Lori is still competent!
November 17, 2022
Hello Friends!
Let me first share some announcements and then the latest developments in the Vallow/Daybell case.
True Crime Tuesdays. Join me on Tuesdays at 6 pm Pacific for a discussion of the true crime cases in the news. Want to talk about Delphi, Murdaugh, the Piketon Massacre trial, Darryl Brooks, or Michael Vaughn? This is the place to do it! Check out this week’s offering at https://youtu.be/sXLUWrbJ_I8.
Friday TGIF Bring your favorite beverage and join me to talk about the Lori Vallow, Chad Daybell case. Catch the Friday, November 18, 2022, episode at 6 pm Pacific here: https://youtu.be/45OPi1SInlo. No TGIF program on Friday, November 25, 2022, as I will be celebrating all I am grateful for with my best friend and rooting on my Oregon State Beavers in the Civil War against the University of Oregon Ducks. My daughter and future son-in-law both attended the University of Oregon, so we are a mixed family that relishes our in-state rivalry.
True Crime Quilt Guild. If you are a quilter or want to learn, I will start a virtual true crime quilt guild in January 2023. We will start with a sampler quilt, suitable for beginners, and I’ll produce an instruction video for each month’s block. You can download the pattern from Etsy here: https://www.etsy.com/listing/229677900/stepping-stones-sampler-quilt-pattern The cost is $12. Use coupon code THANKYOU22 for 25% off. Choose your own colors and fabrics, and be on the lookout for some sample blocks soon.
Case News. The biggest news this week is that Lori Vallow is competent! As you may recall, Lori’s attorneys filed an affidavit with the court expressing concern about her competency. As a result, the judge ordered an evaluation on October 6, 2022, and the judge reviewed the results in a sealed hearing last week. Following that hearing, Judge Steven Boyce issued an order on November 15, 2022, declaring that Lori is competent and lifting the stay of her case.
Trial Scheduling. You will also remember that the judge heard Chad’s Motion to Sever the cases on November 10, 2022, and has not issued a decision yet on that issue. There has not been a scheduling conference scheduled in either case, so we are waiting for a new trial date for both Lori and Chad. Remember, Lori has still not waived her speedy trial rights. The judge only vacated her January trial date because of the question of her competency. Chad has waived his speedy trial rights, and the January trial date was vacated for him because his attorney filed a motion to postpone his date. I expect the trial(s) to start in the fall of 2023, but there are still quite a few variables. If Lori continues to invoke her speedy trial rights, the court could order the cases severed and reinstate her January date. I can’t see the judge ordering both to be tried in January. He’s already granted Chad’s motion to postpone his part because his attorney isn’t ready. If the judge were to change his mind and order Prior to trial in January, I think it would be an automatic appeal for ineffective assistance of counsel. The next week or two could be very interesting.
Dr. Mozelle Martin. Several of you sent me a video of a handwriting expert named Dr. Mozelle Martin. She appeared on The Interview Room With Chris McDonough. You can view the episode here. https://mail.google.com/mail/u/1/ - inbox/FMfcgzGqRZbjBJWNVdJXJpFXsSstpmxG?projector=1 Dr. Martin’s website is https://forensology.webador.com/. Following up on my discussion of forensic evidence, which you can watch here https://youtu.be/dKKqHUUFK7Q, many of you had questions about how Dr. Martin’s work would fare in court. For those who don’t want to take the time to watch the videos, Dr. Martin claims that she is a forensic psychologist and a handwriting expert and has combined those two disciplines into her specialty. I say claims because there is nothing on her website that indicates where she went to school or what she studied to obtain her Ph.D. I’m not saying she is not qualified; I am only saying I can’t corroborate her qualifications.
Most handwriting experts limit themselves to comparing two writing samples to determine whether or not the same person wrote both examples. That sort of handwriting comparison has been held to meet the Daubert standard. That is not what Dr. Martin claims she can do. Instead, Dr. Martin claims she can analyze a person psychologically based on handwriting. In the video from The Interview Room, she analyzes Lori, Chad, and Alex Cox’s handwriting. Dr. Martin claims she does not research the cases beforehand because she doesn’t want to skew her observations.
While I think her observations are interesting, I can’t see them meeting the Daubert test for admissibility in court. Remember, Polygraphs are not admissible because of their subjective nature. This method of analysis seems equally subjective. It seems to me it has more in common with reading tea leaves than with hard science. Her observations rely on her interpretation of what a particular pen stroke means. There is no independent scientific way to confirm what she says. And, yes, I hear many of you saying, “but Lori, aren’t all psychological evaluations somewhat subjective?” And you would be right, except that psychological testing and evaluations rely on practices and conclusions that are generally accepted in the field. I have not found anything supporting that Dr. Martin is following such practices. I will be interested if anyone else finds something to the contrary.
