Is Lori Competent? January 17, 2022
January 17, 2022
Hello Friends:
Happy Martin Luther King Jr. Day, and Happy Birthday to both Betty White (who would have been 100 today) and our own Lauren Matthias of Hidden True Crime (who is nowhere near 100). Back before COVID, I liked to treat MLK Day as a day to do some kind of public service. Today, I combined the two and donated to a pet rescue organization in the name of Betty White, who loved animals. To quote MLK Jr., “If I cannot do great things, I can do small things in a great way.” So I hope you find some small way to make the world a better and more just place today.
Now on to some rampant semi-educated speculation about Lori Vallow Daybell. Remember, I could be wrong, but…
On January 13, 2022, interesting filings surfaced in Lori’s case. The first is titled “Motion to Seal.” The second is an Order “sealing IDHW Competency Report.” The Third is titled “Status Report Forensic Mental Health Evaluation.” I believe this indicates that Lori Vallow Daybell is now competent. So let’s look at the clues.
We start with the Idaho law on competency. That’s Idaho Statute 18-212. The statute only requires a progress report when the commitment is ending. The treatment provider is required to evaluate the defendant when they are admitted, to provide the court with a report at the end of the initial 90-day commitment, and, if the commitment is extended, at the end of the additional 180 days. The order to extend Lori Vallow Daybell’s commitment by 180 days was entered on September 23, 2021. Therefore, her 180 days will expire on March 22, 2022.
The statute also requires, “If at any time the director of the facility to which the defendant is committed determines that the defendant is fit to proceed, such determination shall be reported to the court.” So, according to the statute, reports are required at the end of the first 90 days, the end of the additional 180 days, or when the defendant becomes competent.
TaDa! Hence the surmise that Lori is now competent. Now, the statute doesn’t say the treatment provider can’t provide interim reports, but how many government institutions do you know that provide more than they are required? I can also report that I’ve received confirmation from an Idaho lawyer familiar with the system of restoring competency in criminal cases (and who is not Mark Means – I said familiar, remember?). This person tells me that in their experience, these reports only come at the end of the statutory commitment periods OR when the defendant had been restored before that period ended.
I think we can therefore make an educated guess that Lori Vallow Daybell has been restored to competency. And that raises many more questions.
If Lori’s continued competency relies on her taking medication, can she stop taking her meds? No. The judge ordered her to take medication, and I believe the treatment provider was permitted to force medication. Lori will be ordered to continue to take her medication until all her charges are adjudicated.
What happens next? There are a couple of hearings set in Chad’s case. First, there is a hearing set on January 27, 2022, and another on March 18, 2022.
Let’s look at the January 27, 2022 hearing first. That one is to hear argument on John Prior’s request for extra time to file certain motions under the ICR 12. These are motions on procedural grounds, and there is usually a time limit on filing them. Here is the relevant rule: (b) Pretrial Motions. Any defense objection or request which can be determined without trial of the general issue may be raised before the trial by motion. The following must be raised before trial:
(1) defenses and objections based on defects in the prior proceedings in the prosecution;
(2) defenses and objections based on defects in the complaint, indictment or information (other than that it fails to show jurisdiction of the court or to charge an offense, which objections may be made at any time during the pendency of the proceedings);
(3) motions to suppress evidence because it was illegally obtained;
(4) request for discovery under Rule 16;
(5) request for a severance of charges or defendants under Rule 14; or
(6) motion to dismiss based on former jeopardy.
(c) Motions to Suppress. A motion to suppress evidence must describe the evidence sought to be suppressed and the legal basis for its suppression sufficiently to give the opposing party reasonable notice of the issues.
(d) Motion Date. Motions under Rule 12(b) must be filed within 28 days after the entry of a plea of not guilty or seven days before trial whichever is earlier. In felony cases, motions under Rule 12(b) must be brought on for hearing within 14 days after filing or 48 hours before trial, whichever is earlier. The court may shorten or enlarge the time and, for good cause shown or for excusable neglect, may relieve a party of failure to comply with this rule.
(e) Ruling on Motion. A motion made before trial must be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. Where factual issues are involved in determining a motion, the court must state its essential findings on the record.
(f) Effect of Failure to Raise Defenses or Objections. Failure by the defendant to raise defenses or objections or to make requests that must be made prior to trial, or at the time set by the court pursuant to subsection (d), or prior to any extension of time granted by the court, constitutes waiver of the defenses, objections or requests, but the court, for cause shown, may grant relief from the waiver.
John Prior is doing his best to preserve his client’s right to challenge the complaint, indictment, or information as outlined in (2). In general, motions not filed within 28 days of the entry of the not guilty plea are waived. But Prior filed a motion to extend that time on June 21, 2021, and asked for the grand jury transcript on July 21, 2021. The judge ordered the transcript prepared on August 6. 2021. Prior has continued to ask for more time, based on the fact that he just received the transcript of the grand jury on November 5, 2021. I think this extension will be allowed, and we should see any relevant motions from Prior shortly after.
Now to the March 18 motions. There are two of them to be heard on that date. The first is Rob Wood’s motion for the court to reconsider bringing in a jury rather than changing the venue. I think this is a nonstarter. First, Judge Boyce was specific in the pretrial conference for the change of venue motion, that he wanted to be presented with cost comparisons for what Wood was suggesting. When Wood appeared at the hearing, he was unprepared and didn’t give the judge any information to persuade him it was a good alternative. Now he wants a second bite at that apple. The law favors finality, and the court has gone ahead with plans for holding the hearing in the new venue. I don’t see the judge changing his mind now.
The second motion is John Prior’s motion to sever the trial. The motion was filed on September 7, 2021. It appears the court was holding off on setting a hearing because of Lori’s incompetence. The fact that the hearing has been set is further indication that Lori is competent.
Motions for joinder are about efficiency. Motions to sever are about fairness and avoiding undue prejudice to a codefendant. There is no question that a joint trial would be more efficient for the court and the prosecution, but trying the two defendants together could prejudice one or the other. I think the judge will order the trials severed. If he does, I think he will leave Chad's January 9, 2023 trial on and set Lori’s trial immediately after. I also believe if Chad is tried and convicted first, Lori may try to cut a deal. The prosecution will have to weigh whether they think they can get a death penalty conviction based on what they’ve learned in Chad’s trial and penalty phases. And yes, it could result in an uneven and potentially unfair result where Chad receives the death penalty, and Lori makes a deal for life without the possibility of parole.
Can they have a joint trial with two juries? I have heard of this being done, but I think it’s rare. It’s hard to see how it would keep prejudicial information from being heard by one or the other jury. It would be a logistical nightmare that could easily lead to grounds for an appeal. Two separate trials will be cleaner.
Will Lori’s mental health issues be brought up in court? Lori’s period of incompetence isn’t relevant to whether she committed the crimes, so her current mental state won’t be brought up. Furthermore, since Idaho doesn’t allow insanity defenses, I doubt Lori’s mental state at the time of the crimes will be brought up either.
If the trials are severed, can they still turn on each other? Absolutely. Additionally, if the trials are severed, Chad could be required to testify in Lori’s trial if his case is fully adjudicated, since he would no longer have a Fifth Amendment right not to incriminate himself.
Finally, I still have plenty of wristbands, so keep those self-addressed envelopes coming! Mail them to:
1042 N. Higley Rd., #102-446
Mesa, AZ 85205
