More about incompetence

Well, hello, friends!

Let me guess – you’re feeling a little uninspired and unfocused this week? Yup, me too. When I was practicing, we called it a case hangover. It happened after you’d had a big trial, prepared for a trial that didn’t happen because it was postponed or settled or had a big development in a case. It happens when you’ve been so completely focused on something for an extended period, and suddenly the intense part is over and you feel let down.

There are things to talk about, though. Let’s start with Lori and her incompetency. Here is my understanding of the sequence of events. We began getting inklings that something was amiss during the March 8, 2021 hearing. The intended purpose of the hearing was to deal with objections to experts that were scheduled to testify at an upcoming hearing on the change of venue motion. Instead, Judge Boyce had a lengthy private conference with all the lawyers, which was recorded and sealed. Later, an ex parte order was filed under seal. We now know that ex parte order was an order for a psychological evaluation.

I want to break this down. Be warned, we’re about to get in the weeds, and this newsletter will be LONG. Idaho law says:

18-210. LACK OF CAPACITY TO UNDERSTAND PROCEEDINGS — DELAY OF TRIAL. No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted, sentenced or punished for the commission of an offense so long as such incapacity endures.

18-211. EXAMINATION OF DEFENDANT — APPOINTMENT OF PSYCHIATRISTS AND LICENSED PSYCHOLOGISTS — HOSPITALIZATION — REPORT. (1) Whenever there is reason to doubt the defendant’s fitness to proceed as set forth in section 18-210, Idaho Code, the court shall appoint at least one (1) qualified psychiatrist or licensed psychologist or shall request the director of the department of health and welfare to designate at least one (1) qualified psychiatrist or licensed psychologist to examine and report upon the mental condition of the defendant to assist counsel with defense or understand the proceedings. The appointed examiner shall also evaluate whether the defendant lacks capacity to make informed decisions about treatment. 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.
(2) Within three (3) days, excluding Saturdays, Sundays and legal holidays, of the appointment or designation, the examiner shall determine the best location for the examination. If practical, the examination shall be conducted locally on an outpatient basis.
(3) If the examiner determines that confinement is necessary for purposes of the examination, the court may order the defendant to be confined to a jail, a hospital, or other suitable facility for that purpose for a period not exceeding thirty (30) days. The order of confinement shall require the county sheriff to transport the defendant to and from the facility and shall notify the facility of any known medical, behavioral, or security requirements of the defendant. The court, upon request, may make available to the examiner any court records relating to the defendant.
(4) In such examination, any method may be employed that is accepted by the examiner’s profession for the examination of those alleged not to be competent to assist counsel in their defense.
(5) Upon completion of the examination, a report shall be submitted to the court and shall include the following:
(a) A description of the nature of the examination;
(b) A diagnosis or evaluation of the mental condition of the defendant;
(c) An opinion as to the defendant’s capacity to understand the proceedings against him and to assist in his own defense;
(d) An opinion whether the defendant lacks the capacity to make informed decisions about treatment. “Lack of capacity to make informed decisions about treatment” means the defendant’s inability, by reason of his mental condition, to achieve a rudimentary understanding of the purpose, nature, and possible significant risks and benefits of treatment, after conscientious efforts at explanation.
(6) If the examination cannot be conducted by reason of the unwillingness of the defendant to participate therein, the report shall so state and shall include, if possible, an opinion as to whether such unwillingness of the defendant was the result of mental disease or defect.
(7) The report of the examination shall be filed in triplicate with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant.
(8) When the defendant wishes to be examined by an expert of his own choice, such examiner shall be permitted to have reasonable access to the defendant for the purpose of examination.
(9) In the event a defendant is suspected of being developmentally disabled, the examination shall proceed with those experts set out in subsection (7) of section 66-402, Idaho Code.
(10) In addition to the psychiatrist, licensed psychologist, or evaluation committee, the court may appoint additional experts to examine the defendant.
(11) If at any time during the examination process, the examiner has reason to believe that the defendant’s alleged incompetency may be the result of a developmental disability and the matter has not already been referred to an evaluation committee for review, the examiner shall immediately notify the court. The court shall then appoint an evaluation committee or shall order the department of health and welfare to designate, within two (2) business days, an evaluation committee consistent with section 66-402(7), Idaho Code.
(12) If the defendant lacks capacity to make informed decisions about treatment, as defined in section 66-317, Idaho Code, the court may authorize consent to be given pursuant to section 66-322, Idaho Code. If the defendant lacks capacity to make informed decisions as defined in subsection (9) of section 66-402, Idaho Code, the court may authorize consent to be given pursuant to sections 66-404 and 66-405, Idaho Code.
(13) If the defendant was confined solely for the purpose of examination, he shall be released from the facility within three (3) days, excluding Saturdays, Sundays and legal holidays, following notification of completion of the examination.

