Does Mark Means Have an Ethics Problem?
Should Lori's Vallow's Attorney
Continue to Represent Her?
July 10, 2020
Lori Vallow’s attorney, Mark Means, raised some eyebrows during Lori’s arraignment on new charges when he reported to the judge that he had not represented any other parties. The judge asked, “Mr. Means, the court is inclined to ask one question here today, number one because the charge has been listed here in the information does pertain to conspiracy, Mr. Means, have you ever represented any of the alleged co-conspirators that are set forth in the complaint?” To which Means answered, “No, your honor, other than Mrs. Daybell.” Prosecutor Wood pointed out that Means said he represented Chad Daybell before any criminal charges were filed against him. The judge questioned whether a conflict exists and directed both sides to submit their request regarding that issue.
Professional responsibility rules vary slightly from state to state, but in general, follow the ABA Model Rules of Professional Responsibility. The rules that surround conflicts of interest are central and are taught to lawyers from the very start. Attorneys are required to study and pass a portion of the bar examination covering attorney ethics. Most state bar associations also require that attorneys take a course on professional responsibility as soon as they are admitted to practice in that state. All states require that attorneys complete continuing legal education every year and that some portion of those continuing legal education hours is devoted to professional responsibility. Some people interested in the case suggest that this conflict may be because Mr. Means is not an experienced criminal attorney. Even if that is true, he is still well aware of his responsibility under the rules about conflicts of interest.
A look at the Idaho rules points up some areas of concern. Please note that I did not reproduce the entire text of the Idaho Rules of Professional Conduct here. You may access a copy at isb.idaho.gov or by Googling Idaho Rules of Professional Conduct. Most states add commentary to their rules, and the commentary is helpful in this case. I’ve highlighted some relevant information.
RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by the personal interests of the lawyer, including family and domestic relationships. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.
Commentary General Principles [1] Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person or from the lawyer’s own interests. For specific Rules regarding certain concurrent conflicts of interest, see Rule 1.8. For former client conflicts of interest, see Rule 1.9. For conflicts of interest involving prospective clients, see Rule 1.18. For definitions of “informed consent” and “confirmed in writing,” see Rule 1.0(e) and (b). [2] Resolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly identify the client or clients; 2) determine whether a conflict of interest exists; 3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable; and 4) if so, consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing. The clients affected under paragraph (a) include both of the clients referred to in 16 IRPC Effective 7-1-14 paragraph (a)(1) and the one or more clients whose representation might be materially limited under paragraph (a)(2). [3] A conflict of interest may exist before representation is undertaken, in which event the representation must be declined, unless the lawyer obtains the informed consent of each client under the conditions of paragraph (b). To determine whether a conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved. See also Comment to Rule 5.1. Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this Rule. As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment to Rule 1.3 and Scope. [4] If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent of the client under the conditions of paragraph (b). See Rule 1.16. Where more than one client is involved, whether the lawyer may continue to represent any of the clients is determined both by the lawyer’s ability to comply with duties owed to the former client and by the lawyer’s ability to represent adequately the remaining client or clients, given the lawyer’s duties to the former client. See Rule 1.9. See also Comments [5] and [29]. [5] Unforeseeable developments, such as changes in corporate and other organizational affiliations or the addition or realignment of parties in litigation, might create conflicts in the midst of a representation, as when a company sued by the lawyer on behalf of one client is bought by another client represented by the lawyer in an unrelated matter. Depending on the circumstances, the lawyer may have the option to withdraw from one of the representations in order to avoid the conflict. The lawyer must seek court approval where necessary and take steps to minimize harm to the clients. See Rule 1.16. The lawyer must continue to protect the confidences of the client from whose representation the lawyer has withdrawn. See Rule 1.9(c). Identifying Conflicts of Interest: Directly Adverse [6] Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client’s informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer’s ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client’s case less effectively out of deference to the other client, i.e., that the representation may be materially limited by the lawyer’s interest in retaining the current client. Similarly, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients. [7] Directly adverse conflicts can also arise in transactional matters. For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the representation without the informed consent of each client.
