Let’s Talk Law!

Many people have questions about how the law and criminal trial procedures relate to this case.  Let’s answer a few.

First, we'll need to cover a little basic information.  When a prosecutor analyzes a case, she looks for issues – those places where the law and the facts connect. Issue spotting is a critical skill that comes from an in-depth knowledge of the law, especially the criminal statutes in their jurisdiction. Prosecutors will often charge the highest crime they think they can prove, to leave room for negotiation.  Defense attorneys refer to this as “charge inflation,” although sometimes they use other terms, not fit for polite audiences.

Mental State.  Every crime begins with a required mental state.  In general terms, a crime is committed intentionally, knowingly, recklessly, or negligently.  The required mental state usually indicates the seriousness of the crime.  If you intentionally murder someone, that suggests some level of planning.  Knowingly murdering someone suggests that you know you are killing someone but may not have planned it until the split second before it occurred. If you recklessly kill someone,  you commit an act that you knew had the possibility of causing someone’s death, while negligence suggests that you didn’t consider the risk of death.  These are loose definitions because every jurisdiction is different.

Aiding, Abetting, or Being an Accessory.  Under Idaho law (IS 18-204) “All persons concerned in the commission of a crime, whether they directly commit the act constituting the offense or aid and abet in its commission, or, not being present, have advised and encouraged its commission…are principals in any crime so committed.”  That means that even if you didn’t take the action that ended someone’s life, you are equally guilty if you helped, advised, or encouraged the act.

What Can Lori Vallow and Chad Daybell be Charged With?
 
Murder of the First Degree.  The elements of the crime require that it be intentional: “poison, lying in wait, torture, or any kind of willful, deliberate and premeditated killing, OR a killing during the commission or the attempt to commit aggravated battery of a child less than age 12, arson, rape, robbery, burglary, kidnapping.  All other kinds of murder are of the second degree.” (IS 18-4003) We don’t know the mechanism of death. If Lori and/or Chad were directly involved in pulling the trigger or administering the poison, they would be charged with Murder of the First Degree. If they were present but didn’t take an action that resulted in death, they will still be charged with Murder of the First Degree.  If they advised or encouraged the commission of the killing, they would be charged with Murder of the First Degree. If JJ was killed either by Lori or by someone else (probably her brother, Alex Cox) during an aggravated battery (for instance,  if JJ was killed in the course of beating him for some perceived bad behavior), Lori could be charged with Murder of the First Degree. This statute also applies to actions to dispose of a body and cover up the crime.  If Lori helped plan and encouraged Chad or Alec to poison Tammy Daybell, she will be charged with Murder of the First Degree.

Penalties for Murder of the First Degree.  The penalty is either death or imprisonment for life with parole possible after ten years.  Idaho does not have life without the possibility of parole, also known as “true life.”  There are seven men and one woman on death row in Idaho.  Only three people have been executed since the death penalty was reinstated in 1977. These numbers make the death penalty, in this case, unlikely.  With the possibility for parole after ten years, if she were convicted, she could be out of prison in ten years.

There are a variety of other charges that could be brought, but it’s hard to speculate on what else may surface because we don’t have access to police reports that lay out the facts.  A sentencing judge could stack sentences where possible so that they serve sentences consecutively (one after the other) rather than concurrently (all at the same time).  There are legal limitations on which sentences can be imposed consecutively, because of a legal concept called merger, which says that if convictions for several crimes arise out of the same criminal incident, they merge for sentencing.  As an example, if Chad is convicted of the murder of Tylee and also convicted of the crimes of tampering with evidence and abuse of a corpse, all of those actions rise out of one criminal event. Even though he might receive sentences on three separate charges, the sentences would merge and run concurrently. If Chad were also convicted of killing JJ, that sentence could be stacked consecutively because it arose from a separate criminal event. Sentences are usually negotiated as part of a plea bargain.  