That may explain the timing of the court’s finding that Lori was indigent. The finding would allow the evaluation to be paid for with state funds.

18-212. DETERMINATION OF FITNESS OF DEFENDANT TO PROCEED — SUSPENSION OF PROCEEDING AND COMMITMENT OF DEFENDANT — POSTCOMMITMENT HEARING. (1) When the defendant’s fitness to proceed is drawn in question, the issue shall be determined by the court. The court shall also determine, based on the examiner’s findings, whether the defendant lacks capacity to make informed decisions about treatment. If neither the prosecuting attorney nor counsel for the defendant contests the finding of the report filed pursuant to section 18-211, Idaho Code, the court may make the determination on the basis of such report. If the finding is contested, the court shall hold a hearing on the issue. If the report is received in evidence upon such hearing, the party who contests the finding thereof shall have the right to summon and to cross-examine the psychiatrist or licensed psychologist who submitted the report and to offer evidence upon the issue.
(2) If the court determines that the defendant lacks fitness to proceed, the proceeding against him shall be suspended, except as provided in subsections (5) and (6) of this section, and the court shall commit him to the custody of the director of the department of health and welfare, for a period not exceeding ninety (90) days, for care and treatment at an appropriate facility of the department of health and welfare or if the defendant is found to be dangerously mentally ill as defined in section 66-1305, Idaho Code, to the department of correction for a period not exceeding ninety (90) days. The order of commitment shall include the finding by the court whether the defendant lacks capacity to make informed decisions about treatment. For purposes of this section “facility” shall mean a state hospital, institution, mental health center, or those facilities enumerated in subsection (8) of section 66-402, Idaho Code, equipped to evaluate or rehabilitate such defendants. The order of commitment shall require the county sheriff to transport the defendant to and from the facility and require an evaluation of the defendant’s mental condition at the time of admission to the facility, and a progress report on the defendant’s mental condition. The progress report shall include an opinion whether the defendant is fit to proceed, or if not, whether there is a substantial probability the defendant will be fit to proceed within the foreseeable future. If the report concludes that there is a substantial probability that the defendant will be fit to proceed in the foreseeable future, the court may order the continued commitment of the defendant for an additional one hundred eighty (180) days. 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.
(3) If during a commitment under this section a defendant who has the capacity to make informed decisions about treatment refuses any and all treatment, or the only treatment available to restore competency for trial, the court shall, within seven (7) days, excluding weekends and holidays, of receiving notice of the defendant’s refusal from the facility, conduct a hearing on whether to order involuntary treatment or order such other terms and conditions as may be determined appropriate. The burden shall be on the state to demonstrate grounds for involuntary treatment including, but not limited to: the prescribed treatment is essential to restore the defendant’s competency, the medical necessity and appropriateness of the prescribed treatment, no less intrusive treatment alternative exists to render the defendant competent for trial, and other relevant information. If each of these findings is made by the court, treatment shall be ordered consistent with the findings.
(4) Each report shall be filed in triplicate with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant. Upon receipt of a report, the court shall determine, after a hearing if a hearing is requested, the disposition of the defendant and the proceedings against him. If the court determines that the defendant is fit to proceed, the proceeding shall be resumed. If at the end of the initial ninety (90) days the court determines that the defendant is unfit and there is not a substantial probability the defendant will be fit to proceed within the foreseeable future or if the defendant is not fit to proceed after the expiration of the additional one hundred eighty (180) days, involuntary commitment proceedings shall be instituted pursuant to either section 66-329 or 66-406, Idaho Code, in the court in which the criminal charge is pending.
(5) In its review of commitments pursuant to section 66-337, Idaho Code, the department of health and welfare shall determine whether the defendant is fit to proceed with trial. The department of health and welfare shall review its commitments pursuant to chapter 4, title 66, Idaho Code, and may recommend that the defendant is fit to proceed with trial. If the district court which committed the defendant pursuant to section 66-406, Idaho Code, agrees with the department’s recommendation and finds the conditions which justified the order pursuant to section 66-406, Idaho Code, do not continue to exist, criminal proceedings may resume. If the defendant is fit to proceed, the court in which the criminal charge is pending shall be notified and the criminal proceedings may resume. If, however, the court is of the view that so much time has elapsed, excluding any time spent free from custody by reason of the escape of the defendant, since the commitment of the defendant that it would be unjust to resume the criminal proceeding, the court may dismiss the charge.
(6) If a defendant escapes from custody during his confinement, the director shall immediately notify the court from which committed, the prosecuting attorney and the sheriff of the county from which committed. The court shall forthwith issue an order authorizing any health officer, peace officer, or the director of the institution from which the defendant escaped, to take the defendant into custody and immediately return him to his place of confinement.


