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Murder In Moscow: Judge Hippler's Order On Bryan Kohberger's Capital Punishment Motion (Part 8) · Beyond The Horizon

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  Speaker 1: What's up everyone, and welcome back to the program. In
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  Speaker 1: this episode, we're getting right back to Judge Hippler's order
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  Speaker 1: in regards to Brian Kolberger's motion to dismiss the death
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  Speaker 1: penalty f motion to strike death penalty on grounds of
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  Speaker 1: state speedy trial preventing effective assistance of counsel. In seeking
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  Speaker 1: to strike the death penalty, defendant multifaceted argument begins with
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  Speaker 1: the premise that this court should overrule decades of Idaho
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  Speaker 1: appellate precedent and conclude that the right to a speedy trial,
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  Speaker 1: guaranteed by Article I, Section thirteen of the Idaho Constitution,
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  Speaker 1: should no longer be governed by the Barker factors, but
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  Speaker 1: should be subject to a six month speedy trial clock.
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  Speaker 1: He then asserts that as a capital defendant, he cannot
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  Speaker 1: obtain effective assistance of counsel within a six month period. Thus,
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  Speaker 1: at the time he waived his statutory and constitutional speedy
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  Speaker 1: trial rights, he was presented with an unconstitutional hobson's choice
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  Speaker 1: between his constitutional rights to a speedy trial and his
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  Speaker 1: constitutional right to effective assistance of council. He argues this
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  Speaker 1: choice rendered his waiver involuntary and deprived them of his
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  Speaker 1: constitutional speedy trial rights. The only remedy he contends is
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  Speaker 1: striking the death penalty. The state points out that well
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  Speaker 1: settled case law, which is binding on this court, provides otherwise. Further,
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  Speaker 1: the state notes that the defendant waived his speedy trial rights,
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  Speaker 1: which is dispositive of any contention that such rights have
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  Speaker 1: been infringed. The state is correct one speedy trial rights.
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  Speaker 1: A criminal defendant in Idaho enjoys a constitutional right to
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  Speaker 1: a speedy trial under both the US Constitution and the
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  Speaker 1: Idaho Constitution. In all criminal prosecutions, the accused shall enjoy
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  Speaker 1: the right to a speedy trial and a public trial
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  Speaker 1: Idaho Constitution, Article one, Section thirteen. In all criminal prosecutions,
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  Speaker 1: the party accused shall have the right to a speedy
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  Speaker 1: and public trial. While the text is similar, these rights
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  Speaker 1: are not identical, with the key difference being when the
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  Speaker 1: speedy trial clock begins. However, for the past fifty years,
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  Speaker 1: the Idaho Supreme Court has analyzed the defendant's rights under
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  Speaker 1: both constitutional provisions using the four factor a balancing test
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  Speaker 1: set fourth and Barker Verse WINGO. Four oh seven US
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  Speaker 1: nineteen seventy two. Those factors are one, the length of
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  Speaker 1: the delay two the reason for the delay, three, whether
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  Speaker 1: the defendant asserted the right to a speedy trial, and
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  Speaker 1: for the prejudice to the defendant. In addition, I see
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  Speaker 1: section nineteen thirty five oh one affords criminal defendants a
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  Speaker 1: statutory speedy trial right that provides additional protection beyond what
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  Speaker 1: is required by the US and Idaho constitutions. Clark won.