Plea Bargaining is a widely accepted part of the criminal justice system.  It tries to balance a person’s right to a trial against the need to use public resources wisely.  The idea is that if a person commits a crime that the prosecutor can reasonably prove, an agreement to allow the defendant to plead guilty saves time and resources for the prosecutor, the public defender and the court. Most cases are resolved through a plea. The courts offer many programs where a person who commits domestic violence, drug or alcohol offense can earn a complete dismissal of their charges by completing a treatment program. There are programs to quickly deal with shoplifting and other small theft cases by offering civil compromises and other forms of restitution.  In the case of serious crimes, the plea bargain process can be a bit like a dance, or a tactical exercise. Much will depend on the strength of the evidence.  If the prosecutor has substantial evidence against Lori, she may try and bargain to obtain information about other people’s involvement.  For instance, the prosecutor may offer not to seek the death penalty in exchange for a plea and an agreed-to sentence if Lori discloses the extent of other people’s involvement.

Timing. There are several reasons the prosecutor won’t rush to charge the murders. First, Lori and Chad aren’t going anywhere.  Both Lori and Chad are in jail, and bail has been set for both at a million dollars. Bail is intended to ensure a person shows up for court.  If you don’t’ show up, you forfeit the bail.  Early in the case, when Lori was seeking to have her bail reduced, we learned that Idaho still uses bail bonds. A person must find a bail bond willing to take the risk, must post ten percent of the bail amount with the bond company, and put up enough property to ensure that if the defendant jumps bail, the bond company can seize the property to repay the full amount of the bail. In this case, Lori and Chad would each have to pay $100,000 cash and pledge $900,000 in property. Lori was unable to find a bond company that would take her on, and neither she nor Chad has $900,000 worth of property to pledge. Lori is charged with contempt of court and abandoning her children. I suppose she could argue that she couldn’t abandon her children if they were already dead, but that seems like an argument likely to draw an unpleasant conclusion. Chad is in on charges that he tampered with or destroyed evidence of a crime. Prosecutors only get one chance to build a case. If either Chad or Lori is tried and found not guilty, they can’t be tried again. Prosecutors are carefully and methodically building a case. As they piece the story together, they are also discussing the case with the defense attorneys, exploring the possibility of their client’s cooperation. Criminal cases come with some of the most restrictive deadlines in the court system. People held in jail are entitled to a speedy trial. Generally, they must have a trial within 60 days unless they waive the right. Prosecutors may not even get the results of the investigation, including lab results in 60 days, so they buy time where they can. Arresting a person on a different and less serious charge is a common strategy to buy more time. That way, the prosecutor can carefully build a case while she has access to the suspect, and they can’t run, destroy evidence or commit suicide (unless they are Jeffrey Epstein) before she charges them with more severe crimes.

Confessions and the Right to Remain Silent. Our Constitution guarantees citizens the absolute right not to incriminate ourselves. No one can be compelled to be a witness against themselves. That said, it’s human nature to run our mouths, usually before we engage our brains, and that works in favor of the police. Because of that, there are some constitutional safeguards. Once a suspect asks for a lawyer, police have to stop questioning her. The right to remain silent and the right to an attorney go hand in hand. If a suspect invokes her right to an attorney, the attorney is brought in to advise the client about how to proceed with an interrogation. From that point, law enforcement and prosecutors must only question that person with their attorney present. Only the suspect has the right to invoke or waive their right to remain silent. Police interrogation is intended to get suspects to talk, and it often works. The US Supreme Court has ruled that police can lie in interrogations.  They can tell a suspect they have information or evidence they don’t have.  They can tell a suspect that a codefendant has already rolled over, or that they found a weapon when they have not, or that the victim is still alive when he is not. It’s the suspect’s responsibility to continue to exercise their right to remain silent in the face of that interrogation. Because of this, the court has also ruled that some other evidence must corroborate confessions. That evidence can be the statement of some other witness or some piece of physical evidence. We don’t know what, if anything, Lori or Chad has said to police.  They are both educated and smart, so we would presume they have remained silent.  We also know human nature weighs on the side of confession. As proof, the news is full of stories about people who confess to crimes they didn’t even commit. Society views murder, and especially the killing of children, as heinous. Police are trained to exploit weak spots, and even the coldest of killers may feel guilt.  That guilt is something the police can capitalize on. 

Lori Hellis is an author and an experienced criminal attorney.  Her book, Children of Darkness and Light, The Lori Vallow Story, is expected out in 2021.