Talking to the incompetent client and Happy New Year!

Hello Friends! What an odd feeling it is, typing 2022 for the first time!

I’ve gotten several questions on this subject, and I suspect it’s a question many others may have, so I want to respond in newsletter form.

Many of you asked about Jim Archibald’s statement in court last week that he wanted the opportunity to consult with his client. You questioned how he could consult meaningfully with someone who is incompetent.

Rather than a light that is either on or off, I think of competence as a light on a dimmer switch. The spectrum of competence can be like the light, shading brighter or darker with time. The patient’s treatment plan aims to shift that lever ever so slightly in the brighter direction every day. While medication is usually necessary, it’s coupled with daily reality checks that reinforce and encourage the patient to remain grounded in what is real rather than their delusions. Contrary to most Hollywood portrayals, patients are rarely delusional all the time, and treatment is often about reinforcing and extending the lucid periods. Further, competence is as much a legal construct as a medical one in this instance.

A lawyer’s obligation to a client with diminished capacity is spelled out in the Rules of Professional Conduct. In Idaho, that is Rule 1.14. The applicable rule and the commentary is as follows:

RULE 1.14: CLIENT WITH DIMINISHED CAPACITY (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests. Commentary [1] The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions. [2] The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of the client, particularly in maintaining communication.

In cases where the client is permanently incompetent, the court may appoint someone to make legal decisions for the client. That person is called a Guardian ad Litem. In some states, GALs are also appointed for children in contested divorce and child welfare cases, and you may have heard about the GAL appointed for Tylee in Lori’s divorce from Joe Ryan.

To illustrate, I once represented a child in a child welfare case. My client’s mother was severely mentally disabled, and both her children were conceived as the result of caregivers who took advantage of the mother’s diminished capacity. The children themselves had special needs. The mother could not direct her attorney, so the court-appointed her a Guardian ad Litem. The GAL’s job was to, wherever possible, ascertain the mother’s wishes and advocate for her in her place. Where the intention is to restore a party to competence, it’s unusual for the court to appoint a GAL.

As you can see from the rule of professional conduct I’ve cited above, Jim Archibald must maintain as normal an attorney/client relationship as possible with Lori Vallow and explain the details of her case to her as thoroughly as possible. I have often made this trip to a treatment facility to talk with a client. When possible, I would usually repeat the information in a letter so that the client could review the information more than once and process it as needed with a treatment provider. That correspondence is protected from later disclosure by the attorney-client and the medical professional-patient privileges.

You can see from these rules, Lori is entitled to be informed about her case and consulted about her wishes at every juncture. That doesn’t mean she is competent. It only means that she is permitted to be involved as much as she is able. I hope this explanation helps.

Some of you also asked about perjury charges and disbarment in Mark Means’ future. Both are certainly possibilities. I believe Means is already under investigation with the Idaho Bar. Unfortunately, the Idaho Bar won’t confirm or deny an open disciplinary case. They only release information if and when the attorney is sanctioned.

Now, on a different note, this brand spanking new year is upon us. As always, New Year’s Day brings the opportunity to reflect on the past year and set intentions for the new one. 2021 was a year of tremendous change for me. I entered 2020, set on using the COVID-19 lockdown as a time to nurture my fledgling writing career. That intention snowballed into not one but two books. In 2021, I finished The No Nonsense Guide to Divorce. The book is a straightforward and often humorous look at divorce, directed toward the Millennial generation. It is scheduled for release on March 15, 2022, and is available for preorder on Amazon. I also contracted with Pegasus Books to write Children of Darkness and Light, The Lori Vallow Story. I’m grateful that Pegasus and I share the same vision for the book. Fortunately, they are more concerned with completeness and quality than speed and are willing to wait until after the trial in January of next year.

Still, 2022 won’t be an uneventful year for me. In the first half of the year, my family and I will be selling our home in Mesa, AZ, and moving to Boise, Idaho. As we settle in, I will be traveling from home in Boise to Rexburg to understand the environment and the community and begin interviews. My retired fighter pilot husband will, I hope, be recovering and regaining strength and mobility after his second major back surgery yesterday; My 88-year-old mother will be settling into an assisted living residence and making new friends. I share these things with you because you have welcomed me into your community and become my friends.

Too many of you have experienced incredible loss and sadness in the past two years. I know that people in this community have experienced both the loss of loved ones and the loss of their livelihoods; I know you’ve experienced health challenges and loneliness. Yet, through it all, you’ve shown up for each other and for Colby and Kelsee Ryan and the entire Vallow family.

Thanks to you all for your support, and here’s to a 2022 full of love and peace and promise for us all. Cheers.

Look for The No Nonsense Guide to Divorce on Amazon, at Barnes, and Noble, or at your independent bookseller. Pre-order on Amazon today.

HappyNewYear!

Aaaannnnddd he's outtathere!

Judge Orders Mark Means Disqualified.

December 31, 2021

Hello Friends.

It’s the last newsletter of 2021! Can you believe it? If someone had told me in 2019 when I began following this case that we’d be entering 2022 still pre-trial, I would have laughed, but here we are.

The big news: THE JUDGE HAS DISQUALIFIED MARK MEANS FROM ANY INVOLVEMENT IN THE VALLOW/DAYBELL CASE.

Yes, that deserved all caps. Late on December 28, Judge Steven Boyce issued findings and an order regarding Mark Means. The judge found that an actual conflict of interest exists because Means at one time represented both Chad Daybell and Lori Vallow. The judge also found that Means’ questionable practice of filing sworn declarations on behalf of his client likely made him a witness in the Vallow case and that Means’ including statements made by his client in those declarations, likely violated Vallow’s right to attorney-client privilege.

Just when people were questioning Judge Boyce’s resolve in this case, he hits one out of the park. This action may assure those concerned about Judge Boyce that he does have a backbone. It’s true that Judge Boyce was appointed to the District Court bench only months before this case became national news, and the COVID-19 pandemic virtually shut down the courts. It’s also true that this is Judge Boyce’s first capital case. What a case to cut your judicial baby-teeth on, right? So, it’s understandable that Judge Boyce has been cautious (some might say overly so) in the conduct of the case. No one wants this case overturned because of an improper or prejudicial process.

Let’s break down the issues in Judge Boyce’s order a little more. I am quoting the Idaho Rules of Professional Conduct and the associated commentary. If you don’t want to dive into these weeds, please feel free to skip this section.

Idaho Rule of Professional Conduct 1.6 (a) reads, “A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation.”

Idaho Rule of Professional Conduct 1.7 covers conflicts of interest involving current clients. 1.7 (a) and (b) read, “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.”

The commentary discussed informed consent: “Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. See Rule 1.0(e) (informed consent). The information required depends on the nature of the conflict and the nature of the risks involved. When representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved. See Comments [30] and [31] (effect of common representation on confidentiality). Under some circumstances it may be impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent. In some cases the alternative to common representation can be that each party may have to obtain separate representation with the possibility of incurring additional costs. These costs, along with the benefits of securing separate representation, are factors that may be considered by the affected 18 IRPC Effective 7-1-14 client in determining whether common representation is in the client’s interests. Consent Confirmed in Writing [20] Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. Such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See Rule 1.0(b). See also Rule 1.0(n) (writing includes electronic transmission). If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. See Rule 1.0(b). The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns. Rather, the writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.”

The commentary further discusses when a conflict cannot be waived. “Ordinarily, clients may consent to representation notwithstanding a conflict. However, as indicated in paragraph (b), some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent. When the lawyer is representing more than one client, the question of consentability must be resolved as to each client. [15] Consentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation burdened by a conflict of interest. Thus, under paragraph (b)(1), representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation. See Rule 1.1 (competence) and Rule 1.3 (diligence). [16] Paragraph (b)(2) describes conflicts that are nonconsentable because the representation is prohibited by applicable law. For example, in some states substantive law provides that the same lawyer may not represent more than one defendant in a capital case, even with the consent of the clients, and under federal criminal statutes certain representations by a former government lawyer are prohibited, despite the informed consent of the former client. In addition, decisional law in some states limits the ability of a governmental client, such as a municipality, to consent to a conflict of interest. [17] Paragraph (b)(3) describes conflicts that are nonconsentable because of the institutional interest in vigorous development of each client’s position when the clients are aligned directly against each other in the same litigation or other proceeding before a tribunal. Whether clients are aligned directly against each other within the meaning of this paragraph requires examination of the context of the proceeding. Although this paragraph does not preclude a lawyer’s multiple representation of adverse parties to a mediation (because mediation is not a proceeding before a “tribunal” under Rule 1.0(m)), such representation may be precluded by paragraph (b)(1).”


Idaho Rule of Professional Conduct 1.8 further covers conflicts of interest involving current clients. 1.8(b) reads “A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.” Lori Vallow is Means’ current client.

Rule 1.9 involves obligations to former clients. The court found that Chad Daybell is Means’ former client. 1.9(a) reads, “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.” The commentary makes the rule clear: “After termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest and thus may not represent another client except in conformity with this Rule. Under this Rule, for example, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also, a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction. Nor could a lawyer who has represented multiple clients in a matter represent one of the clients against the others in the same or a substantially related matter after a dispute arose among the clients in that matter, unless all affected clients give informed consent.”

Judge Boyce found that even though Judge Eddins ruled in the earlier case that the conflict was waivable and was waived in writing, Vallow and Daybell could not waive the conflict in the current case because of the seriousness of the current charges. As Judge Boyce pointed out, “death is different.”

As her sole legal counsel, Judge Boyce’s disqualification of Means leaves Lori Vallow with Jim Archibald, a death-penalty qualified public defender. While we may think this outcome is in Lori’s best interest, she may think otherwise. No one is sure why she is so attached to Mark Means or why Means is so attached to her. Is it possible for Means to remain involved somehow?

Archibald will surely forbid Means to have any contact with his client if he has not already. Prudence would suggest that Means should follow that direction, but he hasn’t proven himself to be someone who takes the prudent path. Perhaps Means should take the story of Roger Weidner, a disgraced lawyer from my home state of Oregon, as a cautionary tale.

It’s a strange story that begins with Don Kettleberg and Milton Brown. As business partners, the two amassed $35 million in property in the late 1980s. Then, when Kettleberg was 45, he met 22-year-old Jeanette Kent. Kettleberg and Kent were together for more than ten years. The couple had broken up about a year and a half before Kettleberg died of complications of cirrhosis of the liver. Believing Kettleberg had no will and no family, Kettleberg’s partner, Milton Brown, stepped in and took control of Kettleberg’s estate. Although Kettleberg had confided in at least one friend that he had written a will after his terminal diagnosis, Brown began a probate action, claiming Kettleberg had died intestate (without a will). There followed a lengthy contested probate action. Even though a judge found in favor of Janette Kent and ordered Brown to turn the estate over to her, they were all still fighting over the money years later.

Oregon Attorney, Roger Weider, represented Janette Kent. His representation of Kent led Weider into a spiral that ultimately led to his disbarment, several arrests and convictions, and his commitment to a mental hospital. Weider was a true believer, and his deep involvement in Janette Kent’s case convinced him that the entire legal system in Oregon, every judge, lawyer, and public servant, were all corrupt and being bought off. He claimed there was an elite “money cartel” ruling the state of Oregon and suggested that it had roots in the Jewish community. Weidner began inviting “followers” to pack courtrooms whenever he appeared for a hearing. It was a strange time to practice in three counties that make up the Portland, Oregon metropolitan area. I found myself more than once caught in a Weidner-related security lockdown in one of those courthouses. Weidner attracted the attention of a lot of fringe groups. His anti-Semitic diatribes attracted support from The U.S. Observer Newspaper and other fringe right-wing political groups. Long after Weider had been disbarred, he was still “befriending” people he saw as victims of the corrupt system; among other things, he was prosecuted for the unauthorized practice of law. Ultimately, Weidner sacrificed everything while tilting at nonexistent windmills.

I see the seeds of similarity in Mark Means. Means’ deep suspicion of the Church of Jesus Christ of Latter-Day Saints (LDS) and his seemingly impossible belief in Lori’s innocence and victimhood could very well lead him down a similar path. It’s unclear whether Mark Means believes in Lori and Chad’s brand of Mormonism or whether his and Lori’s inexplicable attachment to one another is rooted in some other motivation. What is clear is that the unhealthy relationship is quickly spiraling into what could be Means’ destruction. Over and over, his attachment led Means to make questionable professional decisions that risked his license to practice law.

Lawyers don’t invest an average of $75,000 in tuition and three years of their life to throw away their legal education on any single case. Most attorneys understand that their professional reputations and careers should not rest on any single client. We know that we will practice law long after any one client’s case is finished, and the client has forgotten our name.

Roger Weidner was not motivated by money, and I don’t think Mark Means is either. Many lawyers enter the profession hoping to change the world or at least make it a better place. Most quickly learn that change rarely occurs in the courtroom, and when it does, it happens in tiny increments. Real change comes through the legislative branch of government, not the judicial. Means, like Weidner, seems motivated by principle. We saw that repeatedly as Means persisted in filing documents with no basis in law, arguing that the law should be as he described.

That isn’t to say that he hasn’t enjoyed the public attention and the Court TV appearances, he has; but I think he sees them more as a vehicle to express his ideas than as a way to achieve fame and fortune. There is no question that Lori Vallow Daybell will be better served by Jim Archibald, who, from all reports, is a smart, experienced death-penalty qualified lawyer with a good reputation in the state of Idaho. The question is, will Mark Means slink away to lick his wounds, or will he rise up, Roger Weider-style, and in doing so, destroy himself? Only time will tell.

Merry Christmas!

Hello Friends!

It’s beginning to look a lot like Christmas! I hope this newsletter finds you and your families well and looking forward to exciting and heartwarming celebrations.

I’ve mailed the wristbands! Except for a handful of letters I picked up from the PO Box this morning, if you sent me an envelope, I’ve mailed you a wristband. I still have plenty available, and I’m happy to send you one if you send a stamped, self-addressed envelope to:

Lori Hellis
1042 N. Higley Rd, #446
Mesa, AZ 85205

Thank you for all the sweet notes you’ve sent; I’ve saved them all. Thanks to those who sent me money to help defray the cost, but the wristbands are my way of honoring Tylee and JJ, and of thanking you all for your support. Because of you, my publisher saw that I was the right person to write this story, so please don’t be offended if you found your donation returned with your wristband. And thanks (I think) to the person who sent me her copy of Visions of Glory (someone gave it to her and she was going to throw it out). We know Lori Vallow read it, and it may have been the inspiration for her departure from mainstream LDS doctrine. It’s now in my TBR (to be read) stack.

There isn’t a great deal happening publicly in the case. We know the grand jury was reconvened, but surprisingly, no new charges have been announced. The grand jury reconvened to consider evidence to support new charges either against an existing defendant or against a new defendant. Grand jury indictments can be temporarily sealed if the target of the indictment is someone who might tip off co-conspirators before they can be charged. Prosecutors also sometimes present charges to a grand jury, and then before filing, contact the attorney of the target to negotiate. It’s often done when the prosecution hopes to use the charges against a new co-defendant to leverage them into turning on previously indicted co-defendants. If the new co-defendant proves cooperative, the prosecutor could charge a lesser offense or even decline to prosecute. This illustrates the broad discretion prosecutors have in deciding if and how to prosecute a case. The prosecutor does not have to file a case just because a grand jury returns a true bill. The prosecutor also does not have a time limit on how long he can wait to bring the charges, as long as the statute of limitations has not run.

Thanks to all of you who participated in our Hidden True Crime pajama party, before Thanksgiving. We learned to make Loin Fire cocktails and exchanged recipes. The recipes will be compiled into a book that will be offered for sale. With the permission of Tammy Daybell’s family, all proceeds will go to the Tammy Douglas Daybell Foundation. The foundation was started by Tammy’s family and is committed to “giving children the opportunity to learn and love the written word.” You can read about the foundation or donate at https://www.tammydaybellfoundation.com/. It’s not too late to send your favorite recipe. Email them to info@thelorivallowstory.com. Also, thanks to Lauren Matthias, who, having heard me say I planned to perfect the art of baking French macarons in 2022 (I might have said I planned to make them my bitch), sent me a beautiful book for Christmas on how to make these finicky French treats.

Finally, the holidays always make me introspective, so let me just say thanks once again, to all of you for welcoming me into the true-crime community and allowing me on this journey with you. I had no idea when I started following this case that this is where I would wind up. I hope I will see you all at book signings in 2024 – I’ll be the one serving macarons.

Cheers.

December 2, 2021 Recent developments

Well, hello there! It’s been a minute since we’ve talked about the Vallow/Daybell case, hasn’t it? I hope your Thanksgiving was perfect. We spent the week with our family in Pasadena, California, where we cooked, baked, played games, and drank good wine. I’m here to tell you when I went to exercise class this morning, it felt like I’d been away from it much longer than a week. Hang on because this edition is long.

Just when you think things are not moving, something crazy happens. On November 26, 2021, there was another mystery filing in Lori Vallow’s case. There was a document titled Notice of Appearance, then a motion and order to seal. There was also a motion and a supporting brief to Modify Subpoena Duces Tecum. None of the documents appear on the court’s Cases of Interest site, so we can’t see the actual content; we can’t tell if the motion to seal applies to the Notice of Appearance or the Motion to Modify the Subpoena Duces Tecum. I’ll be discussing sealed documents and hearings at length in a future newsletter. It’s unclear what or who the notice of appearance refers to. Different filings can be called different things from state to state, so it’s impossible to understand this one without seeing the actual document. However, notices of appearance have previously been filed when a new lawyer comes on the scene. The continued sealing of documents is frustrating.

The prosecution filed a motion asking the judge to reconsider his decision on bussing in a jury. Chad’s attorney, John Prior, objected, and Lori’s attorney, Mark Means, joined in the objection. The court initially set a hearing on the motion, but Judge Boyce just vacated the hearing (in Idaho, that means the hearing was canceled). Judge Boyce gave several reasons for not holding the hearing, and they’re worth reviewing.

There are two words the law has stolen from the kitchen: ripe and stale. In the law, an issue must be ripe to be decided. In this context, it means that the case has an existing controversy that warrants judicial intervention. In other words, the case is ready for the court’s decision. A case, document, or fact becomes stale when too much time elapses without action or the statute of limitations runs. Judge Boyce, in his Order Vacating Hearing, addresses both problems. The state wants to present additional information to the court beyond what was presented in the October 8, 2021 hearing. The defense objected. The judge sidestepped the issue of whether the question had already been answered by saying the issue isn’t ripe yet; any information they present now would be speculative since there are still many questions, and any decision could be stale by the time the trial happens. Judge Boyce pointed out the trial has not been scheduled and commented that he is aware that “counsel for both parties are requesting that the trial not be scheduled in the near future.” The judge also noted that the trials are joined, and Lori’s case is currently stayed. There is a pending Motion to Sever filed on September 7, 2021, but it has never been decided. Also, there is no way to know whether the courts in Idaho will still be curtailing operations, including jury trials due to COVID-19.

There are still other hearings set today, December 2, 2021. The first, scheduled for 1 pm, is a hearing on the Motion for Discovery Concerning Events. It’s the motion John Prior filed to obtain discovery about Lori Vallow’s telephone call to the LDS church attorney. The prosecution notified Lori’s court-appointed lawyer, Jim Archibald but did not notify Chad’s lawyer of the call. There is also a scheduling conference today at 2:30 pm. So what do I expect from those hearings? Time for the crystal ball – I’m writing this the morning before the hearings. Let’s see if I’m right. I expected the judge to order the state to provide Prior with all the information they have about the call Lori made from her treatment facility. I also expect the judge to set the trial in May or June of 2022 and a hearing on the motion to sever the trials soon, perhaps as early as January.

Now for what really happened. My crystal ball could not have been more wrong. The outcome of yesterday’s hearing made me yelp “WHAT?” in the self-checkout line at Walmart, drawing the attention of an employee in a yellow vest who thought I needed help with the check-out system. What made me yelp was Rob Wood’s request to set the trial for September 2023. Let that sink in.

First, Wood and Prior bickered about the amount of time the trial would take. Wood said eight weeks, then said he thought ten weeks, including jury selection. It’s reasonable to expect jury selection in a high-profile death penalty case could take as much as two weeks to complete. John Prior then said he had looked at the number of witnesses on the prosecution’s list and compared it with the witnesses he intends to call. He thought the case could be tried in six weeks based on that. I think it’s safe to plan for ten weeks. No attorney wants to chop a case up by continuing it to future dates. When Rob Wood proposed the September 2023 date, no one’s eyes bugged out, so they must have expected it. Prior then countered, saying he preferred October of 2022. Prior reported to the court that his expert witnesses are lined up, and he could be ready by that time. Wood then explained – one could say whined - about the move to Ada County and how burdensome it would be on the state. Jim Archibald then suggested the trial should not be set during the November to March period because of harsh weather. Prior pointed out that Rob Wood represented to the court months ago that he was ready for trial. He also said he has been driving between Boise, where his office is located, and Rexburg for a year and a half and hasn’t had a problem. Prior is correct; the prosecutor must be prepared if the defendant exercises their right to a speedy trial.

If Chad had remained in custody and had not waived his speedy trial right in Idaho, he would have had to be tried six months from his indictment. When a prosecutor brings a charge before a grand jury, he’d better be ready to try the case. Chad did waive his right to a speedy trial. I have written other newsletters that go into detail on this issue. Chad waived his right to insist on trial within six months of his indictment, but that’s not the end of his speedy trial right. The U.S. Supreme Court has decided this issue, as have many state supreme courts. Failure to move a case to trial in a timely way while a defendant is in custody can result in a dismissal of the charges. John Prior is right; three years, even on a death-penalty case, edges into the territory of a defendant being denied due process.

John Prior said that, provided he had all the discovery, he could be ready for trial on his timeline in October of 2022. Lori’s attorney, Jim Archibald, was present. When asked, he indicated he couldn’t estimate when Lori would be available but said they had not yet started their mitigation work. Scott Reisch was outraged, remarking that preparing for trial and preparing a mitigation case (to present facts to mitigate the death penalty) should proceed in a parallel manner. However, he failed to note that Lori Vallow’s case was stayed before any notice of intent to seek the death penalty was filed. Therefore, it would be premature to begin the mitigation work before the death penalty was even on the table.

There has been enough bickering about discovery to make anyone nuts. We can get a clearer picture if we separate Mark Means’ shenanigans from the rest. The prosecution has been slow to provide discovery. That’s a fact. I think much of it stems from the prosecution’s fear that the materials would be leaked to the public or the press. A reasonable concern if you toss Mark Means into the mix. We know Means shared confidential material with a YouTube creator several months ago. But the publicity surrounding the case does not excuse the state from its obligation to share the discovery with the defense in a timely way. Just like a broken clock is right twice a day, I think even Mark Means gets it right once in a while. Prior’s comments about discovery were a little petty but could prove prophetic if it turns out the state has not turned over all the discovery.

The judge also asked about setting a hearing on the motion to sever that John Prior filed in September. John Prior pointed out that the rule requires that the state tell him which statements of either party the prosecution intends to introduce at trial before the motion to sever is heard. That is so that Prior can argue the issue of prejudice. Prior said the court needed to decide that preliminary motion before the issue of severance could be determined, and the motion had not yet been filed. Prior promised it would be filed immediately, and the judge declined to set a hearing until the motion is filed.

I’m a lawyer who likes to give my colleagues the benefit of the doubt. I’ve tried doing so with Judge Boyce. He seems like a likable guy. However, his failure to manage this case is getting out of hand. As an example, he once again put off a decision. He said he couldn’t decide whether John Prior was entitled to the discovery about Lori’s phone call to the LDS Church lawyer and postponed any decision. I think Judge Boyce needs to take a firmer hand in the case and move things along. Setting motion hearings and deadlines is crucial if this case ever gets to trial. Judge Boyce indeed needs to take charge where Mark Means is concerned.

Late on Monday afternoon, the prosecutors filed a response to Mark Means’ motions related to the LDS phone call. Rob Wood and Lindsey Blake take Mark Means to task in the response. In a footnote to the response, they take a swipe at Means right away. The footnote reads, “While it is customary to refer to the defendant and their attorney as ‘the Defense,’ it would be inappropriate in this response to do so. Defendant Lori Vallow/Daybell is currently deemed incompetent, and a stay exists in her case. She is also co-represented by death penalty qualified counsel, Jim Archibald. It is of note that Mr. Archibald did not sign this filing, and it appears that Mr. Means acted unilaterally in preparing and filing this motion. There is no affidavit from Lori Vallow Daybell supporting such allegations. Where the defendant is deemed incompetent and cannot consent to such filing, where the defendant has made no verified assertions to support such motion, and where Mr. Archibald did not sign said motion, it is appropriate to consider this Mr. Means’ filing for clarity rather than an actual filing of the entire Defense team.” In other words, the prosecution is not so subtly pointing out that Means remains a loose cannon.

The prosecution first takes on Means’ claim that there have been “Brady violations.” As those who read the newsletter regularly already know, the U.S. Supreme Court case of Brady v. Maryland, 373 U.S. 83 (1963) stands for the rule that the prosecution must give the defense all information they have about the case, including exculpatory information and may not suppress evidence favorable to the accused. To be considered Brady material, information must be material to either guilt or punishment. Brady does not require that the prosecution investigate the case for the defense. Nor does Brady require that the state disclose matters not material to guilt or punishment.

For those who may not know, while Lori was in her treatment facility, she watched the change of venue hearing via Zoom. She was attended by a mental health clinician identified as N.C. Since the motion applied to both codefendants, it was appropriate for Lori to watch the proceedings. Presumably, NC is Nicole Cleveland, whose affidavit was recently filed in Lori’s case. Remember, the only information we have about this incident is what was reported to Mark Means (who tends to exaggerate) by his incompetent client, who has a history of lying. According to Means, Lori told him N.C. “recommended to Defendant that she contact the Church of Jesus Christ of Latter-Day Saints legal counsel to discuss her case and possibly obtain legal counsel to assist her instead of State appointed Public Defender.” N.C. then took the recommendation a step further and made the call part of Lori’s treatment “homework.”

According to Means, NC provided her with the phone number, and Lori made the call to Daniel McConkie, an attorney at the law firm of Kirton McConkie. McConkie told Lori he couldn’t represent her or talk to her since an attorney represented her. Conversely, Means claims that Lori spoke at length with McConkie and that the attorney told her he knew all about her case. When clients discuss their case with their attorney or a member of their attorney’s staff, the communication is protected by the attorney-client privilege. Neither the lawyer nor the client can be compelled to disclose the substance of their communication. That is not the case when a person talks to just any lawyer. Means is concerned that Lori may have made incriminating statements to McConkie that are not covered by attorney-client privilege, and he’s trying to find out what, if anything, Lori said. Means claims there are “Brady Violation Disclosures” relevant to this occurrence but doesn’t specify what they are. As the prosecution accurately points out, incriminating statements made by the defendant to a third party and which were not solicited by the state, and was not made to a state actor such as the police, and are not in the state’s possession are not Brady material.

Once again, Mark Means does not understand Brady. He seems to think Brady requires the state to do the defense’s investigative work. It does not. The prosecution stops short of calling Means a stupid buffoon, but it’s a near thing. They remark that giving the remainder of Means’ filing “the most charitable interpretation,” it seems that he is asking the state to produce any self-incriminating statements Lori Vallow Daybell may have made to Daniel McConkie that are in the state’s possession. The state says they do not have possession or control of such statements. The state points out that Lori’s other counsel, Jim Archibald, spoke to Daniel McConkie, and there is no reason Means could not do the same. Or perhaps Means could talk to his death-penalty qualified co-counsel about what Archibald learned during his conversation?

As I commented in earlier newsletters, Means is simply out of his depth. He has no idea how to work a case as complex as this one. Instead, he appears to be pursuing irrelevant and unnecessary information and posting useless things on Twitter about sports, politics, and thinly veiled comments about the case. The state goes on to point out the obvious about Means’ attempt to subpoena out-of-state witnesses for depositions: that it is “unsupported by law or fact.” That’s a professional way of saying the attempt is ridiculous.

Every action an attorney moves the court for must be permitted under the law. You can’t make the law up to suit you. That’s law school 101. If you ask the judge to do something, you must also tell the judge why you think he has the authority to do so. In this case, judge Boyce has no power to do what Means asks. The only authority a judge has is to commit an incompetent person to the care of the Idaho Department of Health and Welfare (IDHW) for restoration services. The judge has the authority to determine whether the defendant is legally competent. Still, once the judge determines the defendant is not competent, his only option is to commit the defendant to the IDHW for restoration treatment. The judge can’t pick another agency or treatment provider, and he can’t tell the IDHW how to do their job. No provision in the law permits the judge to disqualify them. Think of it this way – the judge is part of the judicial branch, and the IDHW is a department under the executive branch’s control. The judicial branch cannot tell the executive branch what to do unless the legislative branch has given the judicial branch specific authority to do so.

The prosecution makes an additional interesting point. Every lawyer is governed by the ethical rules of their state licensing board, the state bar association. They are also governed by a statute that precludes them from filing frivolous documents.

Idaho Rule of Civil Procedure 11 covers all filings, including criminal cases. The relevant parts of the rule are:

Signature. Every pleading, written motion, and other paper (emphasis mine) must be signed by at least one attorney of record licensed in the State of Idaho, in the individual attorney’s name, or by a party personally if the party is unrepresented. The paper must state the signer’s address, email address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper, whether by signing, filing, or submitting, or later advocating it, an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.(c) Sanctions.(1)In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court must impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. A law firm may be held jointly responsible for a violation committed by its partner, associate, or employee. (2)Motion for Sanction. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party on the motion, reasonable expenses, including attorney’s fees and costs incurred for the motion.

If the judge finds that an attorney files documents in bad faith or for a frivolous reason, he can impose sanctions. That is above and beyond any sanctions that might be imposed by the State Bar for unethical conduct.

The state also points out that Means likely violated his duty of confidentiality to his client by making her statements public, which is a sanctionable ethical violation. Finally, the state mentions that Mark Means is the only witness to swear to the facts contained in his motion and that his client could not attest to the facts because she is incompetent.

Finally, the state points out that Means still has a conflict because of his prior representation of Chad Daybell in the days before Chad’s arrest. The state asked the judge to inquire into the conflict again. They also point out that presently, Lori Vallow is not competent to waive the conflict knowingly and intelligently. The state asks, at a minimum, that until there can be an inquiry, Means be forbidden from filing documents in the case unless his co-counsel also signs them. And yes, this is the legal equivalent of asking the court to order adult supervision for Means.

People frequently ask me, “why is Mark Means still on this case?” The short answer is I don’t know. I’m as mystified as everyone else. Everyone has the right to retain the attorney of their choice, even a woefully unqualified one. No one knows the financial arrangements between Lori Vallow Daybell and Mark Means. No one knows who, if anyone, is paying his fees. It’s possible that after the money ran out, he decided to stay on pro bono. He would still be considered retained. It’s also possible someone else, like Lori’s family, is paying Means. Most state bar associations take a long time to investigate and adjudicate ethical and malpractice complaints. It’s not typically a fast process, although we recently saw Louisiana’s state bar quickly suspend the licenses of a couple of attorneys connected to the Alex Murdaugh case.

Finally, there was an interesting tidbit on Court T.V. yesterday. Court T.V. announced that a source has revealed that the state was reconvening the Fremont County grand jury, in this case, today (Friday, December 3, 2021). It seems credible, given that they were right about the first grand jury in May. The prosecutor can ask to reconvene the grand jury and ask them to consider additional information that leads to new charges against the present defendant or a new defendant being charged. Speculation is rampant that Melanie Gibb, Zulema Pastenes, or Melani Pawlowski might be the target. It’s possible, although I think it’s more likely that those three would be charged in Arizona for the circumstances surrounding the deaths of Charles Vallow and Alex Cox and the attempted murder of Brandon Boudreaux. If one of them is being charged, I’m sure it’s an attempt to flip them. With Lori incompetent, the state can’t flip her against Chad. If an indictment is issued (it’s likely since, as they say, a grand jury would indict a ham sandwich), I expect we will know about it next week. Grand jury proceedings are secret, but the indictments they produce are not, and the state has been pretty prompt in filing them with the court once they are issued.

There were a couple of things to note for those who watched the hearing. First, mark Means was not on camera but apparently appeared by phone. Lori’s court-appointed lawyer, Jim Archibald, was on camera for the Zoom call. And is it just my imagination, or did Rob Wood look a little haggard? Do you think this case is getting to him?

A bit of housekeeping: thanks to all of you who pointed out flaws in the newsletter layout. It helps a great deal because I don’t know there are problems unless you tell me. I’m told the format is hard to read on mobile devices. I’m working with my I.T. guy to remedy the situation. It may require changing email platforms. Thanks for your patience.

I’ll be appearing on Lauren Matthias’s Hidden True Crime TGIF show on YouTube this evening at 7 pm PST. Join us with your questions.

Gilbert Drops Documents, New Charges

November 18, 2021

Hello Friends! Just when you think nothing is happening this week, things pop.

I want to do a little housekeeping before we dive into the Gilbert document dump and the filings from this week.

First, some of you may not have heard that our friend, Justin Lum, from Fox10 News in Phoenix, won a daytime Emmy for his coverage of this case. Since Charles Vallow’s death, Justin has been reporting on this case and has been tireless in pursuing sources and telling the story. You can see the moment he heard the news on his Facebook page. He was in a store buying diapers when he heard and decided to take a quick detour down the champagne aisle.

Next, I want to congratulate Dr. John and Lauren Matthias on their appearance on Dateline last week. Lauren and John did a great job, but the show’s highlight had to be Keith Morrison saying, “loin fire.”

I also want to shout out to Gigi and Fruit Loop and their YouTube channel Pretty Lies and Alibis. They’ve done an enlightening deep dive into the Chandler document dump.

We’re all working for the same goal – to raise awareness and tell the story for Charles, Tylee, JJ, and Tammy because they can’t. We’re better when we collaborate instead of competing.

First, we had the Chandler document dump, and now, Gilbert. For those unfamiliar with the suburban Phoenix area, Gilbert and Chandler are suburbs of Phoenix, located to the southeast of downtown Phoenix and situated one above the other. If you picture downtown Phoenix as the center of a clock, Mesa is at about 3:30, Gilbert at 4:00, and Chandler at 5:00. Because Chandler and Gilbert are so close, some events, in this case, occurred in Chandler, like Charles’s murder, while others happened in Gilbert, like the attempt on Brandon Boudreaux.

We also had some court filings. Before we get into the Gilbert documents, let’s look at the filings. Mark Means issued a subpoena for John Dalling, the Stake President of the Rexburg Henry’s Fork LDS Stake. Means appears to be fishing for information. He asks for information about the circumstances around Chad’s excommunication, but buried in the subpoena, are some interesting requests that have nothing to do with Chad’s excommunication. Means wants information about prosecutor, Rob Wood. He’s fishing to find out if Wood had anything to do with the decision to excommunicate Chad. Wood is far too smart, and I hope, ethical, to allow that to happen. Even if the subpoena comes to nothing, Means chips away at Wood’s credibility and reputation. Means also asks for information about Heather Daybell, although it’s unclear her relevance to the case. Means has tried to get to Heather Daybell before. It appears to be because she has spoken out about Chad. Perhaps Means thinks Heather may support his narrative that Chad was the mastermind and Lori, the victim. Means is also trying to get information about Lori’s call to the LDS church attorney through the back door. He has no authority to subpoena someone in another state or demand that they appear for a deposition, but he can ask about the local church’s contact with the Utah attorney. I don’t think either ploy works.

Some have asked about whether there is a religious privilege. Any information that a person shares in confidence with their religious advisor is considered privileged. It’s often called the confessor/penitent privilege. It covers things disclosed in confidence in the course of seeking spiritual guidance. However, the privilege does not give churches the blanket right to refuse to produce records or information in a criminal investigation. For example, suppose a person goes to their pastor/priest/bishop/imam/rabbi and unburdens themselves and seeks absolution or advice about a crime they committed. In that case, the religious leader cannot reveal what they have been told. On the other hand, if the church secretary is accused of skimming the collection plate or the youth director is accused of inappropriate sexual contact with a minor, the church records are not protected, and church personnel must answer law enforcement questions. Once again, I think Mr. Means is tilting at windmills. I wish he would focus on his client’s case.

When a lawyer receives a case, their first step is to review all the evidence and determine questions that might require further investigation. You see, while the prosecutor is required to turn over everything, including exculpatory information, they are not required to go out and find that information. When I received discovery in a case, the first thing I did was read everything once, then go back through, page by page, image by image, and make a running list of the questions that discovery raised for me. I would then give those questions to my investigator, either in person or by email. It would then be my investigator’s job to answer those questions by re-interviewing witnesses, reexamining physical evidence, and reporting back. If those questions required further experts, such as the retesting of forensic evidence, or other reexamination, I would take steps to get those professionals involved. In my jurisdiction, court-appointed attorneys were entitled to state-funded investigators or other experts, with pre-approval from the state administrator. It’s unclear how that works with the state of Idaho and Means’ strange, retained-but-representing-an-indigent-client status. It doesn’t seem Means has any clear system for working his case. Instead, he appears to be wasting his time responding to every little thing that develops. Let’s be clear: Means’ job is to develop a case theory that responds to and raises reasonable doubt about the evidence presented at trial. Yes, new evidence sometimes develops in a case after it’s charged, lab testing is completed, or reluctant witnesses come forward. What Means should not do is get wrapped up responding to things that appear in the media.

Probably the most significant release from the Gilbert police was the announcement that they had referred the case involving Brandon Boudreaux to the district attorney for prosecution. They recommended that Lori Vallow and Chad Daybell be charged with conspiracy to commit first-degree murder. They note that if Alex were alive, he would have been arrested and charged. Interestingly, the DA did not believe there was sufficient evidence to charge Chad in Charles’s murder. The Gilbert report notes that as of that time, charges were not being recommended against Melani Boudreaux-Pawlowski. Law enforcement will only refer things to the DA when they believe the DA can prove the case. We know that Melani may have been one of the only people who knew where Brandon was living, but law enforcement may be unable to prove that she gave that information to Lori or Alex. Charges could be filed if additional information is developed later. That sometimes occurs when new information comes out during a trial. If, as expected, the DA brings charges, that will mean a second potential capital case in Arizona for Lori and the first for Chad. Lori is already charged with conspiring to murder her fourth husband, Charles Vallow.

The police reports from Gilbert are enlightening; when read with the Chandler documents, a picture emerges. By October of 2019, Lori and Chad were deep into their belief that the end of the world was at hand and that anything they did was justified. Charles was dead, and so were Tylee and JJ. Lori needed Melani’s complete attention. She began to tell Melani that their prophet, Chad, knew Brandon was involved in gay activities. Even though there was no proof, Lori insisted it was true. She likely convinced Melani that she and her children were at risk of eternal damnation if she remained married to Brandon. But Lori wasn’t satisfied with just getting Melani away from Brandon. She knew Melani had received a sizable property distribution in her divorce and that Brandon had at least a million-dollar life insurance policy. Without Charles’s life insurance, Lori needed a new cash cow. With Melani entirely under Lori and Chad’s spell, it would be easy to access all that money if Brandon died. So Lori and Alex conspired to murder Brandon.

While the family boasted of Alex’s prowess with firearms, it appears he wasn’t that good at it. Lori and Alex prepared the gray Jeep for the attempt. They removed the third-row seat and the spare tire. Video from the storage unit shows them putting both items in storage. They also had the Jeep windows tinted to mask who might be inside. Highway cameras and other evidence show that the Jeep traveled from Idaho to Arizona just before the attempt on Brandon’s life. Alex waited for two hours outside Brandon’s home in Gilbert, AZ, for Brandon to come home. Brandon had just moved into the house, and few people knew where it was. The court had ordered Brandon to give Melani his address because their children were living with him.

Alex took shots at Brandon and sped away, but Brandon didn’t die; Lori’s hope for a big insurance payout was dashed. Chad and Lori were desperate to be together, with enough money to live the good life until July 2020, when the world would be thrown into the tribulation. Eight days after he shot at Brandon, Alex was back in Idaho, taking shots at Tammy Daybell. Despite his recent trips to the shooting range, once again, he missed. Ten days later, his phone would ping in the middle of the night at a church near the Daybell home. Early the following day, Tammy was dead. Chad Daybell collected $430,000 from Tammy’s life insurance and married Lori two weeks later, using the malachite wedding rings Lori had purchased months before.

Now let’s look at the DA’s response to John Prior’s discovery request. There is always a tension between the defense and the prosecution about what the prosecution must obtain. The general rule is that the prosecution is not required to obtain information that the defense can get for themselves. In the rare occasion where the information is not available to the defense, the prosecution has a responsibility to provide it if the information is in their possession or is reasonably obtainable. Much of the discovery response tells Prior to do his own leg work and get the stuff himself. The prosecution is correct. To the extent that the information is readily available on the crime lab website or from the crime lab, it’s Prior’s responsibility to obtain it.

The prosecution filed a motion to present additional information to the court about jury sequestration and Prior responded. In this instance, I think Prior is right. The state had the opportunity to present their information. The judge had previously said he wanted to see cost projections. When the hearing on the change of venue was held, the state was not adequately prepared and didn’t present that information. Now, they want a second shot at it. The judge ruled there was sufficient evidence to order a change of venue. The Chief Justice of the Idaho Supreme Court issued an order to move the case to Ada County. Sorry, prosecution, that ship has sailed.

Chad has several hearings set back-to-back on December 2, 2021. We all hope a trial date will be set at that time. Unfortunately, there is no way to know if Lori will be competent to stand trial by that time. If she is not, John Prior is right; Lori’s availability should not interfere with Chad’s ability to go forward with the trial. However, if Lori is not restored to competency by the time of the trial and the judge declines to delay Chad’s trial further, it will mean that there will be a de facto severance of the cases.

The wristbands are in! I'll be sending the first round out to anyone who sent me a self-addressed stamped envelope. If you live outside the U.S. and send me an envelope with sufficient postage for a first-class letter, I will send you one. You can send your self-addressed envelope to:

Lori Hellis
1042 N. Higley Rd., #102-446
Mesa, AZ, 85205

Lastly, I want to remind you that tomorrow at 7 PM Pacific time, I will appear on YouTube on Hidden True Crime with Lauren Matthias. We will be joined by several of the regular moderators for a pre-Thanksgiving, Friendsgiving, recipe swap, and pajama party. We'll be talking about case developments and drink recipes. Don’t miss it.

Wristband Giveaway

Hello Friends! Just a quick update on the wristbands. I’m sending them out free to subscribers to thank you for subscribing and helping me build my platform and to honor JJ and Tylee.

I have ordered 1000. They should arrive around December 1, 2021. I’ll be sending them out to the first 1000 subscribers who send me a self-addressed stamped envelope, one per subscriber (and yes, we’ll be checking). Yes, we will be mailing to addresses outside the country if you send the proper postage. The bands weigh less than 1 oz. or less than 28 grams. In fact, they don’t even register on my postal scale.

Send your request to

Lori Hellis
1042 N. Higley Rd., #102-446
Mesa, AZ 85205

Once they are gone, they are gone.

If you are not a subscriber, or if you want more than one, I understand you can purchase them through JJ’s aunt, Kresha Easton, by emailing her at kresha0123@gmail.com


Have a wonderful week, and thanks for your support.

New motions and wristbands

So many things to talk about!

First, let’s get some of the announcements out of the way.

I have ordered wristbands. They will be available in early December and look like the one pictured above.


If you are a subscriber, you will be entitled to one free band. I will have a PO Box set up early next week. Once I publish the address, if me a self-addressed stamped envelope and you are on our subscriber list, we will send you a free band.

I will be setting up a shop on the lorivallowstory.com website that will allow you to order extras for a small charge.

I want to address making money from the case. I am writing a book that I expect to put thousands of hours into writing and researching. I hope the book will make money.

I will NOT make money off of Tylee and JJ’s image or name on products. I am offering the wristbands free to subscribers because you asked for them to honor the children. The nominal cost of extras is to defray the cost of ordering and shipping the extra bands.

I also want you all to know that I do not accept money for my appearances on any other creator’s channel or podcast.

Now let’s talk about the crazy Friday filings. It’s not unusual for attorneys to drop filings on Friday. The reason is twofold. First, it might spoil the other attorney’s weekend (yes, attorneys do this weird passive-aggressive shit), especially if the trial is coming up soon. Second, dropping stuff on Friday assures that some media frenzy will have died down by Monday. News agencies are less likely to pursue a story when they have minimal staff on over the weekend.

Mark Means is at it again. If you are looking at his latest filing and saying, “What the ***k?” you’re not alone.

First, as subscriber, Denise Hovland, has pointed out before, Idaho statute 19-3005 (3) says, witnesses

“If a person comes into this state in obedience to a subpoena directing him to attend and testify in a criminal hearing or prosecution in this state, he will not while in this state, pursuant to such subpoena, be subjected to arrest or the service of process, civil or criminal, in connection with any matter which arose before his entrance into this state under such subpoena.”

There’s a good reason for this law. We want people to appear when they are subpoenaed for a proceeding. Melanie Gibb was under subpoena to appear before the Grand Jury. Therefore, she is exempt from service of process, which includes being served with a discovery motion.

In his most recent filing, Mark Means asks the judge to hold Gibb in contempt because she didn’t comply with an improperly served discovery demand. The tricky part is that she needs someone to assert the argument to the court in answer to Means’ motion for contempt. The state doesn’t represent Gibb, and Rob Wood and Lindsey Blake may feel it’s not their place to defend Gibb. On the other hand, they could argue that Gibb was there because of their Grand Jury subpoena, and so they have an interest in the contempt motion. I hope Gibb has an attorney who will make the argument in court that she can’t be held in contempt of court for a discovery demand that was improperly served.

Second, a subpoena isn’t a court order. A person can only be held in contempt if they disobeyed a court order. Means should have first asked the court for an order directing Gibb to comply with the subpoena. If the court issued such an order, and she still didn’t produce the necessary discovery, the judge could hold her in contempt of court. There’s a reason for it; it’s so the subpoenaed person has the opportunity to come into court and raise any lawful challenges to the subpoena (such as that the subpoena wasn’t properly served).

The motion goes on to allege that Gibb has “possibly” evaded prosecution and has engaged in inappropriate communications with the prosecution. These allegations are silly and irrelevant in a motion of this kind. Additionally, Mr. Mean alleges that Ms. Gibb is “believed to be a residence of the State of Arizona.” Do you think Melanie knows she’s a house? Once again, there is absolutely no prohibition against the prosecution talking to witnesses, and what that has to do with whether she’s complied with a discovery request is beyond me.

We’ve all taken notice of the fact that Jim Archibald has not joined his co-counsel, Mark Means, in any of these silly filings. Means may “I’m in charge” himself into a malpractice suit and disbarment.

No matter how I try, people seem intent on disparaging Mark Means because of his client’s character. Please don’t. Criminal defense lawyers represent bad people. That does not make the lawyer a bad person; it makes the lawyer a person who is doing their job to uphold the constitution. Mark Means does enough on his own to disparage himself. He’s proven he can’t spell, doesn’t know a thing about grammar, and will routinely try to make the law say what he thinks it should and not what it does. He’s proven his poor judgment over and over, and you are welcome to disparage away for that.

I think this filing goes nowhere.

Next, there’s the filing by the prosecution to present additional evidence in support of their request that a jury is selected in a different venue and bussed to Rexburg. If you recall, the judge asked the attorneys to present information about the cost of a change of venue versus the cost of bringing in an outside jury. At the change of venue hearing, the prosecution presented several witnesses that were not especially helpful. The Prosecution didn’t, as the judge had asked, present a financial comparison. Now they’ve had time to compile information and want a second bite at the apple. Procedurally, once the judge finds grounds to move the trial, the case is referred to the state supreme court, and the Chief Justice makes the final decision as to where the trial will be held. The Idaho Chief Justice has already issued an order directing the trial to be moved to Ada County (Boise) and that Judge Boyce remains on the case. I don’t think Judge Boyce even has the authority to reopen the issue if he wanted to.

I think this filing goes nowhere.

I’ve saved John Prior’s motion for last because I think there is some meat to it worth discussion. Friends, I can’t dispute that John Prior is a blowhard and a bully who is condescending to women. In other words, he’s a typical 59-year-old male attorney. However, Prior is also experienced and knowledgeable about criminal law and doesn’t file spurious or specious motions like Mark Means.

For the uninitiated, Mark Means filed pleadings last week, alleging that Lori Vallow had contact with an attorney representing the Church of Jesus Christ of Latter-Day Saints. Means claims that a clinician at her treatment facility encouraged Lori to call the church attorney to ask for help in getting a different attorney. The Church attorney reported his contact to the prosecutor, who reported it to Lori’s other attorney, Jim Archibald. Means was indignant that another attorney may have spoken to Lori while she was represented and may have made incriminating disclosures that were not protected by attorney/client privilege. Furthermore, Means’ account of what Lori told him happened varies drastically from the account given by the Utah attorney Lori contacted.

John Prior has now filed a Motion for Discovery Concerning Events That Were Revealed in Lori Vallow’s Motion Dated October 27, 2021. Prior is right to be upset because the prosecutor didn’t notify him of Lori’s contact with the Utah attorney. He points out that as long as Lori and Chad are codefendants, the prosecution had a duty to notify him, and they didn’t. Prior is right. He’s entitled to the same information, and the prosecution has the same ongoing obligation under Brady vs. Maryland to turn over discovery to him as it occurs or develops. Prior is correct that if the state exploited information received from Lori while she is incompetent, it implicates Chad as well and may very well impact his ability to get a fair trial.

Unlike Mark Means, Prior’s motion is well-argued and free of grammatical and spelling errors. I particularly appreciate Prior’s subtle dig at the prosecution when he wonders, “how a seemingly unaffiliated attorney in Utah was able to contact and get an audience with Mr. Wood…” (Is he suggesting Wood is a king? At least he’s not telling the court Wood is a house.) I also think the question plays into his request for a non-LDS special prosecutor. Did Rob Wood take the call because every member of the LDS church knows the McConkie name?

Prior correctly points out that the court must apply a higher standard at every phase of the case once the state asks for the death penalty. He then goes on to ask to be permitted to “fully investigate this incident.” Prior then makes a specific discovery request, asking to get everything that exists about the incident. The list seems comprehensive and reasonable. The only item I question is item 12), A “list of the trainings attended by all members of the prosecution team on this case within the past five years.” ”his request appears out of place unless Prior knows that the Prosecution attended a training relevant to the issues.

Prior asks the court to appoint a special prosecutor not affiliated with either the current prosecutors or the LDS Church. Prior claims that Wood has become a witness in the case and that the other prosecutors in the case have some allegiance to him. Interestingly, Prior doesn’t give a reason for wanting a non-LDS church prosecutor. I’m sure he will argue in a hearing that the prosecutor took the call from the church attorney because every LDS member recognizes his name and that the Church may influence the prosecution either directly or indirectly.

Prior asks that the witnesses be sequestered by asking the judge to order that Rob Wood have no contact with the witnesses until they testify at an evidentiary hearing about this incident.

Finally, Prior objects to the sealing of the pleadings and proceedings. I have to agree. At the prosecutor’s request, I think the judge has been over accommodating when it comes to sealing documents and proceedings. Prior makes a salient argument that the proceedings should be open to the public. Unless the information is protected health information (PHI) under HIPPA, it should be released. PHI includes names, addresses, dates, phone numbers, email addresses, social security numbers, medical records numbers, health insurance information, license numbers, photographs, and other identifying information. It also covers medical diagnosis and treatment. Prior is correct that the neither the Idaho Department of Health and Welfare nor prosecution have a right to confidentiality. Lori Vallow does; however, Mark Means has made clear that he doesn’t want this motion or these proceedings sealed.

It will be interesting to see what the judge does with this motion; I can’t predict it.

Updates! Data Dumps! And Means' latest motion October 27, 2021

Hello Friends! No, you have not been inadvertently unsubscribed to the newsletter; I haven’t sent any recently. There are several good reasons why not. First, I hate to fill your inbox with emails that are nothing but repeats of old information – take note, Dateline. Second, I took a vacation to Oregon for a lovely week-long visit. Third, I am editing the final page proofs for my last book, The No Nonsense Guide to Divorce, which will be released in March 2022. And then, of course, there are the 2000+ documents and video files the Chandler police dropped a week ago and Mark Means’ new filing.

Finally, and most exciting, I have accepted an offer from Pegasus Books to publish Children of Darkness and Light, The Lori Vallow Story. This development and a few other related life developments have led to a BIG decision. My husband and I will be moving to Boise, Idaho, in the spring for at least a year so I can attend the trials and be closer to the sources. So those of you in Boise and Rexburg – I want coffee dates!

For all of you who have been asking about the Justice For Tylee and JJ bracelets, I plan to offer them free to my newsletter subscribers and will announce details soon.

Whew, that’s a lot! Now let’s talk a little about the case and the people at the heart of the story. Many of the documents Chandler released were duplicates of previously released information, but there were some interesting revelations, such as the text messages between many people involved. For example, there was the awkward love story that Chad sent Lori in a series of texts, which was proof once again that he should never have given up his day job to become a writer. If you want an amusing listen, catch Lauren Matthias of Hidden True Crime reading the series of texts to her husband, Dr. John Matthias.

The Idaho Supreme Court ordered that the Vallow/Daybell trials take place in Ada County and that Judge Stephen Boyce remain the assigned judge. The Ada County courthouse is in Boise. There was also a hearing last week that may have slipped under most people’s radar. The hearing was a status conference requested by the prosecutor on an expedited basis. The hearing was ordered sealed, so we can only speculate about what they discussed, but I am willing to make a semi-educated guess. On September 23, 2021, the court issued an order following a closed hearing on September 14, 2021. The court’s finding was that Lori Vallow Daybell remained incompetent, and her commitment should be extended. There was also a request by the state to order her forcibly medicated. There are no other orders that address the issue of medication, so I suspect that the status conference on October 21, 2021, was to address those concerns. If that is the case, I would expect an order to be issued by the court, probably under seal.

I share everyone’s frustration at the number of sealed hearings and documents. I hope to address the issue of the constitutionality of all of these sealed hearings and filings in a newsletter soon.

In addition to Chad’s steamy texts, there were many enlightening texts between Lori, Zulema, and Alex. I’ll be talking about those texts and their possible use in the trials in a future newsletter.

When I began this newsletter, I thought there wouldn’t be much case news to report. I had no idea we’d get an interesting new filing from Mark Means today! To quote that podcaster, “let’s talk about it.” If you haven’t seen the document, here is a link to Justin Lum of Fox News 10’s post:
https://www.facebook.com/photo/?fbid=444979103659585&set=pcb.444992133658282

Just to recap for anyone new to this, Judge Stephen Boyce ruled that Lori Vallow Daybell was incompetent and committed her to the care of the Idaho Department of Health and Welfare (IDHW) for treatment. The treatment is aimed at restoring Lori to competence so she can participate in her case. Lori’s attorney, Mark Means, expressed concern early about her treatment and filed a demand with the court that he be involved in her treatment decisions. While his demand was unusual and unlikely to be granted, his concerns may have had a sliver of reasonableness. Now I know many of you dislike Mark Means, and I am far from his biggest fan, but I also insist on pointing out when he’s even marginally correct, despite his atrocious spelling and grammar. So Means might be justified in being upset, but he’s probably upset at the wrong people and demanding the impossible.

Here is what we can gather from the filings. Lori was watching the video feed of Chad’s change of venue motion. She was watching with a clinician who has been identified as “N.C.” During that hearing, N.C. recommended that Lori contact The Church of Jesus Christ of Latter-Day Saints (LDS) to discuss her case and ask for help in getting legal counsel. Remember, Lori is currently represented by Mark Means, who is retained (the specific terms of his retainer agreement with Lori are unknown), and Jim Archibald, an experienced court-appointed death penalty lawyer. Lori said she didn’t want to make that call, but N.C. Googled the phone number in front of Lori and gave it to her. Clinicians in the treatment facility routinely give patients “homework” to complete as part of their treatment plan. N.C. later told Lori that making a phone call to the LDS church was part of her homework. N.C. even coached Lori on what to say when she made the phone call. According to Means, Lori believed the completion of the homework was mandatory.

Lori placed the call to the number that was given to her. She told the receptionist who she was and that she was seeking legal assistance with her criminal case. According to Means’ motion, Lori’s call was transferred to someone named Daniel S. McConkie. Means alleges that Mr. McConkie told Lori he had “30+ years of criminal litigation as a prosecutor” and that he knew “every detail of her case.” Means claims that these assurances led Lori to make disclosures that she would not have otherwise made. (I interpret this to mean Lori made incriminating statements.) Means claims that McConkie never told Lori that he could not give her legal advice because he is not licensed in Idaho or that their communication was not protected by attorney-client privilege.

Now, this part is interesting. The Utah Bar Association lists sixteen McConkies, and those familiar with LDS history will tell you McConkie is a common name. There is a Daniel S. McConkie, admitted to the bar in 1984 and listed as a partner in Kirton McConkie. The Kirton McConkie website says Daniel S. McConkie is a member of the Insurance and Litigation sections of the firm but has an extensive background in criminal prosecution and defense. There are other McConkies listed who are or have been members of the Kirton McConkie firm. Specifically, there is an Oscar, admitted in 1952 and listed as deceased, and what appears to be his son, Oscar Jr., admitted in 1980 and listed as inactive. There is also a David McConkie, whose status is listed as SuspNP. Experience tells me this designation means suspended for non-payment, probably of bar dues. A Daniel S. McConkie Jr. is a professor at Northern Illinois University (NIU) College of Law. He is about the right age to be the elder Daniel’s son and has been a visiting professor at the J. Reuben Clark Law School at Brigham Young University. His profile on the NIU website indicates he has experience as both a federal and state prosecutor and teaches criminal law and procedure. All this leads one to wonder, who in the hell did Lori Vallow talk to? Was one of these two Daniel McConkies working at LDS Church headquarters in Salt Lake City and available to take Lori’s call when the receptionist transferred it? Or, has Mark Means simply gotten the wrong end of the stick once again?

Means claims that the LDS attorney, who may or may not be Daniel S. McConkie, told Lori he would get back to her and promptly called Prosecutor Rob Wood instead. According to Means, McConkie told Wood about the statements Lori made. Presumably, those statements were incriminating; otherwise, Means wouldn’t be in such a sweat. Then, to add insult to injury, Wood called Lori’s court-appointed lawyer (who Means identifies as Mr. “Archibal”) and not Means, to tell the defense about the unsolicited call from the LDS lawyer. Means claims that Wood minimally told Lori’s defense co-counsel that Lori “wishes for a ‘new’ not stated appointed attorney,” whatever that means. Means also says he believes his co-counsel, Archibal(d), called and spoke to McConkie.

When Lori later told N.C. that she’d made the call, N.C. said “good,” but, according to Means, expressed concern when Lori told N.C. she had told Means about the call. I’m about the read between the lines and speculate a bit. I think it’s likely that N.C. had some well-founded concerns about the quality of the legal representation Lori is receiving. It’s possible that to help Lori remain grounded in reality and begin to take charge of her case - and knowing Lori is a devout LDS follower - N.C. suggested Lori ask the Church for help in finding qualified counsel. Lori has been excommunicated from the LDS Church for apostasy, and I have my doubts about whether the Church would be of any use to Lori, but N.C. may not have known that.

Means motion claims that Lori is obsessed with the LDS religion and believes that the Church controls everything, including the Idaho legal system and that the clinician’s suggestion was illegal and unethical. (Again? This is his go-to claim.) So let me break it down.

Was it unethical for N.C. to assign Lori the “homework” of calling the Church? This one is hard for me to say. I’ll defer to the mental health experts – perhaps Dr. John Matthias will weigh in? But as I see it, it could be that N.C. was working with Lori on being grounded in reality and taking charge of her case. It’s also possible Lori herself has expressed concern about the quality of representation she is receiving. If that’s the case, then N.C. encouraging Lori to make some phone calls makes sense. The suggestion to call the LDS Church was undoubtedly ill-advised, but N.C. may not know as much about this case as we do.

Was Prosecutor Rob Wood ethically obligated to disclose the unsolicited call he received from an LDS attorney who might be one of the Daniel S. McConkies? Yes, he was. And it appears he fulfilled his ethical obligation by reporting the call to Jim Archibald. We know Rob Wood and Mark Means are hostile to one another, so who could blame Rob Wood for calling Lori’s other lawyer, the one he may have a more collegial relationship with, instead of Means? It’s been rumored that Means doesn’t get along with Archibald any better than he gets along with Wood, so if true, it’s understandable why Means might have felt out of the loop.

Mark Means doesn’t like that Rob Wood is a member of the LDS Church and doesn’t hide his church membership. Means contends that the knowledge of Wood’s church membership means Woods “has been allowed to attempted manipulation of essential witness(es).” I gather from that word salad that Means thinks Woods is trying to influence witnesses by letting slip his LDS-ness. Means also claims that the LDS Church somehow “embedded itself into this case by way of its public statement dated 8/4/21.” If Means had looked at the document he attached to his motion, he would have noticed that the letter is dated August 4, 2020, and was sent to all “General Authorities, General Officers, and the following leaders in the United States and Canada: Area Seventies; State, Mission, District and Temple Presidents; Bishop and Branch Presidents; Members of Ward and Stake Councils” The letter is general, and reminded Church “leaders and members of a long-standing policy that Church leaders should not involve themselves in civil or criminal cases regarding members in their units quorums or organizations without first consulting Church legal counsel.” The letter does not mention any specific case. Still, the timing seemed suspect since the letter was issued when Chad Daybell’s preliminary hearing was happening in Rexburg on the destruction of evidence charges. Mark Means replied in a long and citation-laden letter.

Let’s look at what Means is demanding. First, he wants the state to disclose communication, including but not limited to Brady violation disclosures. We’ve talked about Brady v. Maryland before. The case established the rule that the prosecutor in a criminal case must disclose all information to the defense, even (or especially) if the information is exculpatory. Every state’s rules of criminal procedure includes this requirement. The rule isn’t flexible, but it is easily met. I think Wood’s disclosure to Archibal(d) that he received an unsolicited phone call from an LDS Church lawyer is sufficient. Next, Means wants the judge to allow criminal depositions and out-of-state subpoenas. Both are unusual. Not all states even permit depositions in criminal cases, and most require the court’s order if they allow them. Means wants to subpoena the LDS Church lawyer so he can depose him. The judge does not have the power to subpoena a witness in another state, and it’s unclear what relevance their information would have except perhaps to support Means’ last demand that the judge “disqualify the Idaho Department of Health and Welfare.” What does that even mean? Does that judge have the authority to do so? I don’t think so. The law requires that if a defendant is incompetent, the judge must commit them to the IDHW for restoration. Even if Judge Boyce agreed that N.C.’s actions were unethical or illegal, he doesn’t have the authority to disqualify the entire IDHW from Lori’s treatment. He doesn’t even have the power to tell the IDHW to take N.C. off Lori’s case. The Idaho Department of Health and Welfare is a separate department of the Idaho government, just like the Idaho Judicial Department. One department can’t tell the other how to do their job. The IDHW could not tell Judge Boyce how to conduct a trial in his courtroom, even if the trial involved someone who was committed to IDHW.

So, to sum up, once again, Means’ motion seems to be much ado about very little. If anyone is at fault, it may be the clinician, N.C. It’s also possible Means just tipped his hand about his theory of the case that Lori Vallow Daybell was so obsessed with the LDS Church she didn’t understand she was killing human beings and so, therefore, can’t be culpable. I don’t think a jury will buy what he may be selling.

Finally, I would be remiss in not thanking all of you for your continued support. Many of your comments about the upcoming book made it into the proposal and helped convince my publisher that this is a story the public wants to read. Your comments, likes, subscribes, and follows mean the world to me.

Clarifying the motion to clarify

Hello friends! Many of you have asked me to explain the state’s Motion to Correct Case Heading and The Clarify the Court Order Dated August 6, 2021. Many people jumped to the conclusion that this is just Lori wanting the court to call her by the last name of Daybell. Some think this is an end-run to sever the cases. It’s neither. Let’s break it down.

The prosecutor has discretion whether to charge multiple defendants under a single indictment or to issue individual indictments. When two people are listed on a single indictment, the court should file the indictment under a single case number. Instead, the Fremont County court filed a separate case and assigned a separate case number for each defendant. Because they are codefendants, the attorneys and the court have filed all the relevant documents in both cases, leading to confusion. For example, people jumped to conclusions when Chad’s death penalty notice was filed in Lori’s case. The judge made it even more confusing by issuing an order that said the trials would be together, but individual filings could be made in one case and not the other. That’s unusual, and as Rob Wood points out, it can cause its own complications. According to the state’s motion, the judge met in chambers with the attorneys and the court administrator to discuss this. The administrator said they filed separate cases because of the way the court database is organized. While I know that there are limitations in the Odyssey system (the court’s database software), this seems odd to me. We often combined documents to save time and paper in the old days, but now every document, motion, and declaration has to be filed as a separate document. That said, it should not preclude the filing of a single indictment with two codefendants. The judge directed the administrator to look into the matter and said there was no reason the state should be required to file a motion to deal with the issue. However, when the court did not correct the problem, the state filed the motion. Wood and Blake argue that the judge’s order amounted to a partial severing of the cases. I think they are correct. I think the court should have charged the defendants together in one case number. If the cases were later severed for trial, the cases could be divided. It is more than just an academic question. It also has to do with the timing of trials and whether Chad’s trial could be delayed because Lori is incompetent and how motions are heard.

The issue is more than just who appears in the case heading or whether the defendants have two case numbers. There are valid constitutional questions on both sides of the issue. When cases are joined, motions are filed and heard jointly. The prosecutor points out that the way the court’s current order is written if the court hears a motion like the change of venue only as to Chad, it deprives Lori of the ability to appear and respond. Another good example is the consumptive DNA testing. If the court makes a ruling on that motion while Lori’s case is stayed, she won’t have the chance to weigh in on the issue before the DNA testing is done and the sample is consumed. In fact, there’s also more news on that front that I will get to in a moment.

The judge denied the prosecutor’s motion yesterday and said things would remain as they are. But what happens now? The state argues that the cases are joined and that because of that, Chad’s case is effectively stayed too. But John Prior has filed a motion to sever the cases.

Can the judge decide any motions while Lori’s case is stayed and she cannot weigh in due to her incompetence? Hmmm. As Lindsey Blake noted in yesterday’s hearing, this is a novel issue. That means it’s an issue that there is no precedent for. As you may have noticed, courts rely heavily on precedent. In fact, the legal doctrine of stare decisis (stand by things decided) is at the heart of our judicial system. It stands for the idea that once an issue is decided, we will stick to that decision unless there is a very compelling reason to overturn it. It stems from the idea that there must be finality in decisions; otherwise, our legal system gets bogged down in re-deciding the same issues over and over. But what happens when there is no precedent in the state? Sometimes (as we saw in the state’s motion), they rely on federal law or decisions in other states. However, precedent from other jurisdictions is not controlling. The issue could wind up before the Idaho Supreme Court, but getting something before the state supreme court is a long process. The entire question may be rendered moot (no longer relevant) if Lori becomes competent.

Based on his comments yesterday, Judge Boyce appears to believe that the cases are both stayed as long as Lori is incompetent. Hearings on Prior’s motions to sever the cases and change the venue are unlikely to occur while Lori is incompetent. Joinder vs. severance is always a push-pull issue. Joinder leans toward efficiency and certainty. The state only presents their case once, witnesses only testify once, one judge makes evidentiary decisions, and one jury decides the case. Severance leans toward protecting each defendant’s constitutional right to due process and a fair trial. Cases are severed, so the evidence and argument presented on behalf of one defendant do not prejudice the other.

The state also filed a Response to Motion to Oppose use of and Motion to Preserve Fingerprint Samples. As you may recall, the state notified the court and the defendants that they had samples that the lab wanted to test but that the test would consume the sample. We got a bit more information in the state’s recent response. The lab is in possession of fingerprints lifted from tools in Chad Daybell’s shed and from the material that wrapped JJ’s body. Testing those samples could produce what is called “touch” DNA. That is, each time we touch something, in addition to our fingerprints, we also leave minute traces of our DNA, carried by the oil and sweat on our skin. That DNA can be tested and used to identify the depositor further. However, testing the sample will destroy the fingerprint. Typically, the fingerprints are preserved as scanned high-resolution images in this situation, and then the testing is performed. In any case, when there is only one shot at testing, both sides should have experts present to assure all testing procedures and protocols are correctly followed. The state’s motion also indicates that the state crime lab does not allow observers. Therefore, the judge has two choices. He can order the state crime lab to permit the defense experts to observe, or he can order that an independent lab process the samples and permit the state lab technicians to observe. The judge does not have to decide because, for the moment, the state says they will not pursue the testing.

The state has decided not to pursue testing the fingerprint samples because they don’t want to risk that the evidence will not be admissible against Lori. Suppose the state goes forward with the testing while Lori is incompetent. In that case, her lawyers could argue that the evidence can’t be considered at her trial because she could not argue the motion before the tests consumed the samples or have her own experts observe the testing. At this point, the state believes that preserving the fingerprints and their chance to test later is more important than the evidence the touch DNA might produce.

I’ve had a question from a follower; it’s a general question that may be more relevant to other true crime cases, but it’s worth mentioning here. Her question: what is the difference between homicide and murder? There is a big difference. When police say a person’s death has been ruled a homicide, it simply means that a human was killed by another human. It does not automatically mean a crime has been committed. There are a number of ways one person can kill another that do not meet the legal definition of murder. The most common instance is negligent homicide, which happens when someone’s negligence causes the death of another person. For example, an adult who accidentally leaves his child in his car in the summer could be guilty of negligent homicide if the child dies. Since the death was not intentional, and the defendant did not kill the child with “malice aforethought,” it’s not murder. In other words, homicide is a factual conclusion, while the law defines murder. People sometimes cause the death of another person by accident even if they are not negligent because, as we all know, shit happens. It will be up to law enforcement to determine whether the facts surrounding a death indicate that the person doing the killing intended to kill a person.

I will be joining Lauren Matthias on her YouTube channel, Hidden True Crime, for a live show tomorrow night. Join us Friday, September 24, 2021, at 7 pm PDT at https://www.youtube.com/c/HiddenTrueCrime.

Can Lori be forced to take medication?

Good morning friends! There is a development to chat about. I also want to answer some questions that we didn't get to in my last live YouTube with Lauren on Hidden True Crime. Before I begin, though, I want to thank you all for your tremendous interest and support. More than 4000 of you have subscribed to the newsletter, and my appearances on Hidden True Crime attract an average of 10K views a week. Thanks to all of you that live outside the United States, in places as far-flung as England, Ireland, New Zealand, and South Africa, who set their alarms and get up at all hours to listen and chat with us live, you add so much to the conversation!

There was an unexpected hearing held yesterday, Wednesday, September 15, 2021. It was held in private and sealed. The issue of how many private hearings are being held is a topic for a future newsletter – expect it soon. Documents released after yesterday's hearing indicate that the issue is that Lori Vallow Daybell is refusing medication that could restore her to competency.

So what happens when a person refuses medication? Idaho statute 18-212(3) provides the answer.

(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 the court makes each of these findings, treatment shall be ordered consistent with the findings.

The prosecutor asked the court to allow the state to discuss the case with Lori's treatment providers at the Idaho Department of Health and Welfare (IDHW) and asked to share the original assessment with them. The state's motion goes on to say that IDHW wants a court order to cover their HIPPA obligations before they talk to anyone. That's not unusual. The motion also says that IDHW has repeatedly requested a copy of Lori's initial assessment and any raw testing data and has not received it. That is surprising to me. I have never seen a case where the treatment provider wasn't given a copy of the original assessment as part of the defendant's records. As a result of yesterday's hearing, the judge ordered the medical providers to communicate with the state. The court also authorized the state to give IDHW a copy of Lori's original assessment. The judge then continued the hearing until today, Thursday, September 16, 2021, at 3 pm. The court database indicates a subpoena was issued for Deputy Attorney General Amy Long to appear at yesterday's hearing. It's unclear what Long's duties are in the AG's office, but I am speculating that she is the attorney that represents the IDHW and is probably being called to represent them in the hearing. It appears the judge continued the hearing so that he could hear information from treatment providers. Ultimately, the judge decides whether Lori is competent, using the information he receives from her providers. The need to extend her treatment makes more sense now that we know she has been refusing medication. The judge won't allow her to extend her treatment indefinitely while refusing to take medication. I expect that as long as the treatment providers indicate that medication is the most effective treatment, the judge will order forced medication.

There is an interesting side note to yesterday's hearing. According to the court record, Jim Archibald appeared on Lori's behalf. Mark Means was not present. That could be a significant development; it could be that Means simply had some other obligation that he couldn't quickly reschedule, but it could also signal a change in Lori's defense team. We will just have to wait and see.

We know that the continuation of yesterday's hearing was held today, but again, it was a closed hearing, and we do not know what happened.

I went back through questions asked during my September 10, 2021, live broadcast on YouTube with Lauren Matthias on Hidden True Crime. You can find that episode at https://www.youtube.com/watch?v=erCDdKd2bJs&t=2010s. Lauren has great moderators that work hard during those broadcasts, but we never get to all the questions. I'm sure if one person asks a question, others are wondering the same thing, so I decided to respond to a few of them here.

Who benefits if the cases are severed? I think both defendants benefit, but it will likely help Chad the most if his defense is that he was framed. Not having Lori and her attorney in his trial, ready to rebut everything he says, helps him a lot. From an emotional standpoint, I think it helps Chad with the jury. Juries will look more harshly on a mother who kills her children than on an unrelated boyfriend. It's also to Chad's advantage to move forward while Lori is still incompetent. While it's unlikely that Lori would take the stand, her incompetence removes the possibility entirely.

You talked about John Prior reserving his right to challenge the indictment and the grand jury process. What sort of challenges could he make? In every case, the defendant has the right to challenge the indictment process. First, the defendant has the right to assure that the grand jury isn't packed with people who might be prejudiced. Second, the defendant has the right to review the testimony presented to the grand jury, that the process was conducted properly and was fair. Third, the defendant has the right to challenge the indictment document itself. The document must state a crime for which the defendant can be held responsible and must be signed and dated by the grand jury foreperson. It must allege that the crime happened in the jurisdiction and specify when it happened, even if it's just within a range of dates. The grand jury process and the indictment may be perfect, and there may be no basis for a challenge, but Prior can't know that until he receives and reviews the transcript of the proceeding. These kinds of challenges are waived if they aren't filed, so Prior can't afford to miss something.

When will we see Tammy Daybell's autopsy? The public probably won't see the actual document until after the trial. However, I expect there will be extensive testimony at trial about the results.

If Lori is incompetent, why isn't Chad? First, we don't know much about what led Lori's attorney to question her competency, but I've heard rumors concerning behavior in the jail. We have heard nothing that would suggest that Chad has decompensated in jail. We talked a lot about when religious belief tips over into insanity. While Chad's appears deeply invested in his aberrant beliefs, and it seems he may have justified murder based on them, that alone is not sufficient to find that he is incompetent. He appears to understand the court process and be able to aid and assist his attorney.

Could Lori be malingering? It's possible, but as time goes on, less likely. It's difficult, even for someone like Lori, who is a good actress (just remember her chat with Detective Ball on the day of the welfare check), to maintain that level of acting. It isn't uncommon for someone who is mentally ill to decompensate in jail, where all their privacy, control, and autonomy are stripped from them.

What happens if Lori is not restored? In the most extreme case, the criminal charges could be dismissed. But let's remember, Elizabeth Smart's kidnappers, Brian David Mitchell and Wanda Barzee, and Ron Lafferty (the subject of John Krakauer's book, Under the Banner of Heaven) were all eventually restored to competency and convicted, even though it took several years.

Does Chad, as Lori's husband, have any say in her medical treatment? No. It would be inappropriate for him to direct his codefendant's mental health treatment. Because Lori has been committed, she is a ward of the court, and it's the court's decision.

Could the family file a civil suit against Lori and Chad? If you recall, after OJ Simpson was found not guilty for the murder of his wife, Nicole Brown, the Brown family filed a civil wrongful death suit and won. This happened because the standard of proof is lower in a civil suit. The criminal charges had to be proven beyond a reasonable doubt (often expressed as 99% certainty), while a civil suit only needed to be proven that it was more likely than not that OJ caused Nicole's death (often expressed as 51% certainty). While Lori or Chad's family could file a civil suit, at least as it stands now, there is little reason to. Civil suits are about collecting money damages. It's pointless to sue someone who has nothing. Lori has been declared indigent. Chad's only asset was his home, which he has traded to John Prior in exchange for his legal fees. Filing a civil suit may give the family access to the evidence. Still, the state has the right to ask the court to stay any civil actions (and any accompanying release of discovery) until after the criminal case, and the court would probably do so.

Can the insurance company file suit against Chad and Lori? Certainly, but once again, there has to be something to go after. Neither of them has anything, so a lawsuit by the insurance company would probably be throwing good money after bad.

Could the family file a lawsuit against the Chandler Police Department? Perhaps. It's hard to say at this point whether the Chandler police did an adequate job of investigating Alex Cox's role in Charles Vallow's murder. From the big document dump, it appears that they were suspicious of the circumstances surrounding Charles's death but didn't really kick it into high gear until Brandon Boudreaux identified Alex as the person who shot at him. Alex died shortly after that incident. It's easy to jump to the conclusion that if police had arrested Alex in July, he would not have been free to kill the children in September, but it's also possible Chad and Lori would simply have come up with a different plan. There is so much we don't know yet about the case that I think it would be hard to evaluate a civil case.

What would it take to get Mark Means off the case? Are Archibald and Means working together? Are Means and Prior working together? Should John Prior bring in a lawyer who is death-penalty qualified? Do you despise Mark Means? In other words, you want to know about all things having to do with the lawyers. Mark Means and Jim Archibald have been seen going in and out of the jail together, so we must assume they are working together on some level. However, we also saw Archibald file his own discovery request, suggesting that Means isn't sharing with his new pal. Even though their offices are in the same suite, I've been told that Prior and Means are not friends and are not working together. Early in the case, I tried my best to give Mark Means the benefit of the doubt. I've taken cases where I had to spend time learning new procedure and law. It takes time and study but is allowable under the ethics rules. A lawyer must educate themselves about any new areas of the law involved in a case they take and become reasonably qualified. They are not required to know everything, but they must know when and how to access the information they need. It's shocking that Mark Means still does not fully understand the differences between the rules of civil procedure and the rules of criminal procedure. I don't understand Means's attachment to his client or his willingness to risk his license to practice law for her. On a recent episode of The Lawyer You Know on YouTube, Peter Tragos examined Mark Means' website and checked out the claims Means makes. He discovered that many of Means' claims are either untrue or inflated. Falsely advertising his credentials is something a lawyer can be disciplined for by the Idaho State Bar. The Idaho bar does not release information about ongoing investigations, so it's impossible to find out whether Means is presently under investigation. Still, I would be surprised if he is not. It is clear that Means is not competent to represent Lori Vallow. Lori is entitled to a defense by a competent lawyer, but her continued insistence on keeping Means may backfire. The judge has appointed a very qualified attorney for her. If Lori insists on keeping Means and following his advice, it will foreclose any chance she might have of claiming ineffective assistance of counsel on appeal. No, I don't despise Mark Means; there are very few people in the world I despise. I feel disgusted with his arrogance and much of what he does, and sorry that it does not appear that Lori has competent counsel. As we've said before, a defendant is entitled to hire any lawyer they want, and they are stuck with that lawyer's qualifications. That said, John Prior is no Mark Means. Prior is experienced and cautious. I'm sure he is consulting with a death penalty qualified lawyer, and we may very well see him bring someone into Chad's case at some point.

Will there be a new judge if there is a change of venue? Under Idaho law, if the judge grants the change of venue, the decision is up to the judge. He can remain with the case and travel to the new venue or ask the state court administrator to appoint a new judge in the receiving jurisdiction. If Judge Boyce remains on the case, the state will have another judge (often a retired judge) fill in for him in Fremont County while he presides over the case in the new jurisdiction. I expect the judge to grant the change of venue motion. It will be his call whether he remains on the case or not. I expect the case will be moved to Boise, but Idaho Falls and Twin Falls may also be options.

If Chad's trial happens first and he is convicted, can he be compelled to testify at Lori's trial? The short answer is yes. Once Chad is convicted, he can no longer invoke his Fifth Amendment protection against self-incrimination. This is the downside of the cases being severed and Chad being tried first.

Does the indictment language that Chad and Lori had "extreme beliefs" help the defense in bringing a mental disease or defect case, and would Lori have to admit guilt to use mental defect as a defense? The indictment says that Chad and Lori were motivated by their extreme beliefs, but it does not say that their extreme religious beliefs excused their actions in any way. The indictment's use of the language acknowledges that they had extreme beliefs and may have been motivated by them, but it doesn't excuse their behavior. In Arizona, in order to use mental health as a defense, Lori would have to plead "guilty but insane." In Idaho, the only way to use it is to claim Lori was so insane she could not knowingly or intentionally murder a human being.

Will Arizona ever get a crack at Lori? Arizona could ask Lori to be transported to answer charges and require a psychiatric evaluation there. It's unlikely, though. Most of the time, states want the defendant's charges in the first state wrapped up before she's transported to the second state. It's just cleaner and less complicated that way.

I hope you found this question roundup interesting and helpful.

This Week's Recap - Continuances and Motions to Sever

Hello Friends! It’s been a busy week for me, writing three newsletters! On to number three!

First, though, I want to give you an update on the status of my book. Nonfiction books, like mine, Children of Darkness and Light, The Lori Vallow Story, are sold on a book proposal rather than a completed manuscript. The author creates a proposal that outlines who they are, what the story is about, who their audience will be, and provides sample chapters. My proposal finished at 60 pages. Once the proposal is completed, the author or their agent sends the proposal out to publishers, hoping to interest one in buying the book. I explained all of this because my agent began submitting my proposal to publishers this week. It’s exciting and nerve-wracking because a good book deal will allow me to devote my full attention to telling the whole story once the trials are over. So please send some good energy into the universe on the book’s behalf, and I want to thank everyone who has supported the newsletter and the future book so far.

I love getting questions from readers, and lately, my inbox has been full. Tyler Burton asked, of the motion to sever the trials, “How does this interface strategically with Chad’s defense. possible separation of trials. possible change of venue, possible divorce? I imagine it can be used for Chad’s defense to some extent, too?”

Well, Tyler, you’ve anticipated the focus of today’s newsletter. A few things happened this week that are important. First, there was a status hearing on September 8, 2021. All the lawyers and Chad Daybell were present. First, Judge Boyce took up Lori’s case. He reported that he had received the full report from Lori’s treatment provider and was satisfied that Lori was still incompetent and needed more time for treatment. The judge continued her commitment for an additional 180 days (six months) but said that they would revisit his order if she became competent sooner.

The judge then turned his attention to Chad’s case and reviewed all of the pending issues. In every case, the defense can and should challenge any defects or deficiencies in the charging process, including how the grand jury was conducted and whether the charging indictment is correct. If those challenges aren’t filed before other more substantive motions, they can be presumed to have been waived. The judge recognized that it isn’t possible to formulate those objections without a complete transcript of the grand jury. The judge said he had been told it was nearly finished, but not quite. He granted John Prior extra time to file any of those motions. The judge also decided on his own motion to continue Chad’s trial that was scheduled to begin on November 8, 2021. As you may recall, Chad waived his speedy trial rights.

The reason the judge continued the trial is that there are several pending motion hearings. The state filed a notice about lab testing. They notified the defense that certain testing would require using up some small forensic samples. The judge has set a hearing on September 20, 2021, to deal with that issue. A hearing is scheduled for October 5, 2021, at 9 am on Chad’s motion to change venue. The judge cited these pending motions and the new motion to sever the cases as sufficient reason to vacate the November trial date. The judge said he would set a new trial date after the decision in the change of venue motion.

Probably the most significant development was the motion to sever the cases. I have discussed joinder and severance in several previous newsletters. In short, cases are joined for judicial and prosecutorial efficiency. Trials are severed for fairness. If there is any chance that the evidence against one defendant could prejudice the other, the cases should be severed. Here is the Idaho rule:

Idaho Criminal Rule 14. Relief from Prejudicial Joinder

If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in a complaint, indictment or information, the court may order the state to elect between counts, grant separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the state to deliver to the court for inspection in camera any statements or confessions made by the defendants that the state intends to introduce in evidence at the trial.

Many readers have asked if I think the motion to sever telegraphs Chad’s trial strategy. I think, when added to his children’s comments in their recent 48 Hours interview, it may. Severing the trials means that only evidence relevant to the charges against Chad will come in at trial. It means the jury will not be watching the body language of a mother who allegedly killed her children during Chad’s trial. It also means that Chad can raise any defense without Lori sitting next to him. More importantly, without Lori’s lawyer presenting rebutting testimony and turning the whole thing into a he said/she said battle.

I think this may signal a change in strategy and perhaps even a change of heart for Chad. Nothing makes reality come crashing in faster than a notice that the prosecutor intends to seek the death penalty. I am not sure if he has come around so far as entertaining a plea offer, but clearly, he’s come around enough to be willing to throw Lori under the bus with an “I was framed” defense. It’s hard to gauge whether such a defense could be successful because we can’t see all the evidence. If there are incriminating text messages, it may be hard to make the case that Lori and Alex did all the dirty work and set him up to take the fall. I think the “I was set up” argument is harder to make when it comes to Tammy’s death. I suppose he could argue that he was manipulated by Lori, taken in by her feminine wiles, all the while unaware that she was a schizophrenic who manipulated him into believing her delusions were messages from God.

Recently, a reader called me out on describing possible arguments the defense could make. Please know that when I talk about viable arguments the defense might make, I am not expressing an opinion about the case or saying that I would make that argument if I were Chad’s attorney. I’m only illustrating the place where the facts and the law intersect.

When I was in practice, an attorney I knew had the best win/loss record among the local defense bar. He also was notorious for making arguments that most of us would have been embarrassed by. We called them the arguments you needed to put a bag over your head to make. But his win record was better than anyone else’s because occasionally, he’d win on one of those silly arguments. That’s sometimes that way it works. Just because I point out a possible argument does not mean the defense will or should take that position. It only means the law and facts could support the argument.

Insanity In Arizona - What Lori Might Do.

Hello Friends! This newsletter is part two of my two-part post analyzing the possibility of Lori’s defense team arguing that she is insane. If you missed the first part, yesterday’s post, titled Insanity in Idaho – What Lori Might Do, discussed how insanity could work in her favor in Idaho. Today, we turn our attention to the law in Arizona.

Arizona permits a defense of Guilty But Insane. There is a subtle but important difference between this and typical insanity defenses. In states that treat mental disease or defect in the traditional way, insanity is a defense. That means the defendant’s behavior is excused, and they are not culpable because they lacked the capacity to appreciate the criminality of their actions or conform their conduct to the requirements of the law.

In 1993, the Arizona legislature enacted the current law under which a person may be found “guilty except insane,” only “if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong. Here is Arizona’s law:

13-502. Insanity test; burden of proof; guilty except insane verdict
A. A person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong. A mental disease or defect constituting legal insanity is an affirmative defense. Mental disease or defect does not include disorders that result from acute voluntary intoxication or withdrawal from alcohol or drugs, character defects, psychosexual disorders or impulse control disorders. Conditions that do not constitute legal insanity include but are not limited to momentary, temporary conditions arising from the pressure of the circumstances, moral decadence, depravity or passion growing out of anger, jealousy, revenge, hatred or other motives in a person who does not suffer from a mental disease or defect or an abnormality that is manifested only by criminal conduct.
B. In a case involving the death or serious physical injury of or the threat of death or serious physical injury to another person, if a plea of insanity is made and the court determines that a reasonable basis exists to support the plea, the court may commit the defendant to a secure state mental health facility under the department of health services, a secure county mental health evaluation and treatment facility or another secure licensed mental health facility for up to thirty days for mental health evaluation and treatment. Experts at the mental health facility who are licensed pursuant to title 32, who are familiar with this state’s insanity statutes, who are specialists in mental diseases and defects and who are knowledgeable concerning insanity shall observe and evaluate the defendant. The expert or experts who examine the defendant shall submit a written report of the evaluation to the court, the defendant’s attorney and the prosecutor. The court shall order the defendant to pay the costs of the mental health facility to the clerk of the court. The clerk of the court shall transmit the reimbursements to the mental health facility for all of its costs. If the court finds the defendant is indigent or otherwise is unable to pay all or any of the costs, the court shall order the county to reimburse the mental health facility for the remainder of the costs. Notwithstanding section 36-545.02, the mental health facility may maintain the reimbursements. If the court does not commit the defendant to a secure state mental health facility, a secure county mental health evaluation and treatment facility or another secure licensed mental health facility, the court shall appoint an independent expert who is licensed pursuant to title 32, who is familiar with this state’s insanity statutes, who is a specialist in mental diseases and defects and who is knowledgeable concerning insanity to observe and evaluate the defendant. The expert who examines the defendant shall submit a written report of the evaluation to the court, the defendant’s attorney and the prosecutor. The court shall order the defendant to pay the costs of the services of the independent expert to the clerk of the court. The clerk of the court shall transmit the reimbursements to the expert. If the court finds the defendant is indigent or otherwise unable to pay all or any of the costs, the court shall order the county to reimburse the expert for the remainder of the costs. This subsection does not prohibit the defendant or this state from obtaining additional psychiatric examinations by other mental health experts who are licensed pursuant to title 32, who are familiar with this state’s insanity statutes, who are specialists in mental diseases and defects and who are knowledgeable concerning insanity.
C. The defendant shall prove the defendant’s legal insanity by clear and convincing evidence.
D. If the finder of fact finds the defendant guilty except insane, the court shall determine the sentence the defendant could have received pursuant to section 13-707 or section 13-751, subsection A or the presumptive sentence the defendant could have received pursuant to section 13-702, section 13-703, section 13-704, section 13-705, section 13-706, subsection A, section 13-710 or section 13-1406 if the defendant had not been found insane, and the judge shall sentence the defendant to a term of incarceration in the state department of corrections and shall order the defendant to be placed under the jurisdiction of the psychiatric security review board and committed to a state mental health facility under the department of health services pursuant to section 13-3994 for that term. In making this determination the court shall not consider the sentence enhancements for prior convictions under section 13-703 or 13-704. The court shall expressly identify each act that the defendant committed and separately find whether each act involved the death or physical injury of or a substantial threat of death or physical injury to another person.
E. A guilty except insane verdict is not a criminal conviction for sentencing enhancement purposes under section 13-703 or 13-704.

In contrast to the traditional mental health defense, mental defect is not a defense that excuses a defendant’s criminal conduct in Arizona. Instead, in Arizona, once the defendant’s guilt is established, if the defense proves by clear and convincing evidence (often quantified as a 75% certainty) that defendant is insane, the defendant is sentenced to the sentence they would have received had they not been insane, and committed to a mental facility. If the defendant is found to be sane at any time, they serve the remainder of their sentence in a corrections facility. In other words, Arizona is more like Idaho than it is like other states that employ the more traditional use of insanity as a defense. Like Idaho, insanity will not excuse a defendant’s criminal behavior; unlike Idaho, a finding of insanity in Arizona mandates how a defendant will serve their sentence.

In the case of Clark v. Arizona, 548 U.S. 735 (2006), the U.S. Supreme court took up an issue similar to this case addressing the argument we may see in Idaho, that Lori was too mentally incompetent to form the required mental state to commit the crime. The U.S. Supreme court ruled that Arizona did not violate the defendant’s rights when the judge barred the defendant from presenting evidence to rebut the required mental state of his crime. Clark remains good law and will be applicable in and Arizona, but not in Idaho. The case says the court may bar the evidence but doesn’t say it must. The case won’t apply in Idaho because Idaho law expressly permits that evidence. Idaho statute 18-207(3) says, “Nothing herein is intended to prevent the admission of expert evidence on the issue of any state of mind which is an element of the offense, subject to the rules of evidence.”

It seems likely that the defense in Arizona will prevail on a claim that Lori is guilty but insane. In that case, if she is convicted, once Lori serves whatever sentence she receives in Idaho, she will be committed to the supervision of the Psychiatric Security Review Board (PSRB) and placed in a secure facility for the duration of her sentence. If, at some point, the PSRB determines Lori is sane, she would be transferred to the department of corrections to serve the remainder of her sentence. As the Arizona statutes cited below show, first-degree murder is a class one felony. Conspiracy to commit a class one felony is punishable by a minimum of 25 years before the person is eligible for parole. Unlike Idaho, conspiracy to commit murder does not carry the possibility of the death penalty.

13-1003. Conspiracy; classification
A. A person commits conspiracy if, with the intent to promote or aid the commission of an offense, such person agrees with one or more persons that at least one of them or another person will engage in conduct constituting the offense and one of the parties commits an overt act in furtherance of the offense, except that an overt act shall not be required if the object of the conspiracy was to commit any felony upon the person of another, or to commit an offense under section 13-1508 or 13-1704.
B. If a person guilty of conspiracy, as defined in subsection A of this section, knows or has reason to know that a person with whom such person conspires to commit an offense has conspired with another person or persons to commit the same offense, such person is guilty of conspiring to commit the offense with such other person or persons, whether or not such person knows their identity.
C. A person who conspires to commit a number of offenses is guilty of only one conspiracy if the multiple offenses are the object of the same agreement or relationship and the degree of the conspiracy shall be determined by the most serious offense conspired to.
D. Conspiracy to commit a class 1 felony is punishable by a sentence of life imprisonment without possibility of release on any basis until the service of twenty-five years, otherwise, conspiracy is an offense of the same class as the most serious offense which is the object of or result of the conspiracy.
13-1105. First degree murder; classification
A. A person commits first degree murder if:
1. Intending or knowing that the person’s conduct will cause death, the person causes the death of another person, including an unborn child, with premeditation or, as a result of causing the death of another person with premeditation, causes the death of an unborn child.
2. Acting either alone or with one or more other persons the person commits or attempts to commit sexual conduct with a minor under section 13-1405, sexual assault under section 13-1406, molestation of a child under section 13-1410, terrorism under section 13-2308.01, marijuana offenses under section 13-3405, subsection A, paragraph 4, dangerous drug offenses under section 13-3407, subsection A, paragraphs 4 and 7, narcotics offenses under section 13-3408, subsection A, paragraph 7 that equal or exceed the statutory threshold amount for each offense or combination of offenses, involving or using minors in drug offenses under section 13-3409, drive by shooting under section 13-1209, kidnapping under section 13-1304, burglary under section 13-1506, 13-1507 or 13-1508, arson under section 13-1703 or 13-1704, robbery under section 13-1902, 13-1903 or 13-1904, escape under section 13-2503 or 13-2504, child abuse under section 13-3623, subsection A, paragraph 1 or unlawful flight from a pursuing law enforcement vehicle under section 28-622.01 and, in the course of and in furtherance of the offense or immediate flight from the offense, the person or another person causes the death of any person.
3. Intending or knowing that the person’s conduct will cause death to a law enforcement officer, the person causes the death of a law enforcement officer who is in the line of duty.
B. Homicide, as prescribed in subsection A, paragraph 2 of this section, requires no specific mental state other than what is required for the commission of any of the enumerated felonies.
C. An offense under subsection A, paragraph 1 of this section applies to an unborn child in the womb at any stage of its development. A person shall not be prosecuted under subsection A, paragraph 1 of this section if any of the following applies:
1. The person was performing an abortion for which the consent of the pregnant woman, or a person authorized by law to act on the pregnant woman’s behalf, has been obtained or for which the consent was implied or authorized by law.
2. The person was performing medical treatment on the pregnant woman or the pregnant woman’s unborn child.
3. The person was the unborn child’s mother.
D. First degree murder is a class 1 felony and is punishable by death or life imprisonment as provided by sections 13-751 and 13-752.

As we saw in both the Lafferty and the Mitchell and Barzee cases, a finding of incompetence rarely means the defendant escapes culpability. In both of those cases, justice was delayed but not denied. In both cases, the defendants were committed for restoration treatment that lasted for years. Nonetheless, in both cases, the defendants were ultimately restored to competency tried and convicted.

Earlier this week, Chad’s attorney, John Prior, filed a motion to sever Chad’s case from Lori’s. There was also a status hearing held on Wednesday, September 8, 2021. In tomorrow’s Friday newsletter, we’ll discuss those developments and what happens next. In addition, I will appear tomorrow evening on YouTube’s Hidden True Crime with Lauren Matthias at 7 pm PDT to discuss all the recent developments. I hope you will join us.

Insanity and Idaho - What Lori Might Do

Hello, Friends. This newsletter will be in two parts and somewhat technical, so throw on your ghillie suit and join me in the weeds. Look for the second installment in your email tomorrow.

It should come as no surprise to you that mental health and the law often intersect. This week, newsletter subscriber, Mary Jo DiBella, raised some interesting questions for me in an email. Her question is, when does religious belief become insanity, and when does that insanity excuse criminality, including murder?

It’s a great question, and it’s at the heart of the Vallow/Daybell case. If we believe, as I do, that Lori and Chad believe deeply in the religious doctrine they espouse, then we have to ask when does religious belief become insanity?

History is littered with people, from Joan of Arc and the knights of the Crusades to our own pilgrim mothers and fathers, who killed in the name of their religious beliefs.

We need to take a look at the state of the law regarding insanity. It’s is a very broad area of inquiry, so I’m narrowing it down to the law in Idaho and Arizona.

Let’s start with Idaho. As we all know, the defense of insanity is not available in Idaho. Still, a defendant may be allowed to present evidence of mental disease or defect to prove that they were incapable of forming the intent necessary to commit the crime.

Here is the Idaho law:

18-207. MENTAL CONDITION NOT A DEFENSE — PROVISION FOR TREATMENT DURING INCARCERATION — RECEPTION OF EVIDENCE — NOTICE AND APPOINTMENT OF EXPERT EXAMINERS. (1) Mental condition shall not be a defense to any charge of criminal conduct.
(2) If by the provisions of section 19-2523, Idaho Code, the court finds that one convicted of crime suffers from any mental condition requiring treatment, such person shall be committed to the board of correction or such city or county official as provided by law for placement in an appropriate facility for treatment, having regard for such conditions of security as the case may require. In the event a sentence of incarceration has been imposed, the defendant shall receive treatment in a facility which provides for incarceration or less restrictive confinement. In the event that a course of treatment thus commenced shall be concluded prior to the expiration of the sentence imposed, the offender shall remain liable for the remainder of such sentence, but shall have credit for time incarcerated for treatment.
(3) Nothing herein is intended to prevent the admission of expert evidence on the issue of any state of mind which is an element of the offense, subject to the rules of evidence.
(4) No court shall, over the objection of any party, receive the evidence of any expert witness on any issue of mental condition, or permit such evidence to be placed before a jury, unless such evidence is fully subject to the adversarial process in at least the following particulars:
(a) Notice must be given at least ninety (90) days in advance of trial, or such other period as justice may require, that a party intends to raise any issue of mental condition and to call expert witnesses concerning such issue, failing which such witness shall not be permitted to testify until such time as the opposing party has a complete opportunity to consider the substance of such testimony and prepare for rebuttal through such opposing expert(s) as the party may choose.
(b) A party who expects to call an expert witness to testify on an issue of mental condition must, on a schedule to be set by the court, furnish to the opposing party a written synopsis of the findings of such expert, or a copy of a written report. The court may authorize the taking of depositions to inquire further into the substance of such reports or synopses.
(c) Raising an issue of mental condition in a criminal proceeding shall constitute a waiver of any privilege that might otherwise be interposed to bar the production of evidence on the subject and, upon request, the court shall order that the state’s experts shall have access to the defendant in such cases for the purpose of having its own experts conduct an examination in preparation for any legal proceeding at which the defendant’s mental condition may be in issue.
(d) The court is authorized to appoint at least one (1) expert at public expense upon a showing by an indigent defendant that there is a need to inquire into questions of the defendant’s mental condition. 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.
(e) If an examination cannot be conducted by reason of the unwillingness of the defendant to cooperate, the examiner shall so advise the court in writing. In such cases the court may deny the party refusing to cooperate the right to present evidence in support of a mental status claim unless the interest of justice requires otherwise and shall instruct the jury that it may consider the party’s lack of cooperation for its effect on the credibility of the party’s mental status claim.

The important analysis is in the exception: a defendant can present evidence of mental disease or defect to prove that they were incapable of forming the intent necessary to commit the crime. Let’s look at Idaho’s definition of murder:

18-4001. MURDER DEFINED. Murder is the unlawful killing of a human being including, but not limited to, a human embryo or fetus, with malice aforethought or the intentional application of torture to a human being, which results in the death of a human being.

That raises the question, what is malice?

18-4002. EXPRESS AND IMPLIED MALICE. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

So malice is unlawfully taking the life of a fellow creature with deliberate intention. Interesting.

One of the jobs of a defense lawyer is to parse language and dissect statutes. For example, why did the Idaho legislature define malice as taking the life of a fellow creature rather than a human? Was it their intent to assure the statute included human fetuses, or did they intend to include zombies? Yes, lawyers really do this sort of deep dive into legislative intent, including reading the legislative history of a particular law and listening to recordings of legislative testimony and discussion.

Central to all criminal statutes is the mental state, which lawyers refer to as the mens rea. For most acts to be a crime, they must be committed with the necessary mental state. The common mental states are knowing, intentional, deliberate, and reckless. There are a handful of crimes that do not require a mental state. For example, in many states, there is no mental state required for the crime of being a felon in possession of a firearm. In other words, if you are a felon and are in possession of a firearm you have committed the crime. There is no requirement that you do it intentionally. If your friend puts a gun in your car, it’s still a crime. Proving mental state – that the defendant intentionally or knowingly committed the crime – is the first order of business for the prosecutor.

Here is the problem for prosecutors: it has been widely disseminated online that Lori was diagnosed with adult-onset schizoaffective disorder. I consulted the Cleveland Clinic’s website for some basic definitions. Schizoaffective disorder combines the features of two conditions, schizophrenia and mood disorder.

Schizophrenia is a psychosis where the person may lose touch with what is real and be unable to organize their thoughts so that the world seems like a jumble of thoughts, sounds, and sights. About one in 200 people will develop schizophrenia, and while it is more common in men in their teens and twenties, it can develop for anyone and at any stage of life. Some symptoms include seeing, hearing, or even smelling things that are not real, and having odd beliefs that are not based in fact, being unable to make sense of the world, and having moods that do not fit with events or circumstances. The diagnosis requires that the patient experience hallucinations, delusions, or disorganized speech for at least one month and exhibit gross disorganization, diminished emotional expression, or levels of interpersonal relations and self-care that are significantly below what they were before symptoms occurred.

When Schizophrenia is combined with a mood disorder, the diagnosis becomes a schizoaffective disorder. The most common mood disorders are bipolar disorder and depression. We have plenty of indications that Lori suffered from depression. Some friends report there were times Lori didn’t get out of bed. We also have reports that her mood was sometimes manic. While this is all anecdotal, it supports the idea that she may have schizophrenia and bipolar disorder. Both conditions are considered disorders in brain chemistry and are usually treated with a combination of medications.

The human brain is a miraculous and largely undiscovered territory. We know that each individual brain has its own unique chemistry. There is no test yet to determine which drug is the one that would work best with a specific individual’s brain chemistry. That means treatment is a series of trials. Doctors try a particular drug that has had success for other patients with similar diagnoses and wait to see if it helps. Most patients end up on a cocktail of psychotropic drugs that are adjusted as their psychiatrist evaluates the effectiveness. This is what is currently happening to Lori. It appears that the treatment professionals are not yet satisfied that they have found the winning combination for Lori.

If Lori is suffering from this disorder, how long has she had it, and what effect has it had on her life and her decision-making? And here we come to the question of religiosity versus insanity.

Where is the line? Most mental health conditions can’t be diagnosed with blood tests or brain scans. Instead, they’re diagnosed by observing a person’s behavior. In 2006, biologist Richard Dawkins characterized all belief in God as delusional in his book, The God Delusion.

The story of Ron Lafferty is illustrative. Ron and his younger brother, Dan, were the subject of John Krakauer’s book, Under the Banner of Heaven. The pair murdered their brother’s wife and their 15-month-old niece after Ron claimed God instructed them to “remove” several people. The Laffertys were members of an LDS fundamentalist sect. Ron’s attorneys questioned his competency before his first trial, but the trial judge found him competent. An appeal later overturned that conviction and sent it back to the trial court, where Ron was found to be incompetent and sent for restoration treatment. Three years later, Ron Lafferty was found competent once again and was retried, convicted, and sentenced to death in 1996. In August 2019, the 10th Circuit Court of Appeals refused to hear Ron’s appellate claims, thereby exhausting the last of his appeals. Lafferty died of natural causes in November 2019 before the state could execute him.

Similarly, Elizabeth Smart’s kidnappers, Brian David Mitchell and Wanda Barzee, claimed to have been directed by God to kidnap and marry 14-year-old Elizabeth. Mitchell and Barzee were charged in March 2003, but questions of whether they were competent delayed their court proceedings for years. Finally, Barzee was convicted in November 2009, and Mitchell was convicted and sentenced to two life sentences in December 2010.

In both cases, their extreme religious beliefs were considered indications of their incompetence. Yet, despite that, both were deemed competent when they committed the crimes and were restored to competency and convicted.

The difference? The defendants in those cases may believe God told them to commit their crimes, but neither pair believed their victims were no longer human.

Lori believed God was speaking to her and directing her actions. In one of the recordings Lori made with friends, she says, “I’ll just start by saying I am a personal witness of the resurrected Jesus Christ. I am his advocate; I am his friend. He is with me….” Those familiar with the language used by LDS members confirm that the meaning of this statement is that Lori claims Jesus has appeared to her. In the phone call Melanie Gibb recorded with her, Lori compares herself to the Book of Mormon figures of Alma and Moroni. She goes on to defend her claims that she has been in the presence of Jesus and Moroni, saying, “God knows it, and I will never deny him.” In the recorded conversation Melanie Gibb had with her Facebook friend, Shari Dowdle, Melanie tells Shari that when she questioned the wisdom of Lori canceling Charles’s airline ticket and hiding his truck, Lori assured Melanie that God had directed her to do those things.

It’s clear that Lori is convinced that she has spoken directly to, and receives direction from God. She believed she spoke directly to Jesus and God’s messenger, the angel Moroni. It raised the question: is this the testimony of a person who God has touched, or the delusion of someone with serious mental illness.

If schizoaffective disorder did indeed make Lori believe that she is a translated being, there’s ample evidence that her belief in her exaltation predated the deaths of Charles, Alex, the children, and Tammy. For example, in the bodycam footage of police talking with Charles Vallow, Charles tells them Lori believes she is a translated being and can kill him with her powers. In addition, we know from witnesses that Alex Cox was persuaded that Lori and Chad did, in fact, have some special power and that they did communicate with God.

Proof that Lori’s mental illness predated the crimes and may have been much more severe than anyone suspected is at the center of her defense, even in Idaho. If the defense can build a case that Lori was delusional and believed God was telling her that her husband and children were dark spirits, it’s only a quick jump to the claim that Lori did not have the mental capacity to form the intent.

If I were the defense, this would be my narrative:

• Lori believes to her core that she can talk to God, that he appears to her personally, and that He directs her actions.

• Lori read Chad’s books and believed that (as Chad said) his stories were thinly veiled prophecy. God affirmed that everything in Chad’s books would come to pass.

• God told Lori that she and Chad needed to be together to complete God’s mission.

• Lori is an exalted being, chosen to help get God’s chosen people through the tribulations of the end times so that Jesus can come again and they can all build their kingdom in the New Jerusalem.

• God told Lori the tribulation would begin in July 2020 to prepare the world for the return of Jesus unless Satan delayed it. He told her Satan’s demons are at work on the Earth, trying to delay and disrupt the second coming of Jesus. God told Lori it was her job to prevent Satan from delaying the return of Jesus.

• Satan’s demons can displace a person’s spirit, take over the body and force it to do Satan’s work. When that happens, the body is no longer human; the person’s spirit is in limbo, and the body goes dark.

• Only a few of God’s chosen can discern when a body has gone dark. Once the body goes dark, the only way to free the person’s spirit from limbo is to kill the body.

• Charles, Tylee, JJ, and Tammy had all gone dark; because Lori and Chad were so powerful, Satan had to surround Lori and Chad with dark spirits to interfere with their mission.

• Just as God told Isaac to sacrifice Abraham in the Old Testament, God told Lori that she was required to sacrifice her children. However, God assured Lori these weren’t really her children and that by killing their bodies, she was saving them. Furthermore, God promised her that when Jesus returned, the children would be resurrected.

• Alex Cox believed absolutely that Lori was exalted and that God spoke to her. He believed her when she told him Tylee and JJ had become dark, and their demons were trying to disrupt Lori and Chad’s essential mission. Lori directed Alex to kill the children. Chad knew about the plan and helped Alex bury the bodies.

• When Lori directed Alex to kill Charles, Tylee, JJ, and Tammy, she believed without reservation that they were not human.

THEREFORE – this is where the lawyer connects the facts to the law – Lori cannot be guilty of killing a human being with malice aforethought because she believed they were not human. In other words, she was so mentally ill she could not form the intent to commit the crime of murder. Bingo. This is the only way in which mental illness becomes a defense in Idaho.
Don’t shoot the messenger. I am sure many of you are dismayed at the idea the Lori might escape culpability because she is insane. What I layout is possible, but not inevitable. It is a narrow needle for the defense to thread.

First, it requires that Lori consent to the defense because even semi-competent defendants are entitled to direct their defense. If Lori takes the position that claiming insanity is denying God (something she told Melanie Gibb she would never do), then she could forbid her lawyers from raising the defense. If Lori consents, the defense will require lining up the evidence and the experts in a way that will convince a jury that at the time of the crimes, she was too mentally ill to form the necessary mental state to kill a human being with malice aforethought.

The defense will also have to get over the hurdle of Clark v. Arizona, Clark v. Arizona, 548 U.S. 735 (2006), which I will discuss in tomorrow’s installment of the newsletter.

When we look at what may be happening in Lori’s defense team, it’s not certain that they will be able to cobble together such a defense. I have tried to give Mark Means the benefit of the doubt, but his actions continue to prove he is utterly incompetent and entirely devoid of judgment. It’s also clear that he remains on the case because Lori wants him there, though no one is clear why. It appears to me that Lori and Means have a hold on one another. It seems to me that the only way Mark Means intends to leave the case is if he is disbarred, and we have yet to see any indication that Jim Archibald and Means are working together.

Tomorrow, look for the next installment, where I will discuss the law in Arizona and how Lori’s mental capacity will affect the charges there. It’s a busy week; you can also expect my regular Friday newsletter discussing the week’s developments and a YouTube Live on Friday at 7 pm PDT for TGIF with Lauren Matthias from Hidden True Crime.

Chad's Adult Children Speak Out 9/4/21

Hello Friends.

Of course, as soon as I published a newsletter speculating that a media organization filed the motion to intervene, Mark Means proved me wrong. And may I just say, Mr. Means – What the Hell? Will he never cease confusing the rules of civil procedure with those of criminal procedure? We know he filed it because we have the response from Lindsey Blake and Rob Wood. First, I’m trying to figure out why Means thinks he needs to intervene in a case where his client is already a codefendant, and second, how he gets there using a civil rule in a criminal case. And I wonder what Jim Archibald thinks of this. By now, Archibald has probably rolled his eyes so many times he’s starting to worry they’ll stay there. As I said before, there are a few narrow circumstances where the court will entertain a motion to intervene, and “I don’t know my butt from the rules of criminal procedure” is not one of them. There have been times when media organizations have been permitted to intervene in cases for the limited purpose of objecting to a court’s ruling regarding press access. So please, Mr. Means, stop humiliating yourself and embarrassing our noble profession with your ignorance and arrogance.

John Prior has asked to continue the hearing on his motion to dismiss because he is still waiting for a copy of the grand jury transcript. It is proper to challenge the basis of the indictment, and that procedural challenge should be made before challenging the substantive facts in the case. It’s the state’s responsibility to ensure the grand jury transcript is done and provided to the defense. This delay appears to be on the prosecution. The hearing on the change of venue is still on for October 5, 2021. Chad’s trial is scheduled to begin on November 8, 2021. However, Chad has filed a waiver of speedy trial, so expect a motion to continue that date. I expect a trial may actually happen in late spring or summer of 2022.

Now on to the biggest news this week. Chad’s five children broke their silence and were interviewed on CBS 48 Hours. Many have asked my impressions and have asked about whether they were coached and whether they were paid. As far as I know, 48 Hours does not pay for interviews. I’m sure that John Prior was involved in their decision to speak up, and I’m also sure there was a list of acceptable questions and those that were off-limits.

The image of Emma Daybell, in boots, tromping across the spots where the children’s bodies were found was chilling, as was her comment about her father’s experience as a gravedigger. Since her father was a professional grave digger, Emma said that he most certainly would not have buried the children in shallow, unprofessional graves. But, oh, Emma, I must disagree.

I harken back to something Melanie Gibb explained in her interview with Nate Eaton of East Idaho News. Melanie said that Lori and Chad were so convinced that the end of the world was coming that they didn’t worry about things. They were convinced that once the earthquakes and tribulation began, no one would notice how quickly they married after Tammy’s death or whether they were together while both were still married. They were sure the public would be far too busy with their own survival to notice anything Chad and Lori were doing. I think that attitude extended to the burying of Tylee and JJ’s bodies. Remember that LDS doctrine teaches that although Jesus was the first person to be resurrected, all those who have lived on Earth will be resurrected in their bodies in the end times. If the children’s bodies were just going to be resurrected right away, there was no need for elaborate burial.

During the interview, Chad’s children insisted on their father’s innocence and claimed Lori and Alex framed him. There are two ways codefendants approach a case; they can either present a united front or point fingers at one another. I have always thought Chad and Lori would remain united until the bitter end, but that may not be so. If I had to guess, Chad’s defense would be that Lori and Alex framed him. Lori’s defense will be that Chad and Alex deceived her by telling her the children were being hidden in a safe place. There is no doubt; both will put the bulk of the blame on Alex, who conveniently isn’t here to defend himself.

I believe the Daybell children are victims. I recognize that people disagree and will object to my saying so, but there is no evidence that they were involved in Chad and Lori’s crimes. In my opinion, these young adults were raised in a religion that values submission and operates within a strict hierarchy of power and control. It is also a faith that values and recognizes the importance of personal revelations. These are young adults who were taught that fathers were the undisputed head of the family, endowed by God. Their father, Chad Daybell, took it one step further and convinced his children and their mother that he alone received messages and guidance from beyond the veil. Chad’s children believe he has extraordinary powers and gifts and that those special powers are to be believed and revered. Many other people we’ve heard from also believe in Chad’s special gifts.

As Dr. John Matthias said in last night’s live on Hidden True Crime, “families are the foundation for mental health.” He points out that optimal families encourage children to express their emotions and opinions. It’s clear the Daybell family was not optimal. Dr. Matthias identified them as “enmeshed.” An enmeshed family shuts out the world and closes ranks, and when they do, they also shut out reality.

Interestingly, in the absence of both parents, it appears that Emma, and to some extent, Garth, have stepped in to take Chad’s place in the family. Considering the LDS church’s doctrine on the women’s place in the family, I find it unusual that Emma is the primary family spokesperson. Still, she looks to her brother, Garth, to backstop what she says.

The interview provided us with information that conflicts with other public statements. If you recall, Chad’s letter about the two parts of his life included a description of Tammy’s death. Chad claimed that he awoke to find Tammy gone, with a sweet smile on her face. Garth’s version of events paints a more frightening scenario. Garth heard a thump, then heard his father calling for him. When he rushed into the room, he found his mother half off the bed and helped his father put her body back on the bed. He described Chad as pacing, pointing at family pictures, and saying she could not be dead. Emma also claims that she was present when her father was arrested. She reports that she talked to him as he was put in the back of a police car. Readers may recall that after the children’s bodies were discovered, Chad drove away from his home and was detained by the side of the road a mile or two away from the house. There are a few photos snapped by someone driving by, and none of them show Emma. That doesn’t mean she wasn’t there, but it does make one wonder. According to Emma, Chad asked her why he was being arrested, and it was she who told him the police had found human remains in his backyard. Compare this claim with the telephone call between Chad and Lori earlier. When Lori called Chad from the jail that morning, it was clear she already knew something was going on – her first question was, “Are you ok?” When Chad tells Lori the police are searching, she asks, “Are they seizing stuff…again?” It’s a blatant attempt by Lori to find out if they’ve found anything. While Emma and Garth’s stories conflict with things we’ve heard previously, they offer us a glimpse not only into the family but also into a possible defense strategy.

Chad’s defense strategy may look something like this: “I was taken in by Lori and her feminine wiles. Lori believed completely everything she had learned about the second coming of Jesus and the upcoming tribulation. She was utterly convinced the world would end in July 2021. I didn’t know what Lori and Alex were planning, and I didn’t know Alex Cox buried the children’s remains in my backyard. I believed Lori when she told me she had to hide the children to keep them safe. I didn’t realize how mentally ill Lori and Alex both were.” Lori’s current mental incompetence reinforces this defense. Lori may never be restored to competence if Chad is fortunate, leaving his as the only story.

On the other hand, Lori will likely claim that she believed absolutely that Chad was a prophet and that she was doing what he told her. She believed Jesus would return in July 2021 and believed Alex and Chad when they told her they had put the children somewhere safe; they convinced her she didn’t want to know where the children were, so she couldn’t accidentally disclose JJ and Tylee’s whereabouts. Lori will claim that her mental illness interfered with her ability to discern Chad’s deception, and because of it, she was utterly taken in by Chad’s claim that he was a prophet.

If you are like me, you are impatient for this case to move along so that we can finally find out the whole story. While the case is pending, it would be inappropriate for me to interview many of those involved, and I am looking forward to the time I can finally dig deep into the story.

Lori Still Incompetent, Chad's Hearing Sealed

Hello from sunny Los Angeles!

Thank you for all the inquiries and people who wondered why there was no newsletter last week. Lots of folks asked if I was okay. Rest assured, all is well in the Hellis household. Those who aren’t watching the lives with Lauren Matthias of Hidden True Crime (and why aren’t you watching?) may not know my husband had a very extensive lower back surgery about seven weeks ago. For those who are asking about him, he’s making slow and steady progress and improving each day. The first couple of weeks were very rough, and he needed a lot of help with everything. My 88-year-old mother lives with us, and her 94-year-old sister has been visiting with her for the past two weeks. Having both of them to manage is challenging, but when I hear them giggling like a couple of teenagers, it’s all worth it. My aunt has returned home now, and I’m excited to get away from the Arizona heat, spending a few days in LA with my adult daughter for her birthday.

So let’s spill some tea on the Daybell case. There have been some confusing filings in the past week or so. The most perplexing is the order to seal Chad’s August 30, 2021 hearing. To begin with, the state (prosecutor) filed a motion asking the court to find there is a conflict of interest with Chad’s lawyer, John Prior, continuing to represent him. When we first saw this document, we speculated that it had something to do with Mark Means (Lori’s lawyer) and his involvement with a YouTube creator to whom he gave confidential information. That is not the basis of this motion - this motion involves John Prior. The prosecutor has asked the judge to seal all the documents and close the hearing, so the only information available must be gleaned from the documents we have. The court’s order to seal the filings and the hearing is enlightening if we read between the lines a little. First, there is a motion asking the court to find there is conflict in Prior continuing to represent Chad. Second, someone has filed a motion to intervene in the case. In civil cases, motions to intervene are typical, but unlike civil cases, motions to intervene in criminal cases are rare. This isn’t just another example of a civil attorney trying to use civil remedies in criminal cases (as Mark Means has frequently done).

This excerpt comes from a case U.S. v. Jeffery Sikes 4:15CR3128:

“The Federal Rules of Criminal Procedure provide no path to intervention in a criminal matter by a third-party. Interventions in criminal matters “have been granted in limited circumstances where ‘a third party’s constitutional or other federal rights are implicated by the resolution of a particular motion, request, or other issue during the course of a criminal case.’” United States v. Collyard, case no. 12cr0058, 2013 WL 1346202 at *2 (D. Minn. April 3, 2013)(quoting United States v. Carmichael, 342 F. Supp. 2d 1070, 1072 (M.D. Ala. 2004)). For instance courts have occasionally allowed the press to intervene in criminal cases to assert the press’ First Amendment rights. See In re Associated Press, 162 F.3d 503, 506- 507 (7th Cir. 1998). Courts have also allowed intervention by third-parties seeking to prevent the wide dissemination of confidential or privileged information. United States v. RMI Co., 599 F.2d 1183 (3d Cir. 1979); United States v. Crawford, 735 F.2d 174 (5th Cir. 1984); 4:15-cr-03128-JMG-CRZ Doc # 48 Filed: 11/02/16 Page 2 of 5 - Page ID # 3 United States v. Martoma, 962 F. Supp. 2d 602, 605-06 (S.D.N.Y. 2013). “A third-party’s reasonable assertion of privilege with respect to documents to be produced in a criminal actions is sufficient grounds on which to grant the third-party’s motion to intervene and to consider the merits of that party’s application.” Martoma, 962 F. Supp. 2d at 605-06. 1 Middleton Electric asserts it has standing to intervene in a criminal case “if [it] has Constitutional standing to move for a protective order or oppose a protective order.” (Filing No. 31 at CM/ECF p. 2). This overstates the law as it currently stands. Middleton is not a third-party seeking to prevent the dissemination of confidential documents. Nor is Middleton Electric seeking to intervene to preserve a right bestowed upon it by the United States Constitution or other federal law.”

So, we can surmise a few things. The issue is whether John Prior has a conflict of interest. What could cause a conflict? Conflict comes in two flavors: one, a conflict between two clients (where the interests of two clients, past or present, conflict with each other). This happens when a lawyer has perhaps previously represented a client and now represents someone whose interests are opposite to the prior client. For example, let’s say a lawyer represents Jack in a business deal to purchase a piece of land to build a factory. The lawyer knows a lot about Jack’s financial situation and his business. Later, Jack’s wife, Jill, hires the lawyer in her divorce from Jack. The lawyer will have inside information about Jack’s business that the wife may not know, and the lawyer has a duty to keep that information confidential. He also has an obligation to use act in his current client, Jill’s, best interests. See the dilemma? The second type of conflict is between the interests of the client and the interest of the lawyer. This comes about when the attorney and the client have some business dealing that has gone sour, bringing their interests into conflict. What could that be? Perhaps the transaction that deeded Chad’s home to Prior? Someone may be contesting that transfer. If so, Prior’s financial interests would conflict with his client’s.

The court’s order says that the motion to intervene will be considered at the same time in the closed hearing. What motion to intervene? We haven’t seen that either. As the excerpt above suggests, motions to intervene are only permissible in very narrow circumstances. One of those circumstances is when the press objects to a motion to seal filings or close hearings. It seems likely that one of the press outlets has opposed the court closing the hearing.

If the judge seals documents, can they ever be unsealed? The answer is yes. Generally, once the trial is over, the documents can be unsealed. In some limited instances, documents are permanently sealed. Those documents usually have to do with juveniles and are things like adoption records. If the court does not automatically unseal documents, the press can request the unsealing.

Chad’s hearing was ordered to be conducted under seal, so we have no idea what happened in it today. Lori’s hearing occurred at 3 pm today, and she was not present. Interestingly, John Prior was included in that hearing but then dropped off the Zoom call about halfway through. The judge reported he had received two letters from the treatment agency that indicated that Lori needs more time to become “restored.” He said the letters were insufficient and that he needs a progress report. So the judge temporarily continued Lori’s commitment until September 8, 2021, at 1:30, when they hope to have the proper progress report. The court then signed off after the judge said he would continue with the attorneys offline. I’m assuming that’s for Chad’s hearing.

Chad also waived his speedy trial rights last week. This was no surprise. Defendants in Idaho must be tried within six months of their arraignment date if they are in custody. Judge Boyce set Chad’s hearing to begin in late November – the very outer edge of that six-month window. With the death penalty on the table, asking for a continuance made sense. Death penalty cases are extremely complex. Right now, he has one retained lawyer. Generally, a death penalty team comprises two lawyers, one or more investigators, and a mitigation specialist at a minimum. That team will need six months to a year to prepare. I would not expect his trial to happen until summer 2022 at the earliest. Absolutely, the wheels of justice turn slowly.

I expect we will see a motion to postpone the November trial, but I doubt that motion will happen before the October 5, 2021 hearing on the motion to change venue.

Rest assured, I’ll be on the case and bringing you updates and analysis when things happen. Cheers.

New Documents and New Lawyers! 8/13/21

Hello Friends!

So much reading of tea leaves is required this week!

Let's start with the simplest document first. Judge Boyce issued an order in both cases. The order says that although the cases are currently joined for trial, they are separate case numbers for administrative purposes. Why would the court do this? They did it so every document does not have to be filed in both cases. There was much confusion when the death penalty notice for Chad was filed in Lori's case. The judge is giving the lawyers and the clerk permission to file documents in one case and not the other. The document was not, as some people reported, a severance of the case. Note that the last line of the order says, "The defendants are, however, joined for purposes of trial pursuant to I.C.R."

Now the more complicated documents. Let's turn to the discovery and contempt motions. And let me just get this off my chest first: "Really, Mark Means? Really? Could you please just not?"

Whew. Okay. I'm better now. First, Means asks the court to compel discovery AGAIN. Once again, the prosecutor answers by saying, we already gave it to you, and if you want to, you are welcome to make an appointment to come here and see/copy/photograph anything you want. Then in a new discovery request, Mark Means asks for more of the same. He asks for the medical examiner's report and all lab testing etc., done on Tammy Daybell, on the "exhumed bodies." I'm not sure if he is referring to Tammy Daybell or if he considers the children's bodies "exhumed." Now Means is correct, that he should have all the medical examiner and autopsy results. He should also have access to the stored DNA to do independent testing. If there are insufficient samples to duplicate testing, both parties' experts should be present during the testing of the consumable sample. However, given the recent leaks of discovery information, including information from sealed documents, that occurred from his office, I can understand the prosecution's hesitancy to release such sensitive material. Means then asks for a list of all witnesses that the state has taken "formal or informal" statements from. Generally, the state has law enforcement interview witnesses and file formal police reports that document the interview. If a prosecutor informally interviews a witness, say to clarify something, the prosecutor may handwrite notes, make notes about trial strategy, or note how the law and the facts line up. Generally, those notes are privileged and work product of the attorney. Means then asks for every statement or conversation by a long list of potential witnesses. And a very long list of what data he's asking for.

Here is the bottom line. Prosecutors and their investigators (law enforcement) can and do talk to witnesses in criminal cases. However, they do not always record or otherwise document those encounters. The defense is free to speak to witnesses or have their investigator talk to witnesses. The defense may or may not document those encounters. The defense has a responsibility to investigate their case. The prosecution has no duty to investigate to case for the defense. IF an encounter is documented, it must be shared with the other side.

Means outlines specific discovery that he needs or was missing.

Attorneys and witnesses bad mouth the other side all the time. It's just part of what happens when the stakes are high, and the subject is emotional. I'm pretty sure Mark Means had choice things to say about prosecutors too. It's not slander if it's true, Mark. If you want people to stop saying negative things about you, stop making yourself such an easy target.

He asks for information regarding a witness statement from someone called Reegen Price. She is a neighbor who heard a gunshot on the day of the "raccoon" shooting. Here is another example of Means expecting the DA to do his work. "Please identify any and all records identify (sic) her physical location at the time of the shooting." But, again, this is a job for a defense investigator, not a discovery demand.

And now for the elephant in the room! Jim Archibald, an experienced public defender, was appointed by the court to represent Lori. The order appointing him, dated August 6, 2021, is enlightening. The judge lays out the timeline and his reasoning. First, the judge points out that "a finding of indigency coupled with potential penalties of the death sentence on charges against her in the indictment require this Court to appoint a qualified trial attorney." (Italics theirs). The judge goes on, "Certainly, the Sixth Amendment also 'grants to the accused personally the right to make his defense,' meaning every defendant enjoys the right to waive death penalty qualified counsel and hire their own private representation. However, because the matter is stayed pursuant to a finding that the Defendant is incompetent to stand trial and is therefore deemed unable to understand the nature of the proceedings against her and meaningfully assist in her defense, the Court is unable to conduct the requisite inquiry to determine whether the Defendant may elect to "knowingly, voluntarily and intelligently" waive her right to death penalty qualified counsel at public expense."

Now let's put this together with some other things that have been filed in the case. Namely, on July 27, 2021, a document titled "Order Sealing State's Motion and Memorandum Objecting to the Entry of Appearance of Counsel and for a Finding of Conflict" Of course, the sealed document is unavailable. Still, we can glean some information from the caption. The state made a motion objecting to the entry of an appearance of counsel, presumably Mark Means and asked the court to make a finding that there was a conflict of interest. Now, a conflict of interest that would disqualify an attorney has nothing to do with their qualifications. It has to do with their contact with people, prior representation, or other ethical obligations. Whatever the state is objecting to, it isn't that Means isn't qualified. The Idaho State Bar Association is the organization that monitors lawyers and prosecutes ethics violations. They do not release any information about ongoing investigations. If Means is under investigation, the public will only find out after the fact, and then only if the adjudication comes out against him.

So it appears that Means objected to having Archibald appointed. It also appears from the judge's order that someone was contending that Lori has the right to waive her right to a court-appointed death penalty qualified lawyer. The judge agreed but said Means couldn't have it both ways. Either Lori was incompetent, or she wasn't. Since she is, she is presumed to be incapable of making a knowing, voluntary and intelligent decision about waiving counsel. Now, why Lori is clinging doggedly to Mark Means is beyond me. While I often disagree with Scott Reisch of Crime Talk, I do agree with him when he says, "Mark Means has got to go." I've tried to give Means the professional benefit of the doubt, but he's clearly out of his depth. More importantly, though, he's short on the necessary judgment to represent his client properly. When your ego gets in the way of acting in your client's best interest, it's time for a gut check. I was lucky enough to work with remarkable colleagues in an environment where we all expected one another to provide those reality reminders. Solo practice has many great advantages. It also has the disadvantage of allowing a lawyer to become isolated and insulated from what is really going on. Lori Vallow needs an experienced lawyer who meets the state's qualifications to represent clients in death penalty cases. She will not have that in Mark Means.

There have been persistent rumors that Lori is back in the Madison County Jail. Both Mark Means and Jim Archibald have been seen going in and out of the jail frequently. It would not surprise me if those rumors were true. If, as we suspect, the primary method of Lori's treatment is with psychotropic drugs, those drugs can be administered anywhere, once prescribed. While the state hospital is accustomed to securing criminal patients while they receive treatment, they aren't accustomed to protecting a patient from outside forces. Let's remember, Lori is easily the most hated woman in Idaho.

Happy Friday, friends. Have a great weekend, and don’t forget to catch Lauren Matthias and me tonight on Hidden True Crime on YouTube at 7 pm PDT.

Death Penalty Notice

Hello Friends!

Well, it happened. Fremont County prosecutors have filed their Notice of Intent to Seek the Death Penalty against Chad Daybell. The statement released by the prosecutors is as interesting as the document itself. So let’s break it down.

The notice states that they will seek the death penalty for any or all convictions of First Degree Murder or Conspiracy to Commit First Degree Murder. In all states, there must be aggravating factors to justify seeking the death penalty. In this case, the reason for the charging decisions in the initial indictment becomes clear. Filing the charges as Conspiracy to Commit First Degree Murder and Grand Theft by Deception means that they can now allege that the murders were “for remuneration” and therefore eligible for the death penalty. They also allege that each of the murders was committed in a manner that was especially heinous, atrocious, or cruel or under circumstances that manifest exceptional depravity and utter disregard for human life. These are also aggravating factors that justify the death penalty.

I thought the statement they released was interesting; in it, they said they “conferred with those immediate family members of JJ Vallow, Tylee Ryan, and Tammy Daybell who have indicated a willingness to speak with us and allowed them to provide their input if they wished to do so.” I interpret that to mean at least some of the family declined to speak with the prosecutors. We know that Kay and Larry have had a lot of contact with prosecutors and that Colby Ryan has also spoken with them. Based on past interviews, I suspect Tammy’s sister and brother-in-law would talk to them. What we don’t know is whether any of Chad and Tammy’s children participated. My suspicion is they did not.

No notice was filed as to Lori Vallow Daybell because her case is currently on hold while she receives treatment for her mental health condition.

So, Madame Lori, what happens next? Next will come a flurry of activity as some important issues are sorted out. Let’s study the tea leaves.

1. Will John Prior remain on the case? Chad has not been declared indigent at this point, but a request may be coming. In Idaho, a person can hire any attorney to represent them, and it’s their responsibility to determine if the lawyer they hire is qualified for their case. If Daybell is found to be indigent and the state appoints an attorney, the lawyer must meet the state’s necessary qualifications for death penalty attorneys. Chad signed his interest in his home to Prior. The deed reflects John Prior and Tammy Daybell as owners. It’s unclear why the title remains that way. In Idaho, which is a community property state, the entire property would generally pass directly to the surviving spouse. Perhaps it’s because there may be a challenge from the life insurance company if Chad is found to be complicit in Tammy’s death, and they want to protect the portion of the property that could go to her children. All of this is speculation. It also means that only half of the equity was pledged to Prior. That’s not much money for a death penalty case, so it’s possible that Prior and Chad could say that money has already been used up, and Chad is now indigent. If that happens, Prior could not remain on as lead counsel, only as a second chair.

1. Will the trial scheduled for November really happen? I doubt it very much. John Prior has already filed for a change of venue. If, as expected, the motion is granted, it will require that the receiving jurisdiction schedule the trial on their docket. Even if the trial is not moved, preparing a death penalty case in four months is virtually impossible.

1. Will Chad take a plea? I have said all along that I think Chad is a coward who had other people do his dirty work. I think there’s a good chance he might trade the uncertainty of a death sentence for life in prison without the possibility of parole – I’d say at least 50-50. A sentence of death leaves a lot of room for uncertainty and challenge. Twenty-four states presently have the death penalty, including both Idaho and Arizona. In some states, the governors have imposed a moratorium on executions. There has been ongoing controversy about the death penalty because of the manner in which it is carried out. Many states execute by lethal injection. The difficulty comes because those with medical licenses generally decline to assist in executions. Additionally, many companies that manufacture the necessary drugs refuse to sell to states if they intend to use them for executions. It results in nonmedical personnel ordering and administering the drugs when they can be found. There have been mistakes both in ordering the wrong substances and in improperly administering them. There are legal challenges to lethal injection in many states, including Arizona. Chad’s challenges to the death penalty could go on for years.

1. Why didn’t the notice include Lori? As you may remember, the judge entered a stay in Lori’s case while she receives mental health services to restore her to competency. When the stay was entered, Lori had not even had an initial appearance on the indictment. I think there would be a good argument that she doesn’t have legal notice of the charges against her yet. From a practical standpoint, I think the state will likely file the same notice against her once she is competent, for the same reason they filed against Chad, to keep true life as an option. I also think that if Chad pleads, Lori will too. If the state files for the death penalty, Mark Means should be off the case. Lori was declared indigent to get the state to pay for her evaluations and mental health treatment. I suppose Means could claim he’s retained and continuing for free, but that would mean there would be no money for investigation and experts.

Lauren Matthias of Hidden True Crime and I will be LIVE tomorrow at 7 pm PDT to talk about this week’s developments. Don’t miss it!

What does this document mean?

Hello Friends. So many people have asked what the heck this document is, I had to answer.

The actual document is sealed, but we can learn something from the order to seal it. Let’s dissect it.

First, it was filed by Lindsey Blake, Fremont County Prosecutor, and Rob Wood, Special Prosecutor, so we know it’s from the state.

Second, let’s look at the caption. The motion is asking to seal a document that was doing more than one thing. I think that’s what’s making it confusing. Courts generally like one issue in one document. That makes keeping the database straight easier. But, this one does include more than one action. This motion asks to seal the state’s prior motion. The earlier motion did two things:

1. It objected to the defense entering a notice of appearance. That is a notice that officially designates which attorney represents the defendant so that future correspondence can be sent to that attorney and so the attorney will be served with any future filings. The state appears to have objected to one or both of the attorneys. AND

1. It asked the court for a finding of conflict. The state is asking the judge to find that the defense attorney has a conflict and therefore can’t continue as the defendant’s counsel. We don’t know what the state claims created the conflict or which attorney is being challenged. We can speculate that it may have something to do with a YouTube creator receiving information from Mark Means. It could also have a different origin; we don’t know.

For those of you that have been asking about the Notice of Intent to Seek the Death Penalty, the Idaho Rules of Civil Procedure 2.2 controls what happens when the filing deadline falls on a weekend. “if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” Chad was arraigned on June 9, 2021. That makes the 60-day deadline August 8, 2021, which falls on a Sunday. That means the deadline is Monday, August 9, 2021. These notices are more than a single sentence telling the defendant they intend to seek the death penalty. The notice must contain their rationale and the proof, including aggravating factors, that support seeking the death penalty. I’m sure the state will wait until the last minute to file, especially since it may make new information public.

As always, thanks for reading.

Madam Lori answers all

Hello Friends! Questions, questions – y'all have questions! So Madame Lori is about to flip a few Tarot cards and read a few tea leaves. Be warned; this is a long newsletter!

