After 2 major developments in case against Lori Vallow Daybell, what's next?

KUTV CBS News 2, Utah/May 27, 2021

By Kelly Vaughen

This week brought two big developments in the case against Lori Vallow Daybell: a psychologist found her unfit for trial, and Arizona police recommended another murder charge against her in the death of her former husband Charles Vallow.

Charles Vallow was Lori’s fourth husband, and he was shot and killed by Lori’s brother in 2019. The Chandler Police Department recommended the charge of conspiracy to commit first-degree murder. The Maricopa County Attorney's Office is now reviewing the case, and did not have a timeframe as of Thursday for when they will make the decision on official charges.

Vallow Daybell was also deemed incompetent to stand trial for charges she faces relating to the concealment of the evidence in the deaths of her two children. Just days ago, she was also charged with murder in their deaths.

A licensed clinical psychologist assessed Vallow Daybell in March and found her not competent to proceed with the case. In a rare move, prosecutors contested that finding.

"I have not, in a mere 49 years of practicing law as a prosecutor and defense lawyer, seen a prosecutor object to this kind of finding and this kind of report,” said Dave Leroy, a former Idaho attorney general, former Idaho lieutenant governor, and current private lawyer.

Leroy said from the way the judge's order is written, it appears Vallow Daybell’s defense lawyers called her mental health into question.

During the psychological assessment, they would have looked to see if Vallow Daybell was aware of her surroundings, could examine the facts of the case, and help her lawyer prepare for trial.

"Someplace in that mental process, according to the psychologist, Ms. Vallow has broken down in terms of assisting her lawyer in preparing for trial,” said Leroy.

Normally when this happens, there is a 90-day "time out" to rehabilitate the defendant and get them ready for trial. But in this case, the state contested the findings, and now there will be another hearing for the judge to decide if Vallow Daybell can stand trial.

Leroy said one of the reasons it’s not typical to contest the 90-day rehabilitation period is because setting the new hearing to contest the findings can take just as long. At that hearing, the state will be able to cross-examine the psychologist and bring in other evidence, which could mean another psychologist's report.

"Remember, that state expert will not have direct access to Lori Vallow. And remember that the psychologist who did have that access was from the state Department of Health and Welfare; it wasn't somebody chosen by the defense," Leroy said.

Leroy pointed out that there are some ethical issues that come up when a mental health professional gives opinions about someone they have not personally interviewed, and it’s not likely the prosecution would give another expert access to her.

If the judge determines she is unfit for trial, there would be that 90-day time out for rehabilitation. In Idaho, the defense can roll that over to another 90 or 180 days. The rehabilitation period could go as long as 270 days before being brought back to the judge.

Leroy said if the person hasn't been restored then, they can be committed to the Department of Health and Welfare for an even longer period.

"And eventually, the prosecutor can either decide to dismiss the case, or, if a long enough period passes, the judge can decide that it would be unfair to require the defendant to go to trial. That's usually after a period of several or many years," he said.

While that may not be what those seeking justice want to hear, Leroy said this case has clearly had mental health involved from the start.

He said there are instances where mental health issues can be used to delay justice, but Idaho law requires that the defendants understand the proceedings against them.

Leroy expects the judge will set the new hearing in the next 30 days or so. For now, Vallow Daybell will be transferred to a state mental health facility.

Idaho is one of four states that does not have an “insanity defense.” Leroy was the attorney general when it was abolished in the 80s. But he says there is still a limited realm for mental health issues in a courtroom, if a defendant can prove that they didn’t have mental capacity at the time of the crime. He says finding Vallow Daybell unfit for trial now has nothing to do with her mental state at the time of her alleged crimes.

Leroy also said that these new developments will not impact the case against her husband, Chad Daybell.

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