RULE 1.9: DUTIES TO FORMER CLIENTS (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; (3) unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
It’s clear that Lori Vallow and Chad Daybell’s interests are adverse to each other now. A lawyer is ethically bound to zealously represent his client by acting in that client’s best interest. The lawyer can’t adequately represent the interests of two clients in the same case who have conflicting goals about the outcome. If Mr. Means represented Chad at any time, even if it was before any criminal charges were filed, there is a chance that Means was privy to information from Chad that he can now use to benefit Lori. Conversely, he may be privy to information from Lori that will hurt Chad, whose interests he must protect. Clients can waive some conflicts in writing, but most lawyers will tell you doing so is dangerous. Keeping a case when there is a conflict is inviting trouble; your client could later sue you for malpractice, and it could subject the case to a challenge in the appeals court.
Next Week: Part One of Are Chad and Lori Really Mormons?
Have questions? Email me at info@thelorivallowstory.com.
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.
Let's Talk About Evidence
Can Circumstantial Evidence Convict Lori Vallow and Chad Daybell?
July 3, 2020
I’ve seen a lot of comments on social media about circumstantial evidence, so let’s talk about evidence in general then circumstantial evidence specifically.
The rules around evidence are the backbone of the law. The rules control what can be used at trial, how it is admitted, and what it tells the finder of fact.
The finder of fact is either the judge or the jury. The judge or jury listens to the facts, weighs the evidence, decides which testimony is credible, and then applies the law to the specific facts of the case. In a criminal case, evidence is presented to a jury, unless the defendant waives their right to a jury and opts to have a judge decide guilt or innocence. Why might a person do that? Well, if a defendant believes that his case turns on a technical or legal argument that might be misunderstood by a jury, he might want a judge to decide the case.
There are two statements that we hear all the time that bear some explanation. The first is “that’s circumstantial evidence.” The second is “that’s hearsay.” Today’s post will deal with the first, and I’ll take on hearsay in a later post (whole legal textbooks have been written about hearsay).
So what is evidence? A typical instruction given to juries defines it, “There are two types of evidence. One is direct evidence—such as the testimony of an eyewitness. The other is circumstantial evidence—the proof of a chain of circumstances pointing to the existence or nonexistence of a certain fact. You may base your verdict on direct evidence or on circumstantial evidence, or on both.” In short, circumstantial evidence is treated just the same as any other evidence. Other forms of evidence are physical evidence, oral evidence given by witnesses who are under oath, and documentary evidence, the information contained in books, files, papers, images, videos, and any other method of storing information. All of the rules surrounding what kinds of evidence can be admitted in court are designed to assure the information the finder of fact hears is reliable.
If either Lori Vallow or Chad Daybell are charged and tried, we can imagine what evidence the prosecution might introduce. Melanie Gibb will be called to testify about what she saw and what she heard Lori say. That’s oral evidence given in court and under oath. We expect to see autopsy reports on the children’s remains. While the medical examiner who performed the examination and wrote the report will probably be called as a witness, his or her testimony will expand on and authenticate the written report. That’s documentary evidence. We will also hear evidence that Chad and Lori were romantically involved, that Lori had two children, Tylee and JJ, that Alex Cox was Lori’s brother, that Lori and Chad held some unusual religious beliefs, that JJ was last seen on September 23, 2019, that Alex Cox’s phone pinged in Chad’s backyard on September 24, 2019, in the specific area where JJ’s body was found. As far as we know, no eye witness saw Alex or Chad bury JJ’s body. That’s a chain of circumstantial evidence. Because we are thinking beings with brains that are always attempting to make meaning, we are good at taking facts and inferring things from the information we have.
Here is where circumstantial evidence is tricky. Can we infer from the above facts beyond a reasonable doubt that Alex killed JJ? Or Lori? Or Chad? No. Circumstantial evidence is like a chain. The more missing links, the less likely it is that you can prove a chain of events that leads to only one conclusion. That’s why circumstantial evidence needs to be corroborated by as much physical, documentary, and witness evidence as possible. That’s why Melanie Gibb’s testimony that Lori thought JJ was a zombie is so essential; It’s a link in the chain. No doubt, now that officials are sure something happened to JJ on the night of September 23, 2019, they are scouring the planet for other evidence. Did someone see Alex carrying a body-shaped bundle? Was there a witness who heard a scream, or saw Lori’s car speeding along the highway near Chad’s? What did the clerk at the Maverick’s convenience store notice when Alex was there?