1. Why did the prosecutor dismiss the previous destruction of evidence cases this morning? When Lori and Chad were charged with these crimes, the children's bodies had just been found. The prosecutor filed these charges because they were the best charges that he could reasonably bring at the time. The prosecutor has a legal and ethical obligation only to bring charges for crimes they can prove at the time of the charge, even if he is sure that further investigation will turn up more serious charges. These charges, just like the earlier charges against Lori of child abandonment in Madison County, were placeholders that kept both Chad and Lori in jail while the prosecutor built his case. I think I said in an earlier newsletter that I thought Wood would either consolidate the cases or dismiss the earlier charges. Could Wood prove the destruction of the evidence charges? Sure. But why take the focus off the more serious charges, or give the jury something less to resort to if they can't reach an agreement? Incidentally, the charges were dismissed "without prejudice," which means they could be refiled at any time within the statute of limitations.

1. Why was there a Motion for Pro Hac Vice for Chad? Why not for Lori? Remember when Rob Wood asked the court to allow Rachel Smith on the destruction of evidence case? The judge admitted her on that case. The new motion was to permit her to work on the murder charges. That's particularly important since Wood asked to dismiss that earlier case. Wood did not file the same motion in Lori's case because of the stay.

1. Why would Mark Means give discovery information to a YouTuber who has made it clear that she believes his client is guilty? Good question. I think Mark Means is way over his head. I think he's over his head when it comes to his knowledge of criminal law, but I also think he's way over his head in terms of resources. If you have someone offer to give you free help in that situation, you jump at it. If they ask for favors in return, you give them.

1. What is the consequence to Mark Means if it's proven that he shared confidential information with a YouTube creator? It is possible Means could be suspended from practice or even disbarred. There is nothing in the ethical rules that would permit Means to share information with someone his office did not employ. Lawyers are required to supervise their employees. If an employee violates an ethical rule, it's the lawyer who receives the consequence. Here are the applicable ethics rules in Idaho.

*RULE 1.6: CONFIDENTIALITY OF INFORMATION (a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a crime, including disclosure of the intention to commit a crime; (2) to prevent reasonably certain death or substantial bodily harm; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime in furtherance of which the client has used the lawyer's services; (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of a client; (6) to comply with other law or a court order; or (7) to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

RULE 3.6: TRIAL PUBLICITY (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

Commentary to Rule 3.6: There are, on the other hand, certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate to: (1) The character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness; (2) In a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement; (3) The performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented; (4) Any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; (5) Information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial; or (6) The fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

1. What might the consequences be to the case of the association between Means and the YouTube creator? There is an excellent reason for the confidentiality and publicity rules. That reason is that the defendant is entitled to a fair and unbiased trial before a jury of their peers. Widespread publicity can cause potential jurors to form preconceived opinions about the case and make it more difficult to find an impartial jury. The pretrial publicity CANNOT force a mistrial. The judge can declare a mistrial only if there is some misconduct after the jury is seated. Likewise, an appeal for ineffective assistance of counsel is nearly impossible. The standard for overturning a conviction because of ineffective counsel is very hard to meet. The defendant has to prove that the outcome of the case would have been different but for their lawyer's action or inaction. This case has some similarities and some differences to the Jodi Arias case. In the Arias case, there was a gag order. There is no gag order in this case. However, a defense attorney shouldn't need a gag order to know it's wrong to share confidential information with a YouTube creator. In the Arias case, the prosecutor, Juan Martinez, agreed to surrender his law license rather than have a protracted fight over his disbarment. He was accused of several things. He was accused of having leaked the identity of a juror to a blogger with whom he had a sexual relationship and then lying to investigators about it. He was also accused of sexually harassing female employees.

1. Is the Sharie Dowdle recording admissible? The recording of Sharie Dowdle may not be admissible as evidence. When Sharie recorded herself talking to Melanie Gibb, Sharie was in Massachusetts. In that state, it's illegal to record someone unless they are told they are being recorded. It's true; releasing the recording on social media may get it to people who might be on the jury. If the recording is ruled inadmissible, the jury would never hear it. BUT, it's hard to unring that bell for a jury pool that may have already heard it on social media.

1. How would this case have been prosecuted if the children's bodies had not been found? Again, good question! It's a long-held idea that you can't prosecute a murder without a body, but there are exceptions. It's more difficult, but it can be done. For instance, I know of a case where a husband killed his wife, then transported her body in a horse trailer to the river and dumped her body. A couple of weeks later, fishermen reported seeing a body among some tree snags along the riverbank. A bad storm moved in later that day, accompanied by drenching rain that caused the river to run high and fast. Search crews were delayed by the weather and could not locate the body when they could get on the river. The body was never found, and it's assumed it washed out to sea. Game over, right? No, not so fast. The forensic folks could find enough blood in the horse trailer to successfully argue that that amount of blood loss was inconsistent with life, and so the victim must be dead. The husband was convicted and sentenced to life without parole.

1. Are the rumors of Meth trafficking true? This rumor has swirled about on and off for the better part of two years. It recently surfaced again on social media. No, to the best of my knowledge, it's not true. There is no evidence that any of the people involved were using or dealing illegal substances. This rumor came about when someone hacked Kay Woodcock and sent out an email from her address alleging that Lori and Alex were trafficking drugs.

1. Why is so much evidence being released before trial? To our friends in other countries, our way of doing things might seem strange. Our constitution is rooted in the belief that government and its agencies (such as law enforcement) should not operate in secret, that government should operate in broad daylight and full sight of the public. While there are exceptions to this rule, such as grand jury proceedings and activities that affect national security, as a rule, our system favors disclosure. As U.S. Supreme Court Justice Brandeis once said, "sunlight is the best disinfectant." Those ideas are codified in the Freedom of Information Act (FOIA) at the federal level. Each state also has its version of the law. Many states, Idaho included exempt law enforcement investigations. The records that were obtained from Chandler police were requested under the Arizona FOIA. Under AZ law, unless there is a specific law that makes a record confidential or an argument that it's in the best interest of the state that it is not released, it should be released. There is no exemption for law enforcement investigations, although some case law suggests that keeping investigatory records confidential is in the state's best interest. Why all the redactions? I suspect that most of the redactions were made based on statutes that require some identifying information listed in police reports to be kept confidential, and some may be in the state's best interest so that the case isn't compromised.

1. What is the burden of proof in a motion for change of venue? The burden of proof is by a preponderance of the evidence (often described as 51%. Also, the decision to permit a change of venue is discretionary with the court, meaning it's the trial court's decision. The appeals court will only overturn an order to change venue only if it can be shown that the trial level judge abused her discretion.

When a trial judge finds a reasonable likelihood that qualitative or quantitative elements of pretrial publicity have affected prospective jurors' impartiality, then the balance falls in favor of assuring a fair trial. Hall, 111 Idaho 830, 727 P.2d 1258. It is important that the trial courts take "strong measures to ensure that the balance is never weighed against the accused." Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507. 1522 (1966). There are a number of factors to consider in determining whether a reasonable likelihood that pretrial publicity adversely affected juror impartiality existed, including: 1) the existence of affidavits indicating prejudice or an absence of prejudice in the community where the trial took place, 2) the testimony of the jurors at jury selection regarding whether they had formed an opinion based upon pretrial publicity, 3) whether the defendant challenged for cause any of the jurors finally selected, 4) the amount of time elapsed between the pretrial publicity and the trial, and 5) the nature and content of the pretrial publicity. State v. Needs, 99 Idaho 883, 890, 591 P.2d 130, 137 (1979). (State v. Funkhouser, unpublished opinion 800, 2013).

1. When does a duty arise for an ordinary citizen to report a crime? Interesting question. In the U.S., there is no affirmative obligation for a citizen to report a crime. There is an obligation for a citizen to abstain from criminal behavior. As long as the witness does nothing to further or cover up a crime, there is no criminal liability. There are some specialized obligations that arise because of a person's status or occupation. For example, some laws require that doctors, teachers, and even lawyers report the possible abuse of children and the elderly. However, what is legally required is a very different question from what is ethical.

1. What's an accessory after the fact? An accessory after the fact is the same as someone who aids and abets a crime. The term is somewhat outdated, and generally, criminal statutes talk about someone who aids and abets. However, aid and abet has a somewhat broader definition since it can occur both before and after a crime.

1. Why is there still such trouble with discovery? What are the prosecution's obligations, and when do they kick in? In general, discovery is a much more straightforward and uncontested practice in criminal cases than in civil matters. It seems that Mark Means has carried his attitude toward discovery from civil work into this criminal case. Usually, a simple telephone call will suffice to get discovery materials from the prosecution. The prosecution has an obligation to provide discovery as soon as possible after the case is filed and has an ongoing obligation to send discovery to the defense as it comes in.

1. Will John Prior file to sever the defendant's cases? Do both parties need to be competent before the judge can sever the cases? I think it's likely that Prior will ask the court to sever the cases. For all practical purposes, they are already severed because Chad is set for trial, and Lori is not. That will change if Lori is restored to competence before Chad's trial or if the trials are pushed out because the death penalty notice is filed. I believe the judge can sever the trials while Lori is still considered incompetent.

1. Will the state ask for the death penalty, and why? Yes, I have said I believe the prosecution will ask for the death penalty. The crimes were particularly heinous – one victim was seven years old; the other was 16, and her body was dismembered and burned. The motive was, at least in part, money. The deadline is August 8, 2021. The required notice is not just a single sentence saying they intend to seek the death penalty. It's a complex document that requires the prosecution to outline the factors that support their intention and how they intend to prove each. It makes sense that Wood might wait until the last minute to drop the notice. I am sure he has already notified the defense counsel of his intention. The notice may contain information that has not previously been released, so it's no surprise that Wood will wait as long as possible to release it. One of the reasons I believe they will ask for the death penalty has to do with the way the Idaho law is written. In Idaho, the only way the prosecution can get a sentence of true life – life without the possibility of parole – is to ask for the death penalty. Then the prosecutor can agree to a plea bargain for true life, or if there is a trial, and the penalty phase jury finds there are mitigating circumstances that make the death penalty inappropriate, they can recommend true life. If the state does not seek the death penalty, the sentence for first-degree murder is life in prison with a minimum of ten years before the inmate can ask for parole. It's hard to imagine Rob Wood (or anyone else for that matter) would see that as an adequate sentence.

1. Please explain concurrent vs. consecutive sentencing. Okay, this one is complicated. Let's break this down a bit further. States have either determinate or indeterminate sentencing schemes. A determinate sentencing rubric means that there are specific sentences for crimes, and the judge can't deviate from those sentences. A judge has no discretion, especially over the more serious or violent crimes. Determinate sentences also usually don't permit inmates to get time off their sentence for good behavior or to participate in educational or treatment programs or any sort of activity that would take time off their sentence. Oregon's sentencing structure under their Ballot Measure 11 is a good example. Indeterminate sentencing, judges have no discretion to reduce the sentence and must impose the mandatory time. The determinate sentencing model became popular in the 1990s during a period where victim's rights groups lobbied for tougher sentences.

Next, there are states that still have indeterminate sentencing. In those states, a sentence might be given as a range of years in prison and years before the inmate can ask for parole. Let's say Robbery carries a sentence of 5-20 years with a minimum of three years before parole can be requested. The judge would have the discretion to sentence the 17-year-old (charged as an adult) who has never been in trouble before and drove the getaway car, to five years with parole after three, while the ringleader who held the gun on the clerk and who has a long criminal history might get 15 years with a minimum of ten to serve before he can ask for parole.

Idaho has a hybrid sentencing scheme that is primarily indeterminate. The sentences for most crimes are indeterminate, but a few, more serious crimes require a fixed minimum of years. In Idaho, judges have a lot of discretion.

Arizona, on the other hand, has determinate sentencing. That means that the legislature sets the sentence for a particular crime, and everyone is sentenced the same. In our robbery scenario, both defendants would get exactly the same determinate sentence. Probably something around ten years. The judge does not have any discretion. This means the only way to change the potential sentence is to change the charge. In states with determinate sentencing, the discretion really passes out of the judge's hands and into the prosecutor's. It's the prosecutor who can negotiate with the defense to make the sentence fit the circumstances. In our robbery example, the DA would likely reduce the charge for the driver to a lesser crime in order to achieve the intended sentence. Determinate sentencing also means the outcomes for our two defendants could be very different. Say our driver decides to take his case to trial and is convicted of Robbery. The judge must impose the mandatory sentence. But say our trigger man's lawyer negotiates her client out of the offenses that carry the mandatory sentence and into an offense where probation is an option. It is possible for the driver to be sentenced to the 10-year mandatory and the trigger man to get probation.

Okay, Madame Lori, but what does this have to do with consecutive vs. concurrent sentences? Judges in both sentencing schemes have the discretion to make sentences concurrent (running at the same time) or consecutive (one after another). If a judge in an indeterminate sentencing state feels that the defendant who has been convicted of multiple offenses is getting off too easy, the judge can make the sentences consecutive. If, on the other hand, a judge in a state with determinate sentencing feels the defendant deserves a break, even though the judge can't reduce the sentence, she can run them concurrently.

I hope that explanation makes sense. Criminal sentencing is one of the most complicated and nuanced parts of criminal law. Lawyers often take weeklong seminars to learn and apply the rules.

Thank you, Mary Jo, Pat, Denise, Joy, Angela, Bev, and Roberta and Linda, for the questions.

Don't forget to catch Lauren and me tomorrow night for another TGIF chat at 7 PM PDT.

Recordings and documents and motions, oh my!

July 28, 2021

Good Day, my friends.

There is a lot to talk about, and this newsletter might be longer than usual.

Before I dive in, though, I want to take a minute to address some true-crime community drama because you all have been asking. It seems that Lori's attorney, Mark Means, has been exchanging a lot of information with YouTube creator Awen Rees. I'm not going to respond to questions about my personal experience with Awen; I choose to focus on the case and the victims, but many of you have asked about the impact on the case. As I understand it, their relationship has been going on for some time; I don't know what information they have exchanged. Still, I want to put your mind at ease; it's doubtful that these circumstances will cause a problem in prosecuting the case. However, the exchange of information may cause problems for Means and Rees. Many people seem to think this might be grounds for a mistrial. As I've explained before, a mistrial only occurs if misconduct occurs after a jury is empaneled. The situation is not grounds for an ineffective assistance of counsel appeal either. Ineffective assistance of counsel only gets a defendant an appeal if they can prove that the case's outcome would have been different but for the defense attorney's actions. That's a strict standard to meet.

Now that we've dealt with that let's talk about what happened this week in the case. There's the motions filed by John Prior, the recorded telephone call between Melanie Gibb and Sharie Dowdle, the looming death penalty deadline, and the massive 2500-page document dump.

Prosecutor Rob Wood has until August 8, 2021, to file his intent to seek the death penalty in Chad's case. As I've said before, I will be surprised if he does not file the notice because of the way the Idaho sentencing statute works. A defendant can only be sentenced to true life – life in prison without the possibility of parole – if the prosecutor sought the death penalty. They only get to true life if the prosecutor deals on the death penalty or a jury determines there were mitigating circumstances and decline to impose it. The statute requires that the prosecutor file the notice within 60 days of the defendant's arraignment. The law is silent on whether the notice can be filed before arraignment, but constitutionally, I believe a prior filing could be challenged. Defendants are entitled to due process. One layer of due process is the necessity to assure the defendant knows and understands the charges against them. While a death penalty notice might survive a challenge if given after the first appearance, I don't believe it is permissible to notice a defendant of the intent to seek the death penalty before there is even an initial hearing. As you might recall, Lori's initial hearing was postponed because of her mental condition. The death penalty notice is more than just a single sentence. The notice contains a list of the aggravating factors that the prosecution will prove. It's a document that requires research and thought. It will also contain information that the public may not have seen before. Every time something is released to the public, it makes seating an unbiased jury more difficult. These are the reasons why Wood will probably wait until the last minute to file the notice.

Chad's attorney, John Prior, filed two motions this week, neither especially surprising. First, he filed a new motion to change the venue of the murder case. The motion wasn't unexpected, and I think the motion will be granted. Second, Prior filed a motion for a transcript of the grand jury proceedings. Grand jury proceedings are secret, but both the defense and the prosecution are entitled to the recordings and transcripts. It, too, is a motion that the judge should grant.

Recently, a lot of information has come out, and some of it is pretty shocking. First, there is the recorded phone call between Sharie Dowdle and Melanie Gibb. Sharie was a fan of Melanie Gibb's book, Feel the Fire, and had corresponded with her on Facebook. They have never met, and Sharie says they had one phone conversation that Melanie initiated. Sharie recorded that fifty-minute conversation. If you watch Lauren Matthias's interview with Sharie, the picture of how the recording happened and what she did afterward becomes clear. Sharie admits to being somewhat gullible, and she was fearful of what she heard. She gave a copy of the entire recording to the police. A copy of the complete recording was then included in the discovery materials sent to the attorneys. Sharie later sent a twenty-minute portion of the call to Annie Cushing. When Annie told Sharie she could be in trouble for recording the call; she deleted everything she had involving the call. Sharie later learned that YouTube creator, Awen Rees, had a copy of the full fifty-minute recording. Sharie says Awen could only have obtained the recording from police or from one of the attorneys who got it in discovery. The whole recording was released in one of the Facebook groups. Jess Nelson, Awen Rees's co-host, confirmed that Rees obtained the recording from Mark Means. Rees now admits that she was communicating with Means.

The call is chilling for many reasons. First, it points out how information can leak. Second, the content itself is disturbing. Melanie clearly says that Lori and Alex planned Charles's death and intended to make it look like self-defense. Melanie also says Lori told her both children had "gone dark" and then says, "you know what happens to people who go dark." She later comments that she doesn't believe the children are alive. The recording was made early in 2020 when the children were still missing. Melanie's blasé tone when discussing the events is troubling. You can listen to Lauren's interview with Sharie at https://www.youtube.com/watch?v=An85UC7JUIM; the recording of the call is available here ​https://youtu.be/Ju4GFKR8Vns.

Then, there is the HUGE dump of 2500 documents that Fox 10's Justin Lum obtained by requesting them under the Freedom of Information Act (FOIA). Many have asked if we will see a similar release from Idaho. I'm sure that similar FOIA requests have been made to them. There are exceptions to what must be released under FOIA. Federal agencies must disclose any information requested under the FOIA unless it falls under one of nine exemptions that protect interests such as personal privacy, national security, and law enforcement. States have similar laws. Idaho Statute 74-105 says, "Investigatory records of a law enforcement agency, as defined in section 74-101(7), Idaho Code, under the conditions set forth in section 74-124, Idaho Code" are exempt from release. It may be up to a court to determine whether Idaho's information falls into one of those exceptions. It seems to me Idaho might be more likely to fight the release than Arizona was. At that, Arizona did redact a great deal of information in the documents.

The documents that were released contained many redactions, and there were many duplicates. That's typical of discovery. Every agency involved turns over their part of a case. If there is communication between the agencies, the discovery may contain the same communication repeatedly received from everyone to who it was distributed. There were some very interesting highlights, particularly in piecing together what really happened to Charles Vallow. It appears that Alex Cox waited for 43 minutes for Charles to die before calling 911. While he waited, he called Lori. When Lori left the house, she took Charles's rental car and his phone. Lori had plenty of time to go through Charles's phone and get her story straight with Tylee before returning.

The police reports that document the interviews with Lori, Alex, and Tylee are also interesting. Tylee's statement seems very coached. I think Lori spent the time she was taking JJ to school and buying flip-flops to nail down Tylee's statement. She didn't have as much time to practice with Alex, though, and their statements have some significant factual differences. We also learned a lot about the internal dysfunction in the Cox family from a letter written by Nicole Cox, Adam Cox's wife.

We saw the texts and emails to law enforcement from Kay Woodcock. What comes through is the anguish the Woodcocks were feeling over not knowing where JJ was.

Please keep all the victims in your thoughts and prayers.