19-2522. EXAMINATION OF DEFENDANT FOR EVIDENCE OF MENTAL CONDITION — APPOINTMENT OF PSYCHIATRISTS OR LICENSED PSYCHOLOGISTS — HOSPITALIZATION — REPORTS. (1) If there is reason to believe the mental condition of the defendant will be a significant factor at sentencing and for good cause shown, the court shall appoint at least one (1) psychiatrist or licensed psychologist to examine and report upon the mental condition of the defendant. 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. The order appointing or requesting the designation of a psychiatrist or licensed psychologist shall specify the issues to be resolved for which the examiner is appointed or designated.
(2) In making such examination, any method may be employed which is accepted by the examiner’s profession for the examination of those alleged to be suffering from a mental illness or defect.
(3) The report of the examination shall include the following:
(a) A description of the nature of the examination;
(b) A diagnosis, evaluation or prognosis of the mental condition of the defendant;
(c) An analysis of the degree of the defendant’s illness or defect and level of functional impairment;
(d) A consideration of whether treatment is available for the defendant’s mental condition;
(e) An analysis of the relative risks and benefits of treatment or nontreatment;
(f) A consideration of the risk of danger which the defendant may create for the public if at large.
(4) The report of the examination shall be filed in triplicate with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant.
(5) When the defendant wishes to be examined by an expert of his own choice, such examiner shall be permitted to have reasonable access to the defendant for the purpose of examination.
(6) If a mental health examination of the defendant has previously been conducted, whether pursuant to section 19-2524, Idaho Code, or for any other purpose, and a report of such examination has been submitted to the court, and if the court determines that such examination and report provide the necessary information required in subsection (3) of this section, and the examination is sufficiently recent to reflect the defendant’s present mental condition, then the court may consider such prior examination and report as the examination and report required by this section and need not order an additional examination of the defendant’s mental condition. The provisions of this subsection shall not apply to examinations and reports performed or prepared pursuant to section 18-211 or 18-212, Idaho Code, for the purpose of determining the defendant’s fitness to proceed, unless the defendant knowingly, voluntarily and intelligently consents to having such examination and report used at sentencing.
(7) Nothing in this section is intended to limit the consideration of other evidence relevant to the imposition of sentence.

So to break down the statutes, if someone involved in a case, usually the defense attorney, raises the issue of a defendant’s competency, the judge issues an order for an evaluation (that was the March 8, 2021 ex parte order in our case). If the defendant is indigent, the state pays for the evaluation. The state will provide an evaluator, or the defendant may choose one. If the evaluation deems the defendant incompetent, the state may either agree or oppose. If the prosecutor contests the evaluator’s findings, the court will hold a hearing where the prosecutor will have the opportunity to cross-examine the expert about their process and findings. The court can order a second evaluation. A second evaluation would likely focus on whether or not Lori is malingering (faking it). We all know she’s been able to fool evaluators before. The hearing on the prosecutors’ objection, in this case, is scheduled for June 16, 2021, at 9 am.

If the judge finds the defendant incompetent, the defendant is ordered to participate in restorative services. If the defendant refuses restorative treatment, the court must hold a hearing within seven days to determine whether the defendant should be involuntarily treated. The prosecution has the burden to show that the involuntary treatment is necessary, that the prescribed treatment is essential to restore the defendant’s competency, that there is a medical necessity, that the prescribed treatment is the most appropriate, and that no less intrusive treatment alternative exists to render the defendant competent for trial.

If, after 90 days, the defendant is not restored to competence, the court may extend the period another 90 days for a total of 180 days. If at the end of the 180 days, the defendant has still not been restored to competence, the court could find that the defendant is not expected to be restored to competency in the foreseeable future and involuntarily commit them to the state department of health and welfare. If the defendant is committed indefinitely, the judge can, at some point, decide that too much time has elapsed and that it would be unjust to resume the criminal proceeding and dismiss the charge. I don’t expect that to happen. Keep in mind; there is no statute of limitation on murder in Idaho so charges could be refiled at any time if the judge dismissed them.

What can we expect? Judge Boyce will hear the issue of Lori’s competency on June 16, 2021, at 9 am. At that hearing, Rob Wood will question the evaluator on their methods and their findings. As a result of that hearing, Judge Boyce could uphold the finding that Lori is incompetent, could reverse that finding and rule that she is competent, or could order a second evaluation. I expect a second evaluation.

It’s very unusual for a person to be declared incompetent for the foreseeable future and committed. Usually, the person will receive restorative services and be declared fit. Remember that fitness to proceed with trial is a very low bar. The defendant must be oriented to time and place and understand the basics of what is happening and everyone’s roles in the courtroom, nothing more.

Many have asked how Lori’s incompetency could affect Chad’s case. It will undoubtedly have some impact. Remember, we heard that John Prior intended to file a motion to sever the trials in the earlier case for conspiracy to destroy evidence. There could be some very interesting procedural moves coming. First, the prosecutors could file a motion to consolidate the two cases – the first case with the destruction of evidence charges and the second case with the murder charges – into one case. It would make perfect sense from a logistics and efficiency standpoint. If the cases were consolidated, all the charges would be in a single case for each defendant. The cases could still be severed so that each defendant would receive their own individual trial on all the charges. That could fox the defense quite nicely if the prosecutor asks for the death penalty.

As we know, John Prior is still representing Chad Daybell, and Mark Means is still representing Lori Daybell. They are representing their clients in both their cases. The prosecutor has 60 days from the day the defendant enters a plea on the murder charges to decide whether to seek the death penalty. On June 9, 2021, at 10:15, Chad can either enter a plea or ask for more time. If Chad enters a not guilty plea, the state will have 60 days to file their notice of intent to seek the death penalty. Remember, Lori’s case is on hold. If the prosecutor seeks the death penalty, John Prior is not death penalty qualified and could not continue as the lead counsel. He could continue as a second chair. Chad would have to be appointed a death-penalty qualified lead attorney. It’s likely that at that time, Chad would also be declared indigent. If the prosecutor requests that the court consolidate the cases, Prior would not be able to continue as the attorney on the first case.

The same situation would apply to Lori once she’s competent. Chad’s case will likely go forward while Lori’s remains stalled, and it might even be additional justification to sever their trials. The argument will be that Chad shouldn’t be denied a speedy trial because Lori’s case is stalled. That circumstance could produce an even more interesting result. What if Lori is incompetent long enough for Chad to be tried and convicted? He could then be called to testify against her, and because he had already been convicted, he couldn’t invoke his Fifth Amendment right against self-incrimination.

I want to diverge from talking about the case and take time out to talk about the interweb. Our ability to connect - often in real-time - can be extraordinary, but it can also lead to rumors, innuendo, mistakes, and untruths. I established my newsletter and have participated in Facebook groups and YouTube channels to create a platform for my future book. It’s a reality of the publishing world that an author must show a publisher that they are an expert on the subject and that people are listening to them. Your remarkable support for me has allowed my agent and me to begin the process of looking for a publisher. It’s important to me that I remain transparent and credible in my online presence and maintain good relationships with those people I will ultimately be interviewing once the cases are finished. It’s also essential to me that I remain faithful to my own personal and professional ethics.

Truth can be in short supply on the internet, so I want to say this clearly: I have not communicated with any lawyers or the law enforcement officers on this case, and I will not do so until the case is over. I also have not made public things that were said to me in confidence. Once the cases are over, I will be eager to interview everyone involved to understand their perspectives and thought processes. Until then, I will write my newsletter based on what is in the public purview.

There is at least one person who is following and speaking publicly about this case while playing both sides. This person is overtly claiming allegiance to the victims while doing research and directly helping one of the defense attorneys. And yes, I have the receipts to prove my statement. I advised that person not to become involved in that way, and once it became clear to me it was happening, I chose not to engage with that person. It’s not my place to do anything further; I’m a reporter of this story and not an active participant. I know there have been other people who are aware of the situation who have reported it to the prosecutor and perhaps the Idaho Bar. I don’t intend to comment further because and as the old saying goes, it’s no longer my circus or my monkeys.

I hope you all had a lovely Memorial Day Weekend and that we can all recover from our case hangover and move forward with renewed energy. See you soon on YouTube on Hidden True Crime with Lauren and Dr. John Matthias, or with Tricia Griffith on Websleuths, and by the way, I love that you all are calling me “the good Lori.” Cheers.
June 1, 2021