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Mega Edition: Bryan Kohberger And The Order Denying His Autism Motions (9/25/26) · 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 spinning back out to Moscow, and we're
• 0:06
  Speaker 1: going to take a look at the motion in Lamine,
• 0:08
  Speaker 1: number 13, conditions as aggravator. And this has to do
• 0:13
  Speaker 1: with the claims that Brian Kohlberger has autism. Case number CR01-24-31665.
• 0:19
  Speaker 1: State of Idaho plaintiff versus Brian C. Kohlberger, the defendant.
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  Speaker 1: Comes now. Brian C. Koberger by and through his attorneys
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  Speaker 1: of record and hereby moves this court for an order
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  Speaker 1: preventing the state from using Mr. Koberger's mental health diagnosis
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  Speaker 1: of autism and the characteristics of his autism as evidence
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  Speaker 1: in its case. This motion is meant to protect Mr.
• 0:45
  Speaker 1: Koberger's 5th, 6th, and 14th Amendment rights under the United
• 0:49
  Speaker 1: States Constitution and Article 1, Section 6 and 13 of
• 0:53
  Speaker 1: the Idaho Constitution. Mr. Kohlberger has a diagnosis of autism
• 0:58
  Speaker 1: and he displays characteristics consistent with autism. A comprehensive neuropsychological
• 1:03
  Speaker 1: evaluation of Mr. Kohlberger conducted by Dr. Rachel Orr. ABPP-CN
• 1:10
  Speaker 1: found that Mr. Kohlberger continues to exhibit all the core
• 1:14
  Speaker 1: diagnostic features of ASD currently with significant impact on his
• 1:18
  Speaker 1: daily life. See Exhibit 1. Report Page 17. Mr. Kohlberger
• 1:25
  Speaker 1: shares characteristics such as social challenges, and these characteristics are
• 1:29
  Speaker 1: noted by those unfamiliar with autism as not picking up
• 1:33
  Speaker 1: on social cues. In evaluating Mr. Kohlberger, Dr. Orr found
• 1:37
  Speaker 1: that he has displayed lifelong deficits in social-emotional reciprocity, including
• 1:43
  Speaker 1: limited perspective-taking and limited sharing of affect emotions of others.
• 1:48
  Speaker 1: Example at 16. Because of his autism, others may see
• 1:52
  Speaker 1: Brian as not recognizing social cues, continuing to talk to
• 1:56
  Speaker 1: others when the conversation would naturally end, over-focusing on a
• 2:00
  Speaker 1: topic or hobby of interest, or talking about the same
• 2:03
  Speaker 1: topic repeatedly, using complicated vocabulary, or seemingly self-absorbed. Brian's autism
• 2:10
  Speaker 1: is also accompanied by obsessive compulsiveness and an eating disorder.
• 2:14
  Speaker 1: Since childhood, Mr. Koberger has exhibited compulsions around getting things
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  Speaker 1: in his eyes, handwashing, and other germ-avoidant behaviors. These characteristics
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  Speaker 1: must not be used by the prosecution as factors for
• 2:27
  Speaker 1: the jury to consider as aggravators. Evidence of mental illness
• 2:31
  Speaker 1: in capital case litigation is mitigation evidence. The United States
• 2:35
  Speaker 1: Supreme Court and the Idaho Supreme Court recognized evidence of
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  Speaker 1: a defendant's mental illness as mitigating. State v. Payne, 146, Idaho, 548, 569,
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  Speaker 1: and 70, 199, page 3.d, 123, 144, and 45, 2008.
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  Speaker 1: Holding that mental health evidence is relevant to mitigation, even
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  Speaker 1: where there is no nexus between the defendant's mental health
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  Speaker 1: and the crimes. State v. Card, 121, Idaho, 425, 439, 825, P. 2D, 1081, 1095, 1991.
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  Speaker 1: It's clear that a mental defect may diminish an individual's
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  Speaker 1: culpability for a criminal act. And Penry v. Linau, 492 U.S.
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  Speaker 1: 302 319 1989 Acknowledging the belief long held by the
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  Speaker 1: society that defendants who commit criminal acts that are attributable
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  Speaker 1: to disadvantaged backgrounds or to emotional and mental problems may
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  Speaker 1: be less culpable than defendants who have no excuse. Quoting
• 3:36
  Speaker 1: California v. Brown 479 U.S. 1987 O'Connor J. Concurring Mr.
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  Speaker 1: Kohlberger's autism is mitigation evidence. It's inappropriate for the prosecution
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  Speaker 1: to wrap mitigating evidence into an aggravator. In Roper v. Simmons,
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  Speaker 1: the Supreme Court noted with disapproval that the prosecutor had
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  Speaker 1: argued that mitigating evidence of the defendant's youth should actually
• 3:59
  Speaker 1: be considered as an aggravator. The court suggested that a
• 4:03
  Speaker 1: rule prohibiting such conduct would have been warranted if not
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  Speaker 1: for the court's larger concerns, requiring that death be excluded altogether.
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  Speaker 1: In some cases, a defendant's youth may even be counted
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  Speaker 1: against him. In this very case, as we've noted above,
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  Speaker 1: the prosecutor argued Simmons' youth was aggravating rather than mitigating.
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  Speaker 1: While this sort of overreaching could be corrected by a
• 4:25
  Speaker 1: particular rule to ensure that the mitigating force of youth
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  Speaker 1: is not overlooked, that would not address our larger concerns.
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  Speaker 1: Roper v. Simmons, 543 U.S. 551, 573, 2005. Allowing the
• 4:39
  Speaker 1: state to argue that Mr. Kohlberger's mental illness is an
• 4:42
  Speaker 1: aggravating factor that violates the 8th and 14th Amendments By
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  Speaker 1: precluding the jury from giving meaningful consideration and effect to
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  Speaker 1: the mitigating evidence, Mr. Kohlberger points the court to Abdul
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  Speaker 1: Kabir v. Quarterman 550 U.S. 233-2007 for an overview of
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  Speaker 1: the court's jurisprudence on the issue, including Lockett, Eddings, and Penry,
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  Speaker 1: starting on page 246. Individualized sentencing in capital cases reflects
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  Speaker 1: the concern the court for fairness in proceedings. As such,
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  Speaker 1: Idaho is required to provide for unhindered consideration of mitigating evidence.
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  Speaker 1: See Lockett v. Ohio 438 U.S. 586-608. See also Hitchcock v.
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  Speaker 1: Duggar 481 U.S. 393-399-1987. Holding that an instruction precluding consideration
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  Speaker 1: of non-statutory mitigating circumstances is unconstitutional. Woodson v. North Carolina
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  Speaker 1: 428 U.S. 280-303-1976. Maintaining that one constitutional shortcoming of the
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  Speaker 1: North Carolina statute was its failure to allow consideration of
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  Speaker 1: relevant aspects of defendant's character. The court has defined mitigating
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  Speaker 1: factors to be any evidence that might serve as a
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  Speaker 1: basis for a sentence less than death. Skipper v. South Carolina,
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  Speaker 1: 476 U.S. 1-5, 1986 Quoting Lockett, 438 U.S. 604 Mitigating
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  Speaker 1: circumstances are not necessarily factors that lead sentencers to believe
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  Speaker 1: that a defendant is a good person despite having committed
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  Speaker 1: a horrible crime. As the Supreme Court has explained, compassionate
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  Speaker 1: or mitigating factors may stem from the diverse frailties of humankind. Woodson,
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  Speaker 1: 428 U.S. at 304. In a constitutionally fair proceeding, juries
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  Speaker 1: must be able to consider mitigation as mitigation. The 8th
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  Speaker 1: and 14th Amendments requiring that a sentence be in all
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  Speaker 1: but the rarest kind of capital case, not be precluded
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  Speaker 1: from considering, as a mitigating factor, any aspect of a
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  Speaker 1: defendant's character or record and any of the circumstances of
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  Speaker 1: the offense that the defendant proffers as a basis for
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  Speaker 1: a sentence less than death. Lockett v. Ohio 438, U.S. 586, 604, 1978,
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  Speaker 1: Plurality Opinion, Emphasis in Original Considering again Abdul-Kabir, the court
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  Speaker 1: summarized Penry as holding that, Where mitigation evidence is double-edged,
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  Speaker 1: court must give an appropriate instruction directing the jury to
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  Speaker 1: consider fully mitigating evidence as it bears on the extent
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  Speaker 1: to which the defendant is undeserving of a death sentence.