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  Speaker 1: Thirty five Idaho at. Two fifty eight, sixteen p dot
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  Speaker 1: three d At nine thirty four. That statute mandates, in
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  Speaker 1: relevant part that unless good cause is shown, an indictment
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  Speaker 1: or prosecution must be dismissed if a defendant whose trial
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  Speaker 1: has not been postponed upon his application is not brought
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  Speaker 1: to trial within six months from the date that the
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  Speaker 1: defendant was arraigned before the court in which the indictment
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  Speaker 1: is found. ICEE. Section nineteen thirty five oh one three
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  Speaker 1: two the Court's bound by Lindsey to apply the Barker factors,
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  Speaker 1: which avoid a Hobson's choice. Defendant contends that in adopting
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  Speaker 1: Barker to analyze speedy trial violations under the Idaho Constitution,
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  Speaker 1: the Idaho Supreme Court Lindsay misconstrued the Framer's intent to
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  Speaker 1: define the speedy trial guarantee by reference to the corollary
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  Speaker 1: statutory right provided by what is now ice Section nineteen
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  Speaker 1: Dashed thirty five oh one. This court, however, is bound
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  Speaker 1: by Lindsey Gusman one twenty two, Idaho. At. Nine eighty
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  Speaker 1: seven p. Dot two d At six sixty six. Consequently,
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  Speaker 1: defendant state constitutional speedy right is governed by the Barker factors. Moreover,
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  Speaker 1: the application of the Barker factors oviates any argument that
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  Speaker 1: defendant was faced with a Hobson choice between his constitutional
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  Speaker 1: right to a speedy trial and a constitutional right to
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  Speaker 1: effective assistance of council, thus rendering his waiver of speedy
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  Speaker 1: trial rights involuntary. The Idaho Supreme Court is found that
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  Speaker 1: a constitutionally permissible reason to delay trial is to allow
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  Speaker 1: defense council an adequate time to prepare Langford, one seventy two,
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  Speaker 1: Idaho at. Five sixty three, holding delay to allow prosecutors
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  Speaker 1: and defense counsel to prepare for trial was reasonably necessary
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  Speaker 1: and therefore not a violation of defendants constitutional speedy rights.
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  Speaker 1: See also United States versus A. Shimmy, nine thirty two,
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  Speaker 1: Seventh Circuit nineteen ninety one. Rejecting the argument that the
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  Speaker 1: constitutional right to a speedy trial and effective assistance of
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  Speaker 1: council are mutually exclusive. A delay in trial to permit
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  Speaker 1: adequate pre trial investigation merely results in a less speedy trial,
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  Speaker 1: not necessarily a constitutional violation. Further, while defendant's election to
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  Speaker 1: waive speedy trial rights resulted in him missing out on
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  Speaker 1: the statutory benefit of the six month deadline. Under IC
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  Speaker 1: nineteen thirty five oh one, there is nothing impermissible when
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  Speaker 1: to defend in his force to choose between statutory right
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  Speaker 1: and a constitutional right Stewart four one ft three d
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  Speaker 1: At ten sixty nine Simmons is not violated when a
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  Speaker 1: defend in his force to choose between a statutory right
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  Speaker 1: and a constitutional right. Consequently, defendant's assertion that his waiver
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  Speaker 1: was not voluntary because he was forced to choose between
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  Speaker 1: two constitutional rights falls flat, as it stands defendant as
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  Speaker 1: validly waived all speedy trial rights, which is dispositive of
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  Speaker 1: any claim that he has been deprived thereof three. Defendant
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  Speaker 1: is not presented a valid basis for second guessing Lindsey,
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  Speaker 1: even if this Court were not bound by Lindsay. Defendant's
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  Speaker 1: argument that it is wrongly decided is unavailing. Defendant's argument
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  Speaker 1: begins with the premise that constitutional provisions must be construed
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  Speaker 1: in light of the law prior to their adoption. State
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  Speaker 1: versus Green one fifty eight Idaho eight eighty four, eight
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  Speaker 1: eighty seven, twenty fifteen. Defendant points out that at the
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  Speaker 1: time of the ratification of Idaho's constitution in nineteen eighty nine,
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  Speaker 1: Idaho speedy Trial Statute provided that absent good cause showing
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  Speaker 1: an indictment must be dismissed if a defendant whose trial
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  Speaker 1: has not been postponed upon his application is not brought
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  Speaker 1: to trial at the next term of the court in
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  Speaker 1: which the indictment is triable after it's found Rs. Eighteen
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  Speaker 1: eighty seven, Section eighty two twelve eighteen sixty four. At
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  Speaker 1: that time, the power to fix the time and place
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  Speaker 1: ie term for holding the court was vested in the
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  Speaker 1: Judge of the Supreme Court United States versus Counts two, Idaho,
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  Speaker 1: four forty six, twenty one, page four oh seven four
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  Speaker 1: oh eight eighteen eighty nine, People Verse Heed, Idaho. Four
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  Speaker 1: h two, eighteen seventy one. However, Article five, section eleven
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  Speaker 1: of the Idaho Constitution reigned in this discretion to set
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  Speaker 1: terms somewhat by prescribing that district court be held at
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  Speaker 1: least twice in each year. If further provided, This section
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  Speaker 1: shall not be construed to prevent the holding of special
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  Speaker 1: terms under such regulations as may be provided by law.
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  Speaker 1: Idaho Constitution Article five, section eleven. See also ICA Section
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  Speaker 1: one seven oh six, requiring at least two terms each
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  Speaker 1: year for the district court in each county to be
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  Speaker 1: fixed by court order. The setting of the court terms
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  Speaker 1: by which statutory speedy trial deadlines were measured became a
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  Speaker 1: shared responsibility between the judiciary and the legislature up until
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  Speaker 1: Lindsey was decided. In nineteen seventy five, the Idaho Supreme
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  Speaker 1: Court construed the speedy trial right guaranteed by Article one,
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  Speaker 1: section thirteen. With reference to IC section nineteen thirty five
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  Speaker 1: oh one. In Schrom vs. Kramer, the Court noted, under
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  Speaker 1: constitutional provisions providing for a speedy trial, the authorities consistently
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  Speaker 1: hold that the term speedy trial, being of indeterminate meaning,
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  Speaker 1: is subject to some construction by the legislature, and the
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  Speaker 1: statutes similar to our section nineteen thirty five oh one
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  Speaker 1: are to be read in connection with the constitutional provision
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  Speaker 1: and are to be given effect as legislative definition of
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  Speaker 1: what constitutes a speedy trial under the Constitution. Our statute
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  Speaker 1: was part of the Criminal Practice Act in eighteen sixty four.
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  Speaker 1: It was a force and effect at the time of
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  Speaker 1: the adoption of our Constitution, and has been in force
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  Speaker 1: at all times since. The statute and the Constitutional Provision,
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  Speaker 1: as read and construed, together delimit the rights of an
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  Speaker 1: accused to a dismissal of an information for undue delay
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  Speaker 1: of trial. However, in Lindsay, defendant contends that the Idaho
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  Speaker 1: Supreme Court erroneously veered away from this approach by adopting
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  Speaker 1: the federal Barker test rather than continuing to rely on
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  Speaker 1: IC Section nineteen thirty five oh one in analyzing whether
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  Speaker 1: a defendant state constitutional speedy trial right was violated. As
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  Speaker 1: previously discussed, a defendant speedy trial right under IC Section
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  Speaker 1: nineteen thirty five oh one was dependent on terms set
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  Speaker 1: through a joint effort between the legislature and the judiciary.
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  Speaker 1: By adopting Barker rather than abide by IC Section nineteen
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  Speaker 1: thirty five oh one, defendant contends the Idaho Supreme Court
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  Speaker 1: effectively made the judiciary the sole voice in determining whether
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  Speaker 1: a defendant state constitutional speedy trial rights were violated. Had
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  Speaker 1: the court not made this error, the state constitutional speedy
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  Speaker 1: trial right would continue to be defined by IC Section
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  Speaker 1: nineteen thirty five oh one, which was amended by the
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  Speaker 1: legislature in nineteen eighty to require a defendant to be
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  Speaker 1: brought to trial within six months. While creative, there are
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  Speaker 1: two flaws in defendants argument. First, in so far as
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  Speaker 1: he relies on Green for the proposition that constitutional provisions
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  Speaker 1: must be construed in light of the law prior to
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  Speaker 1: their adoption, Green has been abrogated on this point State vers. Clark,
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  Speaker 1: one sixty five Idaho twenty nineteen. In Clark, the Idaho
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  Speaker 1: Supreme Court observed the problem created by this approach, noting
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  Speaker 1: Green should stand for the principle that pre existing statutes
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  Speaker 1: in the common law may be used to help inform
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  Speaker 1: our interpretation of the Idaho Constitution, but they are not
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  Speaker 1: the embodiment of nor are they incorporated within the Constitution
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  Speaker 1: the whole. Otherwise would elevate statutes and the common law
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  Speaker 1: that predate the Constitution's adoption two constitutional status. Thus, while