Lauren and Dr. John Matthias have also been asked about Dr. Martin. Lauren recently released a YouTube Short about their experience. You can see it here. https://youtube.com/shorts/CpLrKwp9q1c?feature=share Lauren points out that the anomalies that Dr. Martin assesses as indications of character were actually artifacts of the camera that photographed the document and were not present on the original. Nonetheless, Dr. Martin used those artifacts to draw conclusions about Chad Daybell’s psychological makeup. From a legal point of view, I have to place Dr. Martin in the same category as fortune tellers and psychics. Now, before you come at me, I am speaking from the legal admissibility point of view. To be admissible in court, a method that claims to be scientific must meet the standards in Daubert and Frye. The Daubert test requires that the judge determine that the information is based on scientifically valid reasoning that can properly be applied to the facts. Frye asks whether the method used is generally accepted by experts in the field. Based on what we know, I think Dr. Martin’s techniques fail both tests.
Interestingly, in a document titled “Selected Handwriting Case Law Since Daubert Showing Complete Defeat For Foes” says this:
“Many case reports are officially designated “not for publication,” and rules of court forbid or restrict their citation as precedents. The reader must take responsibility to ascertain the authoritative nature of any case cited in support of a legal position. Decisions may also have been overruled or modified by the same or higher court. With two exceptions, these cases have all gone to the appeal level and were selected from approximately 300 federal and state cases that have considered expert handwriting evidence post-Daubert. In summary, no trial court that found the expertise itself to be reliable and admissible has been reversed. Individual handwriting expert witnesses were ruled inadmissible or restricted by the trial court, a ruling usually upheld upon appeal, or the specific qualifications of the witness relative to the expert fact at issue was found wanting. However, more recent cases do give support to trial courts that find critics of handwriting expertise to be inadmissible for some reason. Reading between the judicial lines, one can infer a judicious, though unstated, finding that they really did not know what they were talking about.”
All I can say to this is, “hmmm.” Each of the cases she cites is a handwriting comparison case and not a case where personality traits are inferred from someone’s writing. In other words, she’s using apples to prove oranges exist. I leave it to you to decide what you think.
Evidence Rule 404. Next, many of you have asked me to dive into the rules about character evidence, what we call 404(b) evidence and how it might be used in the Vallow/Daybell case. Here is the rule:
Idaho Rules of Evidence Rule 404. Character Evidence; Crimes or Other Acts.
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or trait of character is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) a defendant may offer evidence of an alleged victim’s pertinent trait of character, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608 and 609.
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case, the prosecutor must:
(A) file and serve reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
(B) do so reasonably in advance of trial – or during trial if the court, for good cause shown, excuses lack of pretrial notice.
In general, the rule is in place to prohibit prosecutors from using a defendant’s past behavior to prove the person acted in conformance with their character in the present case. So, for example, the prosecutor can’t present evidence that a defendant was previously convicted of shoplifting to prove she committed the theft she’s currently on trial for.
The issue arose at the hearing on John Prior’s motion to sever the trials. He made clear that he plans to use Alex and Lori’s complicity in Charles Vallow’s death to suggest that they were also responsible for the deaths of the children and Tammy Daybell. Prior made the point, and he is right, that the information he seeks to present isn’t really even a species of 404(b) evidence because it’s being used to prove Chad didn’t commit the crime; someone else did. It’s not even what courts have called “reverse” 404(b) evidence, at least as it applies to Alex Cox because Alex is dead and, therefore, not an indicted co-conspirator. If the cases remain joined, it becomes a problem because the jury could infer that if Lori and Alex acted in a certain way toward Charles, they necessarily acted the same way toward JJ, Tylee, and Tammy.
Two Juries. This leads to another question about severing the trials. The prosecution suggested the two-jury option during the hearing on severing the trials. There have been several recent high visibility cases where the court held a single trial, but each defendant had their own jury. Anyone who has watched any criminal trial knows it’s a choreographed process. The more careful the choreography, the less likely there will be errors for appeal. Assuring the jury in any case only hears admissible evidence means juggling what is presented in front of the jury and what is not. Often it requires the judge to ask the jury to wait in the jury assembly room while objections and offers of proof are heard, and rulings are made. Then, if the judge rules that the evidence is admissible, it’s presented to the jury. Juggling that in connection with two juries is a feat. It takes an experienced, cool-headed judge to manage any complex case. It will be made doubly complicated with two juries, and I have my doubts about whether Judge Boyce is prepared for that eventuality.
A good lawyer or judge is honest about their capabilities and limitations. That’s hard. We’re expected to temper the confidence necessary to appear in court and advocate for our clients with the humility needed to admit when we’re over our heads. None of us gets it right all the time. It’s not a skill we’re born with; we develop it with experience (some of it painful) as we gain wisdom.
I wish each of you a lovely and peaceful Thanksgiving. I hope each of you has much to be grateful for this year. Finally, I want to express my deep thanks and appreciation to each of you for your support, patience, and encouragement.