Prosecutors use circumstantial evidence to prove crimes every day. The only question, in this case, is whether prosecutors can prove a chain of events so clear that the only conclusion is guilt beyond a reasonable doubt?
Have questions? Email me at info@thelorivallowstory.com.
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.
Lori Vallow's New Charges
Why These New Charges, and Why Not Murder?
June 30, 2020
Hello Fellow Hunters!
There was a development in the Lori Vallow case late yesterday afternoon when police charged her with two counts of conspiracy to commit destruction, alteration or concealment of evidence. That’s a felony that carries a maximum of five years in prison.
Why did prosecutors do this, and why not charge her with murder? Those of you who watched Court TV’s coverage might think you know, but I think they got the answer to the first part of the wrong. Ashley Banfield says the reason the charges can’t be maintained because “the police produced the children.” I don’t think that’s the reason. But they are right that the new charges are only an interim step.
Here are my thoughts: until yesterday, Lori’s charges were two counts of abandoning her children and two counts of contempt of court and one count of obstructing the police. The contents of the charging documents and the definition of the legal terms matter, so let’s break them down. First, let’s look at the definition of wilful.
IL 18-101 The word “willfully,” when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.
Now, the definition of abandonment:
IL 18-401 Every person who:
(1) Having any child under the age of eighteen (18) years dependent upon him or her for care, education or support, deserts such child in any manner whatever, with intent to abandon it;
(2) Willfully omits, without lawful excuse, to furnish necessary food, clothing, shelter, or medical attendance for his or her child or children, or ward or wards; provided however, that the practice of a parent or guardian who chooses for his child treatment by prayer or spiritual means alone shall not for that reason alone be construed to be a violation of the duty of care to such child;
And Contempt:
IL 18-1801 Wilful disobedience of any process or order lawfully issued by any court.
For the prosecutor to obtain a conviction, he would have to prove beyond a reasonable doubt that Lori wilfully (with a willingness to commit the act) failed to furnish necessary food, clothing, shelter or medical attendance for a child under age 18 who was dependent on her for care or support. There is no evidence that Lori failed to furnish any of those things to the children before their deaths. So, her attorney could argue that she did willfully abandon either child because they would not have needed any of those things once they were dead. The other charges are the contempt and the obstruction. I’m sure the prosecutor will roll the obstruction charges (for asking Melanie Gibb to lie) into any future charges. The contempt charge is problematic because impossibility is an absolute defense to a charge of contempt. You can’t be held in contempt for willfully defying a court order if compliance was impossible. The argument is that Lori couldn’t produce the children because they were already dead. Yes, I know it’s an argument that makes the skin crawl. Lawyers are sometimes called upon to make arguments that are legally sound, but morally distasteful or intellectually disingenuous. We call that an argument you have to put a bag on your head to make. The prosecutor was smart to add the conspiracy to destroy, alter, or conceal evidence because it’s a charge Lori’s attorney can’t argue is moot because the children are dead.
Why not get on with the murder charges? The Court TV folks have this part right. Murder cases are incredibly complex. Think of it this way: someone gives you a 5000 piece jigsaw puzzle to put together. The picture on the box is out of focus and may not show the entire puzzle. You’re not even sure if you actually have all the pieces. To add to the confusion, some of the pieces can fit int into your puzzle more than one way. Over time, you study and test and turn every piece until you painstakingly complete the puzzle. You take a picture of the puzzle; you tell everyone that this is the way the puzzle should look. Then you hand it off over to a defense attorney who studies the picture and studies the pieces, and wonders if the puzzle could go together in some other way. To test the prosecutor’s theory, the defense attorney takes the puzzle apart and reassembles it to see if she gets the same result as the prosecutor. Now imagine all that work has to be done within 60 days to comply with the defendant’s right to a speedy trial.
Time can work in two ways for defendants. Pushing for a speedy trial limits the time the prosecutor has to prepare the case and do any ongoing investigation. I’ve heard of many cases where a critical piece of evidence, like a weapon, or even a body, turns up months after the crime. Prosecutors often test their theories and gather new evidence, like witness statements, additional lab work, or expert opinions right up until the day of trial. Exercising her right to a speedy trial forces the state’s hand before all that additional information is available. But delay can also work to the benefit of the defendant. The longer a case waits to get to trial, the weaker the evidence can become. Memories fade, physical evidence can degrade or be lost, and environments change; the creek that might have been running high in March is a trickle in September.
