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BOISE — Judge Steven Boyce on Thursday caught a critical error in the indictment against Chad Daybell for 7-year-old Joshua "JJ" Vallow's murder and asked for further argument on what to do with the charge.
After considering attorneys' arguments on a discrepancy in the dates in charging documents, he denied a defense motion to acquit Daybell on that charge. But Boyce said he had not yet determined how the court would fix what he believes is a "clerical error."
The motion hearing came after the prosecution called its final witness and rested its case against Daybell.
Daybell is on trial, charged with first-degree murder in the death of his wife, Tammy Daybell, and in the deaths of his new wife Lori Daybell's children — 7-year-old JJ Vallow and 16-year-old Tylee Ryan. He is also charged with conspiracy to commit first-degree murder of each of the victims, grand theft and two counts of insurance fraud.
KSL.com is streaming the trial daily.
Death percentages
FBI agent Doug Hart testified that seven days after Lori Vallow Daybell's previous husband, Charles Vallow, was shot and killed, Chad and Lori Daybell began texting each other about the "death percentages" of the three people Chad Daybell is now on trial for killing.
Hart, who was tasked with looking into the couple's texts, was the final witness called by the prosecution.
He told jurors a "death percentage" refers to how close the couple believed a person was to death. The conversation about death percentages is a series of texts with varying degrees of detail over three weeks in July and August of 2019, Hart testified.
Hart said his investigation found that in Chad and Lori Daybell's text conversations, sometimes low numbers meant close to death and sometimes high numbers meant close to death; the meaning was not consistent.
When Chad Daybell said Tammy Daybell was at 3% and JJ was at 2% around when Lori Daybell moved to Idaho, Lori Daybell questioned, "Not zero?" Hart said, in this case, lower meant closer to death.
At one point, Lori Daybell texted Chad Daybell, after speaking about her niece's children, that she and the niece were "both so tired of taking care of demons. We are weary. Please ask the Lord to take them!"
Later Chad Daybell said JJ's percentage was at zero, and Lori Daybell responded she sensed JJ was "barely attached to his body."
Hart spoke about texts in which Chad Daybell references Charles Vallow's death percentage and compared it to Tammy Daybell's percentage. Hart said, "Charles Vallow didn't have a heart attack or die in his sleep … he was shot and killed, so these death percentages by Chad Daybell are not simply a reference to natural deaths."
Hart also talked about texts where Chad Daybell referred to a chart that he claimed accurately predicted the deaths of other people who had died, including a neighbor, George H.W. Bush and Stan Lee.
'A perfectly orchestrated plan'
Hart talked about a specific set of texts on Aug. 10, 2019, about a month before Tylee's death, that he said show "the clearest and most specific reference to a plan regarding Tylee and JJ."
He said Lori Daybell asked Chad Daybell if there was "a perfectly orchestrated plan to take the children." Chad Daybell's response was, "There is a plan being orchestrated for the children. I was shown last night how it fit together, but it has been taken from my mind of course."
Hart said the couple frequently referred to a "big plan" and a finish line, which he determined was "for Chad Daybell and Lori Daybell to live this fantasy life together" away from their previous spouses and Lori's children.
After Lori Daybell said in a text that Chad Daybell would have to go back to his home after visiting her, he responded that "extreme changes" were coming, and he welcomed the change.
"Within three months of this date, Tylee, JJ and Tammy are all dead," Hart said.
On Oct. 5, 2019, Chad Daybell told the then-Lori Vallow that his wife, Tammy Daybell, was in limbo and there was a demonic entity named Viola in her body.
Texts from Chad Daybell said, "I have connected with Tammy in Limbo, and she is very frustrated and upset. She wants Viola to be removed as soon as possible. … Not fully sure of the timing for removal, but once her actions verify the differences, I don't want to wait."
Hart said removal would indicate physical death, based on his review of other messages. He said a few days later, Oct. 9, 2019, was "the first attempt on Tammy Daybell's life," and she died a few weeks later on Oct. 19, 2019.
In messages sent the morning of Oct. 20, 2019, Lori and Chad Daybell texted about spending the night together and finding a condo in Kauai, Hawaii, to live in at the start of the next month. Chad Daybell said, "I'm feeling sad, but it isn't for the reason everyone thinks!"
Hart said neither Chad nor Lori Daybell expressed grief about the loss of their spouses. They married in Hawaii on Nov. 5, 2019.
Chad Daybell claimed to cause pain
In addition to Chad Daybell being a source Lori Daybell would look to for death percentages, Hart said he would also talk about "giving pain" to people around Lori Daybell.
In one message, after telling Lori Daybell that Tylee's death percentage is at 0.13 and JJ's is at 99.99, Chad Daybell talked about turning up pain and placing a "spiritual virus" inside Tylee. In that same message, Chad Daybell said he had visited JJ and told JJ "to follow Amy 'into the light,' which is a common reference to death," Hart said, noting he doesn't know who "Amy" is.
Lori Daybell's response to the message was, "That is sweet! I miss you desperately!!"
Lori Daybell also asked about death percentages for her niece Melani Pawlowski's son, who Hart said was 3 or 4 years old at the time. Chad Daybell told Lori Daybell the boy's "desire to depart" is at 80% and he used his "sword of light" to "slice" the child's aura and also "decreased his pain tolerance to 1 percent and greatly increased his pain."
In one instance while Lori Daybell was on a road trip with Pawlowski and her children, Chad Daybell offered to cause pain to "those two 3s you're riding with," referring to a rating he had previously given.
Lori Daybell responded, "Probably hold off on them until we arrive. They will be a mistake to deal with. But I'll text you if they start acting up and we can zap them."
Plan to 'eliminate them completely'
After Lori Daybell and her brother Alex Cox moved to Idaho, Cox texted his sister and told her his new Wi-Fi password was "2manykids." Lori Daybell's response was "Funny!!" Cox then refers to "Zs," which Hart said meant zombies. Other witnesses have said both JJ and Tylee were referred to as zombies before their deaths.
Later in the conversation, Lori Daybell told her brother, "We r trying to get to the bottom of what we need to do to eliminate them completely. (Heart emoji) I'm sure you will be told also."
Hart said this shows that Cox would also have information about the plan.
The jury was shown a short video, made just five days later, of Tylee hugging JJ at Yellowstone with Cox smiling behind them.
The prosecution also showed the last video of JJ, showing him sitting on a couch with a drink. In texts two days after the video, Lori Daybell told a babysitter JJ's grandparents had come to get him. Heart said the text was the "first lies" investigators could document about JJ's location.
Finding the children
Hart testified about the burial sites of the children, behind Chad Daybell's Salem, Idaho, home, and assisting in searching for JJ and Tylee while they were still considered missing.
When asked whether investigators typically consider parents as suspects in a case with missing children, Hart said, "You look everywhere; you cannot have blinders on."
During his initial survey of Chad Daybell's property the day the children were found, Hart said he noticed a "change in the plant growth that's fairly distinctive," where they would soon find JJ's body.
The plants were a different color, and there was a lack of growth directly over the grave.
"You could actually feel a seam where the sod had been taken up," he said.
Hart said he contacted Chad Daybell's children after finding the bodies. "Initially they agreed to (talk with) us, and then the following day declined to keep that appointment after speaking to Chad Daybell," he said.
Hart testified another time on April 22 about manipulating texts between Lori and Chad Daybell. He said after a fight, Chad Daybell sent Lori Daybell a message saying, "The angels are angry that you are ignoring me."
Typo puts charge for JJ's murder in question
After the prosecution had finished calling witnesses Thursday morning, defense attorney John Prior asked the judge for a directed verdict, meaning he would like the judge to rule there was not enough evidence presented to convict Chad Daybell.
"There is no indication that Mr. Daybell was present, took an active part in, or facilitated in any way, the murder of JJ and Tylee," Prior said.
He said references to "significant religious discussions" were not enough to support the conspiracy charges, and the only testimony relating to fraud was the increase in Tammy Daybell's life insurance policy, when she had a longstanding policy from 2002.
Ingrid Batey, special appointed prosecutor, argued in response that the judge's decision should be most favorable to the state at this point. She said the jury should be the ones to consider the credibility of witnesses and how much weight to give the evidence presented.
Judge Steven Boyce denied the motion for each of the charges, except the murder charge for JJ Vallow's death. He said the charging documents said the murder of JJ happened between Sept. 8 and Sept. 9, 2019. Multiple witnesses have testified that JJ died between Sept. 22 and Sept. 23, 2019, but Tylee died between Sept. 8 and Sept. 9, 2019.
The judge asked prosecutors to address why Chad Daybell should not be acquitted on that charge, as there was no evidence at trial that JJ was murdered on the dates in the charging documents.
After a break to research the topic, Batey argued there are multiple ways the court could solve the issue. She said prosecutors did not have permission from the court to change that date or that charge so the original charging documents where the dates are correct could apply, the judge could change the jury's instructions to say "in September of 2019" instead of giving specific dates, or the judge could allow the prosecution to open its case again, in order to amend the indictment.
"Frankly, your honor, it's not a proper subject for a motion for acquittal. In fact, a date is not an element of a crime," Batey said.
Prior said any change would create a "substantial due process argument" for Chad Daybell in an appeal. He said the state does not have the right to do any of those things, and could only ask to make a correction before it rested its case. He argued there is no "wiggle room."
"Four lawyers have had over a year to analyze this," he said. "They've lost their chance, they don't get to go back."
After another break to consider his decision, Boyce said the "procedural history" of the charge is important, and between May of 2021 and February of 2024, the dates in the charging documents were correct and no changes to that charge were authorized by the court.
He said he considered whether a change would provide prejudice to Chad Daybell and the right of the state to seek justice. He said Chad Daybell had notice of which dates the prosecutors intended through the earlier documents and knowledge of Lori Daybell's trial and conviction in 2023.
"There's certainly no surprise that would come to the defense knowing that the dates that have been alleged are the 22nd and 23rd," he said.
Prior will begin calling witnesses on Monday morning as the defense begins to present their case.
Wednesday's testimony:
