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Murder In Moscow: Bryan Kohberger's Memo In Support Of Trifurcating The Proceedings (Part 2) · Beyond The Horizon

• 0:00
  Speaker 1: What's up everyone and welcome back to the program. In
• 0:03
  Speaker 1: this episode, we're picking up where we left off with
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  Speaker 1: a motion and memorandum in support of motion to trifurcate
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  Speaker 1: the proceedings and apply rules of evidence during the eligibility phase.
• 0:14
  Speaker 1: When a defendant is charged as a persistent violator pursuant
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  Speaker 1: to Idaho Code Section 19-2514, the jury determines whether he
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  Speaker 1: is a persistent violator during a second proceeding. The persistent
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  Speaker 1: violator charge is stated in a two-part information State v. Johnson,
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  Speaker 1: 86 Idaho, 51, 383, P2D, 326, 1963. Initially, the jury
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  Speaker 1: is only informed of the offense with which the defendant
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  Speaker 1: is charged. Part 1 of the information. Depending upon the
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  Speaker 1: verdict on Part 1, the second part is read and
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  Speaker 1: the jury deliberates further. When dealing with other enhancement statutes,
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  Speaker 1: judges have discretion to divide the proceedings into two phases.
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  Speaker 1: For example, Idaho law allows the judge to determine whether
• 1:01
  Speaker 1: the firearm enhancement should be determined at one proceeding or two.
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  Speaker 1: The court decides whether to give the firearm enhancement instruction
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  Speaker 1: along with instructions on the case in chief or to
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  Speaker 1: allow the jury to deliberate on the case in chief
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  Speaker 1: first and on the firearm enhancement second, depending on the case.
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  Speaker 1: Idaho law contemplates judicial discretion and separation of the determinations
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  Speaker 1: when necessary. In this case, the aggravation that is expected
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  Speaker 1: to be presented separating the two determinations into an eligibility
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  Speaker 1: and sentencing phase is necessary to ensure a legal and
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  Speaker 1: fair sentencing. Under the trifurcated model, only after the jury
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  Speaker 1: decides eligibility does it move on to the sentencing phase.
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  Speaker 1: In contrast to the eligibility phase, the sentencing phase in
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  Speaker 1: which the jury decides whether the death penalty is appropriate
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  Speaker 1: is more like a non-capital sentencing determination. At this phase,
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  Speaker 1: it's the defendant's burden to present mitigating evidence and the
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  Speaker 1: sentencer's role to decide the appropriate punishment. Unlike evidence of
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  Speaker 1: statutory aggravation, which must be proved beyond a reasonable doubt,
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  Speaker 1: mitigation does not need to meet this burden. The jury
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  Speaker 1: does not need to find that the mitigation outweighs the
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  Speaker 1: aggravation and beyond a reasonable doubt. The jury both considers
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  Speaker 1: statutory and non-statutory aggravation when making this determination. The Idaho
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  Speaker 1: Supreme Court has held that the rules of evidence do
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  Speaker 1: not apply at capital sentencing proceedings. The court has held
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  Speaker 1: that the admission of evidence in capital sentence proceedings is
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  Speaker 1: governed by Idaho Section 19-2516-6, which provides that the state
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  Speaker 1: and the defendant shall be entitled to present all relevant
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  Speaker 1: evidence in in aggravation and mitigation. The Idaho Supreme Court
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  Speaker 1: has also held that the right to confrontation does not
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  Speaker 1: apply to sentencing procedures. The court explained... The justification for
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  Speaker 1: the refusal to completely extend the procedural protections of the
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  Speaker 1: Sixth Amendment to the sentencing phase is based, in part,
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  Speaker 1: on the belief that modern, peniological policies which favor sentencing
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  Speaker 1: based on the maximum amount of information about the defendant
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  Speaker 1: would be thwarted by restrictive procedural and evidentiary rules. Under
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  Speaker 1: a bifurcated system, the bulk of evidence in capital sentencing
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  Speaker 1: trials is admitted without rules of evidence. Much of the non-statutory,
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  Speaker 1: aggravating evidence the jury is allowed to hear would not
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  Speaker 1: normally be admitted as evidence in the guilt phase of
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  Speaker 1: the trial. In a death penalty case, the rules of
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  Speaker 1: evidence in what should be the most carefully scrutinized area
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  Speaker 1: of law are entirely lax. As Sharon Turlington explains, this
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  Speaker 1: does not make sense. The rationale for this has been
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  Speaker 1: that while capital punishment demands increased reliability, the admission of
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  Speaker 1: more rather than less evidence during the penalty phase enhances reliability.
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  Speaker 1: If juries are not allowed to hear certain types of
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  Speaker 1: evidence because it's too prejudicial or not probative of an
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  Speaker 1: individual's guilt, why does that same evidence somehow transform into
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  Speaker 1: being more reliable simply because it's being introduced in the
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  Speaker 1: penalty phase? It seems that the opposite is true, that
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  Speaker 1: the sentence of death would be based more on past
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  Speaker 1: conduct than on the strength of the facts in the
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  Speaker 1: current case. This should not be acceptable if our constitutional
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  Speaker 1: standards truly require that the death penalty be applied in
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  Speaker 1: a rational and non-arbitrary way. The solution for allowing for
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  Speaker 1: the maximum amount of evidence to be presented to the
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  Speaker 1: jury while not violating Mr. Kohlberger's constitutional rights is to
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  Speaker 1: have a trifurcating proceeding. While the Constitution prohibits the introduction
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  Speaker 1: of character evidence during the adjudication of guilt or innocence,
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  Speaker 1: it also requires a capital trial to include as much
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  Speaker 1: individualized information as possible about the defendant. It allows the
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  Speaker 1: maximum amount of evidence about the defendant to be presented
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  Speaker 1: while still complying with the state and federal constitutions. The
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  Speaker 1: third phase, the sentencing phase, in which the jury determines
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  Speaker 1: whether death is appropriate punishment, would be conducted like a
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  Speaker 1: regular sentencing proceeding in which the rules of evidence are
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  Speaker 1: not applied and other rights including the right to confrontation
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  Speaker 1: are limited. All the evidence and aggravation that the state
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  Speaker 1: seeks to introduce is admitted in the final phase for
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  Speaker 1: the purpose of determining an appropriate sentence. Several jurisdictions have
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  Speaker 1: used the trifurcated system, and a trifurcated system would also
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  Speaker 1: protect Mr. Koberger's right to confrontation. Unlike Idaho, a majority
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  Speaker 1: of courts who have addressed this issue have recognized that
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  Speaker 1: confrontation clause applies to evidence used to establish an aggravating factor.
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  Speaker 1: necessary to make the defendant eligible for the death penalty.
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  Speaker 1: The Fourth Circuit Court of Appeals has suggested that the
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  Speaker 1: right to confrontation applies during the guilt and eligibility phases
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  Speaker 1: of a trial. The court explained, during the sentence selection
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  Speaker 1: phase of a capital trial, the jury exercises discretion in
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  Speaker 1: selecting a life sentence or the death penalty, and any
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  Speaker 1: facts that the jury might find during this phase do
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  Speaker 1: not alter the range of sentences it can impose on
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  Speaker 1: the defendant. Under Federal Death Penalty Act, the jury finds
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  Speaker 1: the facts necessary to support the imposition of the death
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  Speaker 1: penalty in the guilt and eligibility phases of the trial.
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  Speaker 1: It is only during these phases that the jury makes
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  Speaker 1: constitutionally significant factual findings. Some federal district courts have trifurcated
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  Speaker 1: the proceeding in order to comply with the constitutional restrictions.
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  Speaker 1: In United States v. Bodkins 205, WL 1118158 at 4
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  Speaker 1: and 5. The court chose to separate the penalty phase
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  Speaker 1: into an eligibility portion and a sentencing portion because the
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  Speaker 1: court determined that if the defendants were convicted of one
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  Speaker 1: or more death-eligible offenses, the subsequent sentencing proceeding would be
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  Speaker 1: bifurcated into an eligibility phase followed by a selection phase.
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  Speaker 1: The district court explained that any testimonial hearsay evidence offered
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  Speaker 1: during the eligibility phase would have to meet the requirements
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  Speaker 1: of Crawford before it could be presented to the jury.
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  Speaker 1: Those same requirements would not apply to hearsay evidence, testimonial,
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  Speaker 1: or non-testimonial offered during the selection phase. The federal district
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  Speaker 1: court in the Northern District of Iowa chose trifurcation as well.
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  Speaker 1: United States v. Johnson 37D8, F.SUPP 2D 1051, 1056 Northern District, Iowa, 2005.
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  Speaker 1: The court concluded that trifurcation is required for three reasons. First,
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  Speaker 1: the court concluded that the danger of unfair prejudice arising
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  Speaker 1: from jurors hearing victim impact evidence or evidence on other
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  Speaker 1: non-statutory aggravating factors before the jurors make their determination on
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  Speaker 1: the defendant's eligibility for the death penalty on the basis
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  Speaker 1: of the gateway and statutory aggravating factors Second, the court concluded,
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  Speaker 1: that the information concerning gateway and statutory aggravating factors in
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  Speaker 1: this case is entirely severable from information concerning any other factor.
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  Speaker 1: Where the government intends to rely on evidence admitted in
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  Speaker 1: the merits phase to prove the gateway and statutory aggravating factors,
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  Speaker 1: an introduction of extraneous information into the jury's determination of
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  Speaker 1: the gateway and statutory aggravating factors could only tend to
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  Speaker 1: confuse the issues. Third, the court concluded that if the
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  Speaker 1: jury is permitted to hear information on all of the
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  Speaker 1: factors in one proceeding, the jury is reasonably likely to
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  Speaker 1: be misled into believing that all information is pertinent to
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  Speaker 1: the determination of all factors and the balance of factors.
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  Speaker 1: The Federal District Court in the United States v. Jordan,
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  Speaker 1: 357 F.S.U.P.P., 2D. 889, Virginia 2005, also chose to separate the
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  Speaker 1: sentencing phases into two parts to avoid a confrontation clause problem.
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  Speaker 1: In holding that the confrontation clause applied to the death
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  Speaker 1: penalty stage, the court distinguished between the two facets of
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  Speaker 1: the deliberative process in the penalty stage, eligibility and selection.
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  Speaker 1: The court held, from a constitutional perspective... The eligibility phase
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  Speaker 1: is the most critical because it's necessary prerequisite to the
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  Speaker 1: jury's consideration of the death penalty. It encompasses the findings
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  Speaker 1: of fact that increase the defendant's authorized punishment from life
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  Speaker 1: in prison to death. Jordan then held, consistent with the
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  Speaker 1: constitutional safeguards identified by the United States Supreme Court, this
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  Speaker 1: court is of the opinion that with respect to the
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  Speaker 1: eligibility phase of the penalty stage of a capital trial,
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  Speaker 1: the confrontation clause is equally applicable. The district court found
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  Speaker 1: that a close examination of the governing statute reveals that
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  Speaker 1: the statute does not necessarily mandate a single unitary proceeding.
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  Speaker 1: The court found that the testimonial statements could be used
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  Speaker 1: in the selection phase, stating, unlike the eligibility phase, the
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  Speaker 1: selection phase is intended to be less structured and less
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  Speaker 1: encumbered by strict adherence to the rules of evidence. The
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  Speaker 1: court in Jordan concluded that unless its probative value is
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  Speaker 1: substantially outweighed by the danger of unfair prejudice, the jury
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  Speaker 1: should have as much information before it is possible when
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  Speaker 1: it makes the sentencing decision. The court in Jordan thus
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  Speaker 1: chose to separate the proceedings because the government intends to
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  Speaker 1: offer evidence, which in the court's view is inadmissible on
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  Speaker 1: the issue of eligibility, but permissible in the selection phase.
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  Speaker 1: Just as the federal district court found that the Federal
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  Speaker 1: Death Penalty Act does not mandate a single proceeding, neither
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  Speaker 1: does Idaho's death penalty scheme. Compare U.S. Code 18, Section
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  Speaker 1: 3593 with Idaho Code Section 19-2515. Idaho Code Section 19-2515
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  Speaker 1: refers to a sentencing proceeding but does expressively prohibit splitting
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  Speaker 1: the proceedings into two parts. Section 19-2515 contemplates a variety
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  Speaker 1: of situations and even allows the proceeding to be held
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  Speaker 1: before a different jury when necessary. In this case, given
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  Speaker 1: the extensive non-statutory aggravation that Mr. Koberger anticipates the state
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  Speaker 1: will seek to introduce in this case, trifurcation of the
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  Speaker 1: proceedings is necessary to protect his state and federal constitutional rights.
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  Speaker 1: Failure to separate the penalty proceeding will lead to an
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  Speaker 1: arbitrary and capricious sentence in violation of the Eighth Amendment
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  Speaker 1: to the United States Constitution and Article 1, Section 6,
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  Speaker 1: and 13 of the Idaho Constitution. It will also violate Mr.
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  Speaker 1: Koberger's constitutional rights under the 5th, 6th, and 14th Amendments
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  Speaker 1: to the United States Constitution and Article 1, Section 6
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  Speaker 1: and 13 of the Idaho Constitution, including his right to
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  Speaker 1: due process and a fair trial. Additionally, it would violate
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  Speaker 1: his right to confront witnesses under the 6th Amendment to
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  Speaker 1: the United States Constitution and Article 1, Section 13 of
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  Speaker 1: the Idaho Constitution. Conclusion Trifurcation of the proceedings is necessary
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  Speaker 1: to protect Mr. Koberger's state and federal constitutional rights. Mr.
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  Speaker 1: Koberger respectfully requests that the court grant the motion to
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  Speaker 1: trifurcate the proceedings into a guilt, eligibility, and sentencing phase. Mr.
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  Speaker 1: Koberger also asks that the court apply the rules of
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  Speaker 1: evidence to the guilt and eligibility phases. This was signed
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  Speaker 1: on September 4th, and it was signed by Jay Weston.
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  Speaker 1: Alright folks, that's going to do it for this document.
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  Speaker 1: And over the next few days, we're going to be
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  Speaker 1: introducing the rest of these documents that have just recently
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  Speaker 1: hit the docket. All of the information that goes with
• 13:04
  Speaker 1: this episode can be found in the description box.