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  Speaker 1: 550 U.S. at 255, quoting Penry, 492 U.S. at 323.
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  Speaker 1: A constitutionally fair proceeding requires juries must be able to
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  Speaker 1: give effect to mitigation evidence. It is firmly established that
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  Speaker 1: sentencing juries must be able to give meaningful consideration and
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  Speaker 1: effect to all mitigation evidence that might provide a basis
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  Speaker 1: for refusing to impose the death penalty on a particular individual,
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  Speaker 1: notwithstanding the severity of his crime or his potential to
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  Speaker 1: commit similar offenses in the future. Abdul Kabir, 550 U.S.
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  Speaker 1: at 246. A statute that prevents the sentence in all
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  Speaker 1: capital cases from giving independent mitigating weight to aspects of
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  Speaker 1: the defendant's character... and record and to circumstances of the
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  Speaker 1: offense proffered in mitigation, creates the risk that the death
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  Speaker 1: penalty will be imposed in spite of factors which may
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  Speaker 1: call for a less severe penalty. When the choice is
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  Speaker 1: life and death, that risk is unacceptable and incompatible with
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  Speaker 1: the commands of the 8th and 14th Amendments. Lockett, 438 U.S.
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  Speaker 1: at 608. The sentence may determine the weight to be
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  Speaker 1: given relevant mitigating evidence of unhappy, unbringing, and emotional disturbance,
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  Speaker 1: but they may not give it no weight by excluding
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  Speaker 1: such evidence from their consideration. Allowing the state to argue
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  Speaker 1: that Mr. Kohlberger's mental health issues are actually aggravators unlawfully
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  Speaker 1: interferes with the jury's ability to give effect to that
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  Speaker 1: mitigation evidence. It's more prejudicial than if the sentencer were
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  Speaker 1: to hold or ignore or to give it no weight,
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  Speaker 1: which is prohibited by law. The state also cannot argue
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  Speaker 1: that factors which are casually related to Mr. Kohlberger's mental
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  Speaker 1: health issues should serve to aggravate the punishment, i.e. that
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  Speaker 1: they contribute to future dangerousness, propensity to kill, or contribute
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  Speaker 1: to aggravators regarding heinousness of the crime. That is functionally
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  Speaker 1: the same thing as arguing that he should be sentenced
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  Speaker 1: to death because of his mental illness, which is constitutionally impermissible.
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  Speaker 1: Georgia has not attached the aggravating label to factors that
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  Speaker 1: are constitutionally impermissible or totally irrelevant to the sentencing process,
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  Speaker 1: such as, for the example, the race, religion, or political
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  Speaker 1: affiliation of the defendant, or to conduct that actually should
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  Speaker 1: militate in favor of a lesser penalty, such as perhaps
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  Speaker 1: the defendant's mental illness, if the aggravating circumstance at issue
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  Speaker 1: in the case had been invalid for reasons such as
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  Speaker 1: these due process of law would require the jury's decision
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  Speaker 1: to impose death to be set aside. Zant v. Stevens, 462, U.S. 862, 885, 883,
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  Speaker 1: emphasis added. The court in Zant v. Stevens Court cited
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  Speaker 1: Miller v. State 373 SO. 2D 882 Florida 1979 in support
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  Speaker 1: of the proposition that an aggravating label cannot be attached
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  Speaker 1: to evidence of mental illness. Stevens 462 U.S. at 885
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  Speaker 1: Miller was a Florida Supreme Court opinion that specifically dealt
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  Speaker 1: with the problem of utilizing factors that are the result
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  Speaker 1: of a defendant's mental illness in order to aggravate a sentence.
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  Speaker 1: In Miller, the defendant was convicted of murdering a cab
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  Speaker 1: driver and raping her when she was dead or dying.