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  Speaker 1: the version of IC Section nineteen thirty five oh one
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  Speaker 1: in existence at the time Article one, Section thirteen of
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  Speaker 1: the Idaho Constitution was ratified, certainly colors the framers in
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  Speaker 1: it cannot control the analysis. The second flaw is that
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  Speaker 1: the six months speedy deadline now imposed by the IC
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  Speaker 1: was not an effect when Article one, section thirteen was ratified. Rather,
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  Speaker 1: the statute measured the speedy deadline by court terms, which
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  Speaker 1: the legislature abolished long ago. Therefore, even if defendant were
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  Speaker 1: correct that the speedy trial right guaranteed by the Idaho
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  Speaker 1: Constitution is to be strictly interpreted by reference to IC
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  Speaker 1: section nineteen thirty five oh one as it existed in
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  Speaker 1: eighteen eighty nine, it cannot be interpreted by imposing a
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  Speaker 1: six month time limit. Moreover, even though the Idaho Supreme
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  Speaker 1: Court pre Lindsay acknowledged the importance of IC section nineteen
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  Speaker 1: thirty five oh one in defining what was meant by
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  Speaker 1: Idaho's constitutional guarantee to a speedy trial, it also recognizes
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  Speaker 1: that whether a defendant was deprived of his or her
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  Speaker 1: constitutional speedy trial rights cannot simply be measured by time.
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  Speaker 1: In ellen Wood versus Kramer, the Idaho Supreme Court observed,
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  Speaker 1: though a right of a defendant to a speedy trial
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  Speaker 1: was recognized by a common law, and this right has
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  Speaker 1: been embodied in our constitution. Idaho Statute Section nineteen thirty
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  Speaker 1: five oh one ICEE is defined in substance what is
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  Speaker 1: meant by a speedy trial, and that is, one accused
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  Speaker 1: of a crime should be tried no later than the
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  Speaker 1: next term of court subsequent to being held to answer,
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  Speaker 1: unless the trial is postponed upon defendant's application or with
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  Speaker 1: his consent or other lawful valid reason. One accused of
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  Speaker 1: a crime is entitled to be tried under fixed standards
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  Speaker 1: and rules, free from capricious and oppressive, unnecessary delays, and
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  Speaker 1: within reasonable diligence. The term speedy trial is relative and
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  Speaker 1: must be considered and construed and applied depending upon all
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  Speaker 1: surrounding facts and circumstances. No arbitrary, fixed standard applicable to
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  Speaker 1: all situations can be defined. Time must in many cases
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  Speaker 1: be allowed for preparations, sembling of witnesses, or other reasons,
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  Speaker 1: and all circumstances and conditions must be considered in determining
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  Speaker 1: whether or not one accused of crimes was accorded a
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  Speaker 1: speedy trial within the meaning of the constitutional provision. Indeed,
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  Speaker 1: in Lindsay. The Court recognized that adoption of the Barker
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  Speaker 1: factors comported with its own historic approach of referring to
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  Speaker 1: considerations in addition to the mere passage of time in
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  Speaker 1: determining whether a defendant has been deprived of speedy trial rights.
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  Speaker 1: This approach is consistent with how I see section nineteen
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  Speaker 1: thirty five oh one has since its territorial days been
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  Speaker 1: defined by allowing trial to be prolonged beyond the next
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  Speaker 1: court term upon a showing of good cause. Consequently, the
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  Speaker 1: Court does not find Defendant's argument for calling Lindsay into
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  Speaker 1: question supportable. All right, we're going to wrap up right here,
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  Speaker 1: and in the next episode we're going to pick up
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  Speaker 1: with g motion to strike States notice on grounds of
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  Speaker 1: international law. All of the information that goes with this
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  Speaker 1: episode can be found in the description box.