Generally, Prosecutors want time to assemble the case. They also don’t want the defendant to disappear or commit suicide. Charging their target with other charges, that may or may not be related to the murder, gives them time to assemble their case carefully before the game clock begins to run. At the outset, the abandonment and contempt charges were the only charges that made sense with the limited evidence the prosecutor had. Now, that those charges might be readily challenged because the children have been found, adding the new charges assures Doomsday Mom won’t be going anywhere soon.
Stay safe, wash your hands, and email me with questions on this or any other topic about the case at info@thelorivallowstory.com.
Author, Lori Hellis, is a retired criminal attorney with 27 years of experience. Her planned book, Children of Darkness and Light, will tell the story of this case.
Are They Insane?!?
Could Chad and Lori Escape Justice by Claiming Insanity?
July 3, 2020
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Many people have asked whether Lori Vallow and Chad Daybell can use the insanity defense. The short answer is it’s doubtful, but there’s a lengthy explanation behind it.
Insanity vs. Fitness to Proceed and Ability to Aid and Assist. The law surrounding mental state and insanity is complex, and some nuances bear explaining. Under a general legal definition, a person is insane if, as a result of mental disease or defect, he or she lacks substantial capacity either to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of the law. This definition has to do with the person’s state of mind at the time the crime was committed. Historically, that definition meant that if a person knew that what they were doing was wrong, and had any capacity to stop, they were not insane. Over the years, this definition has held up, with tweaks from individual states. The question of whether a person was insane at the time of the crime is different from the question of whether a person has the capacity to proceed to trial and can sufficiently aid and assist their counsel. The first question has to do with the circumstances at the time of the crime, and the second has to to with overall capacity, and the person’s ability at the time of trial. In some states, the law runs these two questions together; in others, they are very clearly separate.
The Burden of Proof and Standard of Proof. It’s important here to have a quick discussion about the burden and standard of proof. Generally, the burden to prove a fact in a criminal case is on the prosecution, and anything that shifts that burden to the defense is frowned upon. There are also different standards of proof. Although quantifying those levels is usually frowned upon in court, most lawyers would explain as follows: beyond a reasonable doubt, the standard of proof in a criminal case could be quantified as being 99% sure. The legal standard for a civil case, by a preponderance of the evidence, could be quantified as being 51% sure.
An insanity defense is one of the few times it is acceptable to shift the burden of proof to the defendant. The defense must prove, beyond a reasonable doubt that the defendant was insane at the time of the crime (that he was unable to appreciate the criminality of his act, or conform his conduct to the law). In 1982, the country was shocked when John W. Hinckley, the gunman who attempted to assassinate President Ronald Reagan, was found not guilty by reason of insanity. That turn of events led many states, including Idaho, to reconsider the insanity defense. It was also a time when, in general, public opinion had swung toward law and order. In 1982, a few months after the Hinckley decision, Idaho abolished the insanity defense.
Idaho Law. Idaho’s abolition of the insanity defense is not, however, as sweeping as it sounds. In fact, the law does allow the defense to claim that a mental disease or defect interfered with the defendant’s ability to form the necessary mental state.
Mental State. I outlined the concept of mental state in an earlier post. For the benefit of those who were not subscribers at the time, here is what I wrote:
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 were aware 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.
Elements of a Crime. Every crime is defined by its elements. For instance, the Idaho crime of Murder in the First Degree, the elements will look something like this:
On a specific date (to show the crime occurred within the statute of limitations if there is one)
In a county in the state of Idaho (to establish the jurisdiction)
Defendant’s name (the crime was committed by a person) did
Wilfully, deliberately and with premeditation or
By way of poison or
Lying in wait
Or torture
Kill the victim, a human being.
Items 4-7 establish the necessary mental state. If the defense can prove that the defendant was sufficiently mentally ill so that they couldn’t act willfully, deliberately or with premeditation, or didn’t have the ability to plan sufficiently to poison, lie in wait or torture, then they still get the benefit of the defense.
Many states made changes to their criminal codes around the issue of insanity. Idaho was only one of four to approach the issue by tying the mental disease or defect to the ability to form the necessary mental state. In Oregon, the legislature took a different approach. The insanity defense was replaced by a finding of “guilty but insane.” The difference is that once a person is ruled to be guilty but insane, they are committed to the supervision of the Psychiatric Security Review Board (PSRB), which acts like a parole board for people found to be guilty, but insane.
Let’s apply this information to what we know about the case of Lori Vallow and Chad Daybell. Remember, we are only using what we can observe and the information available to the public. It appears that both Chad and Lori can aid and assist in their defenses. Both have appeared in court, said they were able to hear, read, and understand documents and the judge’s questions and rulings. Both have consulted extensively with several lawyers. Both appear entirely oriented to person, place, time, and situation.
It also appears that neither is insane. But Lori Hellis (so you don’t confuse me with that other Lori), you may say, how can they believe in, and do some of the things alleged, and not be batshit crazy? Excellent question! The answer is that the law’s definition of insanity and the cultural and societal definition of insanity are very different. A jury or a judge, acting as the finder of fact, will have to determine beyond a reasonable doubt, that a mental disease or defect interfered with their ability to form the necessary mental state for a crime to declare them insane. The judge or jury will look at the evidence, including the testimony of mental health experts, to decide that. We know that Lori had a psychological examination a couple of years ago. From what we know about that evaluation, no mental disease or defect was identified then. A mental condition could indeed develop in that time, but prosecutors will surely use that prior evaluation to suggest that Lori is malingering (claiming she’s sick when she isn’t). Having strange religious beliefs that you use to justify committing a crime is not proof of mental disease or defect. In fact, it might be the opposite. If a person can understand the nuanced doctrine of a religion, it may prove their intellectual ability to understand and conform their conduct to rules. It might be splitting hairs, but not understanding or being able to conform to the law is different than merely being grandiose and believing the law doesn’t apply to you because you are a deity. If you want to look at an interesting case study, take a look at the story of the Bhagwan Shri Rajneesh. I recommend the excellent six-part series on Netflix. Followers of the Rajneesh were prosecuted for America’s only case of domestic biological terrorism. Followers of the Bhagwan believed they were creating a paradise on Earth for his adherents and that they were justified in accomplishing it by any means possible. They may have held some pretty crazy ideas, but none of them were insane.
Lori and Chad’s lawyers might try the insanity gambit, but I doubt it will succeed. First, Lori and Chad would have to agree to it. From experience, I can tell you that a client with their level of arrogance and grandiosity is unlikely to give their consent. Second, the judge or jury would have to find beyond a reasonable doubt that the mental disease or defect kept them from understanding that what they were doing was wrong or being capable of following the law.
Think about it: knowing something is wrong, and being capable of following the law, then choosing not to is the definition of criminal intent.
Have questions? Email me at info@thelorivallowstory.com.
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.
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.
What Happens Now?
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Introducing The Lori Vallow Story.
Thank you for signing up for the newsletter to join me in the hunt for answers about this case. Thousands of people all over the world are fascinated with the strange and twisted story of Lori Vallow. We wonder, how could an attractive, and seemingly loving mother, a devout member of the Church of Jesus Christ of Latter-Day Saints, become involved in the deaths of as many as six people, including her own children?
My name is Lori Hellis. I’m a retired criminal defense attorney and author. Like you, I have so many questions about this case, questions that drove me to create this blog and started me on the path to writing a book about the case.
Like many of you, I’ve been following this case since it started. I had just moved to Arizona when reports began to surface about two missing children with ties to my neighboring community of Chandler. Like you, I’ve followed the news and the Facebook groups, listened to the podcasts, watched Dateline, and the reports of Nate Eaton of East Idaho News, and Phoenix Fox 10 reporter Justin Lum.
With all the attention and coverage, you might wonder what can I add to the conversation. I can add the perspective of an experienced criminal attorney who understands law enforcement investigations, court processes, and the nuances of the criminal justice system. With my ability as a writer, I will demystify the story for non-lawyers. If there are trials for either Lori Vallow or Chad Daybell, I will travel to Rexburg, Idaho, to attend, interview, and write about them.
Like you, I want to understand the perfect storm of people and circumstances that culminated in this sad and twisted story. People toss around words like unfathomable and inexplicable to describing this case, but I think there are ways to understand and explain this case. Nothing can excuse Lori Vallow’s actions or choices, but by analyzing, perhaps we can understand her story as a cautionary tale.