A Real-World View of Incompetence to Stand Trial

In part 1 of this two-part series, we looked at the recent murder charges handed down to Chad Daybell and Lori Vallow, as well as the outrage that followed a psychologist’s conclusion after evaluating her that Lori Vallow is incompetent to stand trial. Initially, the prosecutor said he was challenging this opinion. A hearing was scheduled and a second opinion was expected.

Suddenly, however, the prosecutor did an about-face, saying he would no longer challenge the psychologist’s finding, sparking additional concern that Lori might escape the consequences of her actions. It also sparked a new round of anger and blame, particularly on social media. Her defense attorneys were accused of deviousness, the psychologist of being hoodwinked, and the prosecution and judge of being either weak, ignorant, or incompetent.

Here’s a forensic psychologist’s perspective on what this latest turn of events really means.

Don’t Believe the Hype

There’s nothing inherently manipulative or devious about questioning your client’s competency. It happens in eight to 15 percent of criminal cases. In fact, competency to stand trial evaluations are the most frequently performed type of forensic assessment; about 60,000 are performed every year. Between 20 and 30 percent result in an incompetency finding. It’s in the best interest of everyone—defense and prosecution alike—to have a defendant assessed if their mental state is in question. It’s also in the judge’s best interest to err on the side of caution. No one wants a case overturned on appeal because the defense expressed concern about their client’s mental state and was denied a chance to have those concerns addressed.

There’s also been a lot of hype about how long the trial could be delayed. I was watching a media interview shortly after Lori was found incompetent and the announcer kept talking about “when or if Lori would ever go to trial,” as if it would likely be years before Lori would be tried or her case might be in permanent limbo. That makes a dramatic story but is far from the truth. Research shows us that eighty-one percent of defendants initially found incompetent to stand trial were eventually restored, usually within 90 to 120 days. The average stay for an incompetent defendant in Iowa is thirty-five days.

Lori has now been remanded into the custody of the Department of Health and Welfare, where she will be given “restorative treatment” for up to ninety days. Restorative treatment typically involves psychotropic medication, most commonly ones that target psychotic symptoms. If she regains her competency before the ninety days are up, she can be returned at any point and the legal proceedings will resume. If she needs more time, she can be recommitted for an additional 180 days. It would be extremely rare for her to need more time than that.

But what if Lori Vallow refuses to take medication? If she thinks refusing medical treatment might be a good way to indefinitely postpone the inevitable, she will soon think again. In 2003, the Supreme Court ruled in the landmark case of Sell v. United States that a defendant may be involuntarily medicated solely for the purpose of restoration, provided that:

• there is a compelling government interest in prosecuting the case
• there is a reasonable likelihood of restoration occurring in the future
• medication side effects will not interfere with the defendant's ability to exercise his or her trial rights
• medications are the least intrusive option for treatment
• medications are medically appropriate

It’s been done numerous times.

Could Lori Vallow Be Faking It?

Of course, a lot of people don't think she even needs treatment because they don't believe she's mentally ill. Could Lori be faking? It's certainly a possibility. With so much at stake, malingering—or faking—in the correctional system is common. In one study of 879 participants, about one out of every six defendants found incompetent to stand trial was later found to be faking their symptoms.

Lori and Chad are currently named coconspirators in several of these cases and the current plan is to try them together. There’s been a lot of speculation that Lori is faking incompetency to delay her legal proceedings while Chad marches onward toward trial. The thinking is that Lori might be better off if her case is severed from Chad's so she can claim he was the mastermind and she was under his spell. Of course, the opposite argument has also been made—i.e., that Chad might do better if tried separately from Lori, as jurors don’t tend to look kindly at a parent who murders her own children.

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Current evidence suggests that Lori Vallow is certainly capable of deception. Many people interested in the case have seen bodycam footage of Lori confidently lying to police when they did a welfare check on JJ. Others have seen her behaving seemingly normally after her husband, Charles Vallow, had just been shot to death. In my view, there is little question that Lori could decide to fake incompetency and could perhaps fool a licensed psychologist. We don't know how this evaluation was conducted, if psychological testing was used, if the evaluator had access to jail records, police reports, information from her lawyer, and so forth. One of the things I used to do when I worked in a prison was to talk to some of the custody officers who saw this person every day. It's not hard to fake it when you're being evaluated for an hour or two but it's a lot harder to fake serious mental illness twenty-four hours a day.

It's also worth noting that several of Lori’s friends and family members, including her son and nephew, believe she is completely aware of what is going on and think she is trying to game the system. These were people who initially stood by her. These were also people who heard her express her unusual religious beliefs over and over again.

Now, as far as I know, none of them have talked to her recently; her son, Colby Ryan, for instance, has publicly stated that the last time he spoke with his mom was in June of 2020. So, these opinions are more relevant to a potential insanity defense (which is off the table as Idaho does not have an NGRI defense) than to her present state of mind. But there is often some overlap between a person’s mental state at the time of a crime and their mental state once arrested, particularly if they have received no mental health treatment in the interim.

The Bottom Line

The wheels of justice might turn a little slower in light of Lori Vallow’s recent incompetency ruling, but there is no reason to think they won’t start turning again soon.