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  Speaker 1: At the sentencing hearing, the judge aggravated the defendant's penalty
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  Speaker 1: because of a finding that Miller had a propensity to
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  Speaker 1: commit violent acts. The court vacated the sentence in part
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  Speaker 1: because this propensity was casually related to the defendant's schizophrenia,
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  Speaker 1: which was characterized by hallucinations that other women were his
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  Speaker 1: hated mother. The court found it problematic to aggravate a
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  Speaker 1: defendant's penalty on the basis of the same evidence that
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  Speaker 1: argued in favor of leniency. Consequently, that the Supreme Court
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  Speaker 1: in Stevens relied on Miller's provides further indication that it
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  Speaker 1: is impermissible to treat factors casually related to mental illness
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  Speaker 1: as aggravating circumstances in capital punishment cases. allowing the state
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  Speaker 1: to argue that Mr. Kohlberger's mental health and development disabilities
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  Speaker 1: or aggravators violates the 8th and 14th Amendments by criminalizing
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  Speaker 1: his status as a disabled person. Criminalization of a person's
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  Speaker 1: mere status violates the 8th Amendment, as applied to the
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  Speaker 1: states through the 14th Amendment, City of Grants Pass, Oregon, vs. Johnson,
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  Speaker 1: 603 U.S., 520-546-2024, discussing Robinson vs. California, 370 U.S., 660 U.S., 1962.
• 12:04
  Speaker 1: In Robinson v. California, 370 U.S. 660, the U.S. Supreme
• 12:10
  Speaker 1: Court struck down California statute that criminalized narcotics addiction as
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  Speaker 1: violating the Eighth Amendment's cruel and unusual punishment clause. The
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  Speaker 1: court reasoned it is unlikely that any state at this
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  Speaker 1: moment in history would attempt to make it a criminal
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  Speaker 1: offense for a person to be mentally ill or a
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  Speaker 1: In the light of contemporary human knowledge, a law which
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  Speaker 1: made a criminal offense of such a disease would doubtless
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  Speaker 1: be universally thought to be an infliction of cruel and
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  Speaker 1: unusual punishment and violation of the Eighth and Fourteenth Amendments.
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  Speaker 1: Justice Douglas wrote in his concurrence in Robinson, We would
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  Speaker 1: forget the teachings of the Eighth Amendment if we allowed
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  Speaker 1: sickness to be made a crime and permitted sick people
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  Speaker 1: to be punished for being sick. This age of enlightenment
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  Speaker 1: cannot tolerate such barbarous action. Robinson, 370 U.S. at 678.
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  Speaker 1: The same reasoning applies here. Mr. Koberger cannot be sentenced
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  Speaker 1: to death due to his mere status as a person
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  Speaker 1: with ASD, a disability which in fact renders him less
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  Speaker 1: culpable and which should be considered by the jury only
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  Speaker 1: as mitigation. Mr. Koberger respectfully requests the court prevent the
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  Speaker 1: state from using his diagnosis of autism or any characteristic
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  Speaker 1: thereof as an aggravator if a sentencing proceeding is held.
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  Speaker 1: This document was dated... February 24th, 2025, and it was
• 13:32
  Speaker 1: signed by Ann Taylor. If you'd like to contact me,
• 13:35
  Speaker 1: you can do that at bobbycapucci at protonmail.com. That's B-O-B-B-Y-C-A-P-U-C-C-I
• 13:41
  Speaker 1: at protonmail.com. Or if you prefer, you can find me
• 13:44
  Speaker 1: on X at B-O-B-B-Y underscore C-A-P-U-C-C-I. All of the links
• 13:51
  Speaker 1: that go with this episode can be found in the
• 13:53
  Speaker 1: description box. What's up, everyone, and welcome back to the program.
• 13:56
  Speaker 1: In this episode, we're headed back up to Moscow, and
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  Speaker 1: we're going to take a look at Judge Hippler's order
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  Speaker 1: on defendant's motion to strike death penalty due to autism
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  Speaker 1: spectrum disorder. Case number CR01-24-31665. State of Idaho plaintiff, 1st
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  Speaker 1: Brian C. Kohlberger, the defendant. Introduction. Having been recently diagnosed
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  Speaker 1: with autism spectrum disorder by a clinical neuropsychologist retained by
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  Speaker 1: his defense team, defendant seeks to strike the death penalty
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  Speaker 1: as a sentencing option, arguing it violates his constitutional rights.
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  Speaker 1: He contends ASD is the functional equivalent of an intellectual disability,
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  Speaker 1: which is categorically recognized as a qualifying exemption to the
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  Speaker 1: death penalty. Even if the court rejects a categorical approach,
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  Speaker 1: he argues the death penalty option should nevertheless be stricken
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  Speaker 1: in his case, given the intense media attention on the
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  Speaker 1: defendant's disability. In response, the state disputes that the ASD
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  Speaker 1: is equivalent to an intellectual disability for purposes of categorical
• 14:57
  Speaker 1: exemption to the death penalty and further notes that defendant
• 15:01
  Speaker 1: has not shown a national consensus supporting such an exemption.
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  Speaker 1: As for defendant's individualized argument, the state contends that none
• 15:08
  Speaker 1: of defendant's concerns warrant striking the death penalty. Oral argument
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  Speaker 1: on the motion was held on April 9th, 2025, after
• 15:16
  Speaker 1: which the court took the matter under advisement, the court
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  Speaker 1: finds striking the death penalty is not warranted. 2. Standard.
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  Speaker 1: Constitutional issues, including the constitutionality of Idaho's capital sentencing scheme,
• 15:29
  Speaker 1: are questions of law. Rhodes v. State, 149, Idaho, 2010. Facts.
• 15:35
  Speaker 1: During the course of this case, the defense team retained Dr.
• 15:38
  Speaker 1: Rachel Orr, a clinical neuropsychologist. to conduct a comprehensive neuropsychological
• 15:43
  Speaker 1: evaluation of defendant and issue a report. As part of
• 15:47
  Speaker 1: this evaluation, Dr. Orr interviewed the defendant, defendant's immediate family members,
• 15:52
  Speaker 1: and other relevant adults from defendant's childhood, including former teachers.
• 15:57
  Speaker 1: She gathered information on defendant's history, made behavioral observations, and
• 16:01
  Speaker 1: administered cognitive tests. Based on her evaluation, Dr. Orr diagnosed
• 16:06
  Speaker 1: defendant with autism spectrum disorder 1 without accompanying language impairment
• 16:12
  Speaker 1: According to Dr. Orr, ASD is a complex, heterogeneous, neurodevelopmental
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  Speaker 1: disorder rooted in brain differences and characterized by social and
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  Speaker 1: behavioral features. It causes deficits in which affected individuals perceived
• 16:25
  Speaker 1: and react to others and their environment, causing problems in
• 16:29
  Speaker 1: social communication and interactions, repetitive behaviors, and narrow range of interests.
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  Speaker 1: There is a wide range of autism symptoms and severity
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  Speaker 1: associated Deficits can include a restricted range of effect, atypical
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  Speaker 1: eye contact, displaying facial expressions or movements that do not
• 16:45
  Speaker 1: match what is being said, failure to consider social cues,
• 16:48
  Speaker 1: having trouble with speech reciprocity, and repetitive behaviors. Pursuant to
• 16:53
  Speaker 1: the American Psychiatric Association's Diagnostic and Statistical Manual 5th Edition,
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  Speaker 1: there are two primary diagnostic criteria for ASD. 1. social
• 17:04
  Speaker 1: and emotional reciprocity, nonverbal communicative behaviors used for social interactions, developing, maintaining,
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  Speaker 1: and understanding relationships. The second criterion is a display of
• 17:15
  Speaker 1: restrictive repetitive patterns of behavior, interests, of activities as manifested
• 17:20
  Speaker 1: by at least two of the following. 1. Stereotyped or
• 17:23
  Speaker 1: repetitive movements, use of objects or speech. 2. Insistence on sameness,
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  Speaker 1: inflexible adherence to routines or ritualized patterns of verbal or
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  Speaker 1: nonverbal behavior. 3. Highly restricted, fixated interests that are abnormal
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  Speaker 1: in intensity or focus. 4. Hyper or hyporeactive to sensory input.
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  Speaker 1: or unusual interest in sensory aspects of the environment. The
• 17:47
  Speaker 1: severity of the ASD is based on these two criteria.
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  Speaker 1: There are three levels of severity which correlate to how
• 17:53
  Speaker 1: much support is needed. Level 3, which is the most severe,
• 17:57
  Speaker 1: requires very substantial support. Level 1, the least severe, requires
• 18:01
  Speaker 1: merely support. As to the first criterion Dr. Orr noted
• 18:05
  Speaker 1: in her report, that defendant's family and peers reported that
• 18:08
  Speaker 1: defendant displayed atypicalities, and difficulties in social settings dating back
• 18:13
  Speaker 1: to early childhood, including 1. inability to adjust his behavior
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  Speaker 1: to suit the social context, 2. poor social reciprocity in conversation, 3.
• 18:23
  Speaker 1: issues with nonverbal behavior like personal space, and 4. limited
• 18:28
  Speaker 1: ability to take perspectives of others. She notes that these
• 18:31
  Speaker 1: difficulties played a role in eventual termination of his funding
• 18:35
  Speaker 1: for his graduate program. At the time of his arrest,
• 18:38
  Speaker 1: he was pursuing a Ph.D. in criminal justice and criminology
• 18:42
  Speaker 1: at Washington State University. In her personal evaluation of defendant, Dr.
• 18:46
  Speaker 1: Orr observed that defendant demonstrated some typical social behaviors such
• 18:51
  Speaker 1: as fairly consistent, though intense eye contact, polite demeanor, and
• 18:55
  Speaker 1: social conventions, e.g. shaking hands upon greeting. He engaged in
• 18:59
  Speaker 1: conversation and was never overtly inappropriate. However, Dr. Orr also
• 19:04
  Speaker 1: noted social behavior consistent whether reported by others, such as
• 19:08
  Speaker 1: lack of fluidity in his verbal interactions, awkward comments, or
• 19:12
  Speaker 1: abrupt responses. Inconsistent understanding, acknowledgement of humor, and occasional intense gaze.
• 19:19
  Speaker 1: She noted he had poor reciprocity of interaction, including very
• 19:23
  Speaker 1: frequent refocus of conversation back on his own experiences or
• 19:28
  Speaker 1: unusual responses to my sharing. She also noted his lack
• 19:32
  Speaker 1: of close friends and his poor insight into his role
• 19:35
  Speaker 1: in relationships. Dr. Orr further observes deficits in defendants' nonverbal communication,
• 19:41
  Speaker 1: noting poor integration of verbalization and eye contact, limited use
• 19:46
  Speaker 1: of descriptive gestures, restricted range of effect, atypical tone. As
• 19:50
  Speaker 1: to his speech, Dr. Orr observed that defendant was generally
• 19:53
  Speaker 1: clearly articulated and his speech was appropriate in rate and volume,
• 19:58
  Speaker 1: but overall monotone. His language was generally appropriate in content
• 20:02
  Speaker 1: and form and with an extensive vocabulary. but overly formal,
• 20:07
  Speaker 1: often over-inclusive, and disorganized and highly repetitive, with frequent scripted phases.
• 20:13
  Speaker 1: By the way of example, Dr. Orr noted that defendant
• 20:16
  Speaker 1: often used phrases, objectively speaking, mind you to be fair,
• 20:20
  Speaker 1: and moral of the story. As to the second, Criterium, Dr.
• 20:24
  Speaker 1: Orr found defendant exhibited all four of the behaviors. He
• 20:28
  Speaker 1: engaged in occasional subtle rocking of his upper torso while seated,
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  Speaker 1: and scripted, and repetitive language, He appeared fixated on the
• 20:35
  Speaker 1: routine or timing of breaks and procedures during the examination.
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  Speaker 1: He was also rigid in his thinking and his behavior,
• 20:44
  Speaker 1: preservative ideation, wanting to know the results of his testing,
• 20:48
  Speaker 1: and was highly interested in circumscribed topics such as forensic psychology,
• 20:52
  Speaker 1: intellectual topics, and Murakami. She also noted he was highly
• 20:57
  Speaker 1: distracted by sounds or activity occurring around him and frequently
• 21:00
  Speaker 1: looked from side to side to monitor his periphery. As
• 21:04
  Speaker 1: a result of being easily distracted, he needed instructions repeated
• 21:08
  Speaker 1: to him. Defendant's neuropsychological profile revealed a high average intellect
• 21:13
  Speaker 1: at baseline, and his full-scale ID score was 119, which
• 21:17
  Speaker 1: is the 90th percentile for his age. Cognitively, Defendant showed
• 21:22
  Speaker 1: strong verbal abilities, abstract reasoning, memory, concept formation, and reading skills. However,
• 21:29
  Speaker 1: he displayed weakness in executive functioning, such as planning, cognitive flexibility,
• 21:34
  Speaker 1: impulse control, and organizational approach. He tended to perceive information
• 21:39
  Speaker 1: in a piecemeal manner rather than look at the whole picture. Ultimately, Dr.
• 21:43
  Speaker 1: Orr found defendant was clearly neurodivergent individual manifesting all the
• 21:48
  Speaker 1: social and behavioral features of ASD. As noted, defendant was
• 21:52
  Speaker 1: assigned a level 1 diagnosis with intellectual impairment, which is
• 21:56
  Speaker 1: the least severe level. Dr. Eileen Ryan, a board-certified psychiatrist
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  Speaker 1: retained by the defense team, agreed with Dr. Orr's ASD
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  Speaker 1: diagnosis after conducting a comprehensive forensic psychiatric examination of defendant.
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  Speaker 1: Of note, she observed that defendant is highly intelligent and
• 22:14
  Speaker 1: has a factual understanding of the proceedings against him, the
• 22:17
  Speaker 1: penalty is possibly facing, pleas, and the roles of the
• 22:20
  Speaker 1: courtroom personnel, etc. She further noted that there was no
• 22:24
  Speaker 1: evidence of a formal thought disorder or thought disorganization. analysis.
• 22:29
  Speaker 1: Relying on the 5th, 6th, 8th, and 14th Amendment to
• 22:32
  Speaker 1: the United States Constitution and Article 1, Section 1, 2, 6, 7,
• 22:37
  Speaker 1: and 13 of the Idaho Constitution, defendant seeks to have
• 22:41
  Speaker 1: individuals diagnosed with ASD categorically exempt from the death penalty.
• 22:45
  Speaker 1: He contends a categorical exemption is warranted for individuals with
• 22:49
  Speaker 1: ASD because 1. they are insufficiently culpable and execution would
• 22:54
  Speaker 1: not satisfy the retributive and deterrent purposes of capital punishment.
• 22:59
  Speaker 1: Execution of individuals with ASD is contrary to the evolving
• 23:03
  Speaker 1: standards of decency. And three, death sentences for individuals with
• 23:07
  Speaker 1: ASD are inherently unreliable due to their inability to present
• 23:11
  Speaker 1: meaningful mitigation evidence. Alternatively, he argues removal of the death
• 23:16
  Speaker 1: penalty as a sentencing option in his case is warranted
• 23:19
  Speaker 1: due to the impact his ASD will have on his
• 23:22
  Speaker 1: ability to present meaningful defense, particularly given the intense media
• 23:26
  Speaker 1: attention on his disability. A. Categorical exemption from capital punishment
• 23:32
  Speaker 1: for individuals with ASD is not warranted. The Eighth Amendment
• 23:35
  Speaker 1: provides excessive bail shall not be required, nor excessive fines imposed,
• 23:39
  Speaker 1: nor cruel or unusual punishments inflicted. At issue here is
• 23:43
  Speaker 1: the first category. In Atkins, the court held that mentally retarded,
• 23:47
  Speaker 1: now intellectually disabled, must be categorically exempt from execution after
• 23:52
  Speaker 1: finding that cognitive and behavior deficiencies that drive an intellectual
• 23:56
  Speaker 1: disability diagnosis negate the peniological purpose served by the death
• 24:00
  Speaker 1: penalty and give rise to a special risk that the
• 