Run Up to the Lori Vallow Daybell Trial

March 16, 2023

Hello Friends!

There's plenty to talk about as we prepare for the murder trial of Lori Vallow Daybell. If you are new to the newsletter, take a look at the archive for back issues at http://thelorivallowstory.com/

Before we dive in, I want to thank all of you who subscribe to my YouTube channel. This week we hit 5000 subscribers! I also want to thank everyone who has generously sent super chats and PayPal donations to support my moderators and all of you who bought me a coffee. Your generous super chats have really helped my mods, and I can always use coffee. You can find my channel at https://www.youtube.com/@childrenofdarknessandlight. I will post YouTube shorts as often as possible during the trial. If you have not already subscribed, now would be a good time. Be sure to click the little bell to get notifications, so you know when I go live or post a new short.

I had a lot of fun appearing with my friend, Gigi McKelvey, from the YouTube channel Pretty Lies and Alibis on Joel Waldman's Surviving the Survivor. You can watch it here https://www.youtube.com/watch?v=5mpMofRFUGI

If you want background information on the Vallow/Daybell case, check out https://www.youtube.com/@PrettyLiesAndAlibis/playlists. She has a five-episode Lori Vallow crash course to help you get up to speed. For a really deep dive, with over 50 episodes, check out her playlist, Lori Vallow and Chad Daybell: Connecting the Dots. https://www.youtube.com/playlist?list=PL7766TxulH2bLtGrdT6si5qVx68U_yAlo

Lori Vallow Daybell's trial will begin on April 3, 2023, at the Ada County Courthouse in Boise, Idaho. It will NOT be televised. Judge Boyce continued his ban on all cameras in the courtroom. Many of your favorite online creators will be there, including Nate Eaton from East Idaho News, Gigi McKelvey from Pretty Lies and Alibis, Scott Reisch of Crime Talk, and of course, me. I'm looking forward to seeing them all.

Most troubling is the announcement that the only way for the public to access the trial will be in person or by listening to the audio recordings released at the close of each trial day. This will be familiar to those who have followed the pretrial hearings. The court also announced that there will be a fee of about $90 per day for those recordings.

A video feed will be transmitted to an overflow room in the Ada County Courthouse. That same feed will be sent to a courtroom in Madison County so that local residents can watch the trial. That feed will NOT be recorded or saved and will NOT be available to the general public at any time. The court has made NO special provision for the media. Anyone who wants to attend the trial must go on the court's website and reserve a spot, first come, first served. Only those with reservations will be admitted into the courtroom or the two remote locations. The reservation page is here: https://adacounty.id.gov/iudicial-court/vallow-davbell-trial/. The reservation system will activate at 8 am on the business day before the day you want to reserve. The court is still refining the reservation process, so look for more details soon. Trial exhibits will not be released until the trial is over. Cell phones and laptops will be permitted but must be in “silent” mode and cannot be used to transmit, record or photograph the proceedings. No one may wear buttons or any other item that displays a message, so if you are attending, you may want to put your Justice for JJ and Tylee wristbands in your pocket. Many creators will be live-tweeting updates. If you wish to receive those tweets, follow them on Twitter. You can see mine on Twitter @lorihellis. Gigi is @prettylies&alibis, and Nate Eaton is @NateNewsNow.

The court held an informational meeting for the media yesterday to answer questions. Nate Eaton of East Idaho News has announced that they will obtain the audio recordings daily and post them on their web page at https://www.eastidahonews.com/ and YouTube for free at https://www.youtube.com/@Eastidnews.

The recordings are essential because of the lack of other public access. The public has a right, and more importantly, a responsibility, to oversee their public officials, and public access to court proceedings is fundamental to our system of checks and balances. To put this in perspective, according to East Idaho News, the Vallow and Daybell cases have already cost the state and local governments an astonishing $3.6 million before either has even come to trial. The citizens of Idaho have no idea how that money has been spent and no way to ensure justice has been served. Her trial will easily cost another million dollars, and taxpayers can expect that if she is convicted, Lori's appeals to cost an additional $30,000 to $50,000 per year for as long as thirty years; that's an additional $1.5 million. It costs an average of $22,182 per year to house a prisoner in Idaho.

During yesterday's court meeting, we were told that prospective jurors will arrive at the courthouse on March 27 and 28 to turn in their jury questionnaires. Those sessions will be closed to the public. Jury selection will begin on April 3, 2023. The questioning will be done in small groups and may include some questioning of individual potential jurors. At least some of that questioning will be done privately. Spectators will only be seated in the overflow room during jury selection to allow the court to control what the public sees. When the substance of the trial begins will depend on how long it takes to seat a jury. I would anticipate at least a week for jury selection. Judge Boyce is scheduled to meet with the attorneys to discuss timing, but the court still expects an eight-to-ten-week trial. It's unclear whether that includes the penalty phase if she is found guilty.

As we swing into the final weeks before the trial, it's important to remember that for the appeals court to consider an argument, the issue has to have been raised at or before trial. Anything not raised at or before trial is not subject to appellate review.

What is likely the final pretrial motion hearing was held today (March 15, 2023). The hearing was to decide on two defense motions, Motion in Limine and Motion to Dismiss Death Penalty. The judge expressed frustration that we are so close to trial and still wrangling over these issues. However, Judge Boyce said he would take them under advisement and issue a decision before March 22, 2023.

Let's take a look at both motions.

Motion in Limine. A motion in limine is a request for a pretrial evidentiary ruling. Here, the defense is asking the court to rule in advance that all of the evidence included in the state's Thirteenth Discovery Disclosure be excluded at trial. As you might remember, the late disclosures were the basis of Judge Boyce's decision to sever the trials. One item, the newly discovered hair on the duct tape that wrapped JJ Vallow, was delayed because of its late discovery and the need to be analyzed in a specialty lab. The delay in producing the remaining items was, plain and simple, sloppy work on the part of the prosecution. The prosecution has emphasized the large volume of discovery at nearly every court appearance. Despite that, while they hired a costly death penalty qualified attorney to advise them, they failed to employ a discovery clerk to manage the thousands of pages and hundreds of hours of recorded discovery. As a result, they failed to turn over 4,933 pages of discovery and 48 audio files containing 30 hours of interviews. It would be hard to argue this oversight was immaterial to the case. The judge would very likely have granted a lengthy continuance to both parties, but for one small but very significant detail: Lori Vallow has consistently refused to waive her right to a speedy trial. The April 3, 2023, trial date is 42 days past that deadline. However, Judge Stephen Boyce found there was good cause under the Idaho law to exceed the time limit. Any further delay could result in her case being dismissed. In the end, Judge Boyce ordered the defendant's cases severed so that Chad's attorneys could have more time to investigate and analyze the newly disclosed discovery, while Lori's case will proceed as scheduled. I believe the judge will grant this motion and order the prosecution not to attempt to introduce any of the overdue discovery in Lori's case. Since Chad will have plenty of time to review and investigate the evidence, it will likely be admitted in his case.

Motion to Dismiss the Death Penalty. Lori's attorneys also filed this motion. The issues raised on both sides are worth a deep dive. The defense argued several grounds to justify the dismissal. First, they claimed that the ongoing media saturation exposes potential jurors to bias. Second, they cite the discovery violations and the likelihood that any conviction will be overturned because of the lack of transparency in the discovery process. Third, they say, “The government wanting to kill a mentally ill person is a troubling thought.” They go on to say that the government “submitted an opinion that maybe the defendant wasn't mentally ill, but just evil. Even if the government's new opinion of the defendant has some believers that the defendant is just evil, we don't kill witches anymore in America.” Fourth, the state doesn't have the chemicals to kill people on death row.

I don't believe the first argument gets any traction, with all the precautions being taken to protect the jurors and the process. I agree that the appeals court will likely have plenty to say about the state's handling of discovery. Whether that will result in them overturning the verdict and ordering a new trial remains to be seen. Third, the defense walks a fine line when addressing their client's mental illness. On the one hand, they have filed a notice that they do not intend to raise the issue of mental illness in the guilt or innocence phase of the trial. On the other, they claim there is ample evidence that their client is mentally ill. This is the dilemma of the defense attorney: they are legally and ethically bound to follow the direction of their client, even when they disagree with it. While it's clear Lori Vallow Daybell suffers from a mental disease or defect, she has decided not to present that evidence to the jury during the guilt or innocence phase. She alone can decide, and her lawyers must follow her lead. The state of Idaho does not recognize the insanity defense and does not allow pleas of guilty but insane. Idaho is one of only four states that does not allow insanity to be used as a defense. Still, Idaho law permits the defense to present evidence that the defendant was so mentally ill that she could not form the mental state (such as knowingly or intentionally) required to prove the crime. The prosecution has also filed a motion in limine, asking the court to limit any rebuttal evidence the defense could offer if the state “opens the door” to that line of questioning by raising the defendant's religious beliefs. We have discussed, at length in past newsletters, the question of when a religious belief becomes the diagnosable mental defect known as religious delusion. Finally, the motion asks the judge to dismiss the death penalty because Idaho does not have the chemicals to kill people on death row.

The defense cites the case of Gerald Pizzuto, who has been on death row for more than 35 years. After exhausting all his state and federal appeals, Pizzuto was issued a death warrant and given an execution date. The date had to be vacated because the state of Idaho could not obtain the drugs necessary to complete the execution. The problem persists in every state that still has the death penalty. For several years, states have had difficulty obtaining the chemicals because the manufacturers refuse to sell their drugs if they are to be used to execute people. This has led to some troubling outcomes. Some states resorted to having alternate drugs created by compounding pharmacies. In several cases, defendants died agonizing deaths, leading to cruel or inhuman punishment claims. States have reacted differently to the problem. In Oregon, for example, after a ten-year governor's moratorium on executions, the outgoing governor commuted the death sentences of all death row prisoners to life in prison without the possibility of parole. Conversely, in Idaho, the state legislature just introduced a bill to bring back the firing squad as a form of execution. Lori's defense argument fails to consider that it could be thirty years before her appeals are exhausted, and any death sentence might be carried out, and much could change by then. I don't believe Judge Boyce will dismiss the death penalty in this case, but it was important for the defense to bring up the issue so that it can be reviewed on appeal.

The state has filed its objection to Lori's Motion to Dismiss the Death Penalty. First, the prosecution argues that the issue is not ripe. Ripeness is a term used in the law to indicate whether an issue is ready for decision. The state contends that a motion to dismiss the death penalty is not ripe unless and until the death penalty is imposed. Second, they argue that even if the court finds the issues ripe for decision, media saturation is not a valid ground on which to dismiss the death penalty. The prosecution argues that the court has taken measures to limit prejudicial trial publicity and that the defense will have ample opportunity to question potential jurors to determine their potential bias. Third, they claim the alleged discovery violations are not grounds to dismiss the death penalty. The prosecution says there is no legal authority to dismiss the death penalty because of discovery violations and that they have complied with the discovery rules. They also try to shift the responsibility to the defense by saying they revealed in the state's first discovery response that recorded jail calls and visits existed and would be turned over by July 15, 2021. They report that “due to an oversight,” the recordings were not provided, but since they told the defense they existed, it's the defense's fault for not following up. They say they reviewed the jail calls and visits and provided the details of any jail calls or visits the state believed might contain inculpatory or exculpatory information. Finally, the state argues that the death penalty is a constitutionally available sentence, that Lori Vallow Daybell's mental illness does not preclude its imposition, and that, further, the method or manner of imposing the death penalty is not ripe for consideration. The defense filed a further response by including an affidavit from Mary Goody, their mitigation specialist.

Let's take each of these arguments in turn.

Ripeness. The prosecution may be right on this. Determining the death penalty's constitutionality can only occur once the ultimate punishment is imposed. As an appellate issue, I think the argument that the death penalty should be dismissed before it is imposed is dead on arrival. Nonetheless, the other arguments in the motion bear discussion.

Media Saturation. Again, I think this argument fails. If the court had not taken what seems Draconian steps to obstruct public access to the trial, perhaps the defense would have had an argument. Admittedly, the worldwide media attention and the amount of primetime programming about the case are not ideal. Still, since my move to Boise, I routinely run into people who know little or nothing about the case.

Discovery Violations. Perhaps it is because I am a former defense attorney, but I find the ongoing discovery issues beyond outrageous. Every time I read about new discovery, it makes my blood boil, and I honestly don't know how Jim Archibald, John Thomas, and John Prior are keeping their blood pressure within manageable limits. I will say it again. The prosecution has spent a whopping $3.6 million on this case before it has even come to trial. They hired Rachel Smith to consult and assist at the cost of somewhere between $8,000 and $10,000 per month (including her travel, per diem, and lodging); they should have hired an experienced discovery clerk whose only job was to manage the “voluminous discovery” they are always talking about. Here is the point that the prosecution simply does not seem to understand, no matter how many times they are reminded: the state is not the arbiter of whether the information is important. They are legally obligated to turn over ALL discovery, and it's up to the defense to determine whether the information is legally relevant or bears further investigation. Instead, the prosecution insists on telling the court that whatever they might have overlooked wasn't important anyway. John Prior is right to be outraged. As he has said over and over, “they don't get to decide.” The defense has filed an affidavit from their mitigation specialist, Mary Goody, further outlining the handicap they are operating under because of the lack of discovery. How are we eighteen days (that's 432 hours) from trial, and the state has provided a witness list to the defense with no contact information for the witnesses? It's highly unlikely that the judge will dismiss the death penalty because of discovery violations, and the appeals court probably won't either.

That said, this is just more ammunition for the appeals court to grant a new trial because of the state's sloppy, fast, and loose treatment of the discovery rules. Mark my words: we will be back here in a year or two for a new trial for Lori Vallow Daybell. If the citizens of Idaho are outraged at the cost now, they haven't seen anything yet, and the blame falls squarely on the shoulders of their elected law enforcement officers. As you might recall, the former Fremont County Prosecutor, Marcia Murdock, turned the Tammy Daybell case over to the Idaho Attorney General's office because she felt her county wasn't equipped to handle the case. She believed the experience and resources of the Idaho AG were necessary to prosecute the case effectively. When Murdock didn't run for reelection, Lindsey Blake was elected. In the meantime, the children's bodies were found in Chad's backyard in Fremont County. One of Blake's first official acts was to take Tammy's case back from the state AG. Madison County Prosecutor Rob Wood was appointed a special prosecutor on the case. Together, they have the responsibility to prosecute the case effectively. I hope the voters of Madison and Fremont counties consider that in their next election cycle.

Mental Illness. This has become the thorniest issue for trial. The state has offered an affidavit from Dr. Michael Welner. It is full of fascinating information. If Lori is convicted, this will be one of the central issues on appeal. Is it constitutional to execute a person who is mentally ill? I will be discussing this tonight on our True Crime Wednesday YouTube Live.  Tune in at 6 pm PDT or catch the replay at https://youtube.com/live/mQsM2wrOuXk.

Thanks again for all the follows and the subscriptions. Please stick with me on YouTube and here in the newsletter for updates as the trial begins.