God Delusion.
The story of Ron Lafferty is illustrative. Ron and his younger brother, Dan, were the subject of John Krakauer’s book, Under the Banner of Heaven. The pair murdered their brother’s wife and their 15-month-old niece after Ron claimed God instructed them to “remove” several people. The Laffertys were members of an LDS fundamentalist sect. Ron’s attorneys questioned his competency before his first trial, but the trial judge found him competent. An appeal later overturned that conviction and sent it back to the trial court, where Ron was found to be incompetent and sent for restoration treatment. Three years later, Ron Lafferty was found competent once again and was retried, convicted, and sentenced to death in 1996. In August 2019, the 10th Circuit Court of Appeals refused to hear Ron’s appellate claims, thereby exhausting the last of his appeals. Lafferty died of natural causes in November 2019 before the state could execute him.
Similarly, Elizabeth Smart’s kidnappers, Brian David Mitchell and Wanda Barzee, claimed to have been directed by God to kidnap and marry 14-year-old Elizabeth. Mitchell and Barzee were charged in March 2003, but questions of whether they were competent delayed their court proceedings for years. Finally, Barzee was convicted in November 2009, and Mitchell was convicted and sentenced to two life sentences in December 2010.
In both cases, their extreme religious beliefs were considered indications of their incompetence. Yet, despite that, both were deemed competent when they committed the crimes and were restored to competency and convicted.
The difference? The defendants in those cases may believe God told them to commit their crimes, but neither pair believed their victims were no longer human.
Lori believed God was speaking to her and directing her actions. In one of the recordings Lori made with friends, she says, “I’ll just start by saying I am a personal witness of the resurrected Jesus Christ. I am his advocate; I am his friend. He is with me….” Those familiar with the language used by LDS members confirm that the meaning of this statement is that Lori claims Jesus has appeared to her. In the phone call Melanie Gibb recorded with her, Lori compares herself to the Book of Mormon figures of Alma and Moroni. She goes on to defend her claims that she has been in the presence of Jesus and Moroni, saying, “God knows it, and I will never deny him.” In the recorded conversation Melanie Gibb had with her Facebook friend, Shari Dowdle, Melanie tells Shari that when she questioned the wisdom of Lori canceling Charles’s airline ticket and hiding his truck, Lori assured Melanie that God had directed her to do those things.
It’s clear that Lori is convinced that she has spoken directly to, and receives direction from God. She believed she spoke directly to Jesus and God’s messenger, the angel Moroni. It raised the question: is this the testimony of a person who God has touched, or the delusion of someone with serious mental illness.
If schizoaffective disorder did indeed make Lori believe that she is a translated being, there’s ample evidence that her belief in her exaltation predated the deaths of Charles, Alex, the children, and Tammy. For example, in the bodycam footage of police talking with Charles Vallow, Charles tells them Lori believes she is a translated being and can kill him with her powers. In addition, we know from witnesses that Alex Cox was persuaded that Lori and Chad did, in fact, have some special power and that they did communicate with God.
Proof that Lori’s mental illness predated the crimes and may have been much more severe than anyone suspected is at the center of her defense, even in Idaho. If the defense can build a case that Lori was delusional and believed God was telling her that her husband and children were dark spirits, it’s only a quick jump to the claim that Lori did not have the mental capacity to form the intent.
If I were the defense, this would be my narrative:
Lori believes to her core that she can talk to God, that he appears to her personally, and that He directs her actions.
Lori read Chad’s books and believed that (as Chad said) his stories were thinly veiled prophecy. God affirmed that everything in Chad’s books would come to pass.
God told Lori that she and Chad needed to be together to complete God’s mission.
Lori is an exalted being, chosen to help get God’s chosen people through the tribulations of the end times so that Jesus can come again and they can all build their kingdom in the New Jerusalem.
God told Lori the tribulation would begin in July 2020 to prepare the world for the return of Jesus unless Satan delayed it. He told her Satan’s demons are at work on the Earth, trying to delay and disrupt the second coming of Jesus. God told Lori it was her job to prevent Satan from delaying the return of Jesus.
Satan’s demons can displace a person’s spirit, take over the body and force it to do Satan’s work. When that happens, the body is no longer human; the person’s spirit is in limbo, and the body goes dark.
Only a few of God’s chosen can discern when a body has gone dark. Once the body goes dark, the only way to free the person’s spirit from limbo is to kill the body.
Charles, Tylee, JJ, and Tammy had all gone dark; because Lori and Chad were so powerful, Satan had to surround Lori and Chad with dark spirits to interfere with their mission.
Just as God told Isaac to sacrifice Abraham in the Old Testament, God told Lori that she was required to sacrifice her children. However, God assured Lori these weren’t really her children and that by killing their bodies, she was saving them. Furthermore, God promised her that when Jesus returned, the children would be resurrected.
Alex Cox believed absolutely that Lori was exalted and that God spoke to her. He believed her when she told him Tylee and JJ had become dark, and their demons were trying to disrupt Lori and Chad’s essential mission. Lori directed Alex to kill the children. Chad knew about the plan and helped Alex bury the bodies.
When Lori directed Alex to kill Charles, Tylee, JJ, and Tammy, she believed without reservation that they were not human.
THEREFORE – this is where the lawyer connects the facts to the law – Lori cannot be guilty of killing a human being with malice aforethought because she believed they were not human. In other words, she was so mentally ill she could not form the intent to commit the crime of murder. Bingo. This is the only way in which mental illness becomes a defense in Idaho.
Don’t shoot the messenger. I am sure many of you are dismayed at the idea the Lori might escape culpability because she is insane. What I layout is possible, but not inevitable. It is a narrow needle for the defense to thread.
First, it requires that Lori consent to the defense because even semi-competent defendants are entitled to direct their defense. If Lori takes the position that claiming insanity is denying God (something she told Melanie Gibb she would never do), then she could forbid her lawyers from raising the defense. If Lori consents, the defense will require lining up the evidence and the experts in a way that will convince a jury that at the time of the crimes, she was too mentally ill to form the necessary mental state to kill a human being with malice aforethought.
The defense will also have to get over the hurdle of Clark v. Arizona, Clark v. Arizona, 548 U.S. 735 (2006), which I will discuss in tomorrow’s installment of the newsletter.
When we look at what may be happening in Lori’s defense team, it’s not certain that they will be able to cobble together such a defense. I have tried to give Mark Means the benefit of the doubt, but his actions continue to prove he is utterly incompetent and entirely devoid of judgment. It’s also clear that he remains on the case because Lori wants him there, though no one is clear why. It appears to me that Lori and Means have a hold on one another. It seems to me that the only way Mark Means intends to leave the case is if he is disbarred, and we have yet to see any indication that Jim Archibald and Means are working together.
Tomorrow, look for the next installment, where I will discuss the law in Arizona and how Lori’s mental capacity will affect the charges there. It’s a busy week; you can also expect my regular Friday newsletter discussing the week’s developments and a YouTube Live on Friday at 7 pm PDT for TGIF with Lauren Matthias from Hidden True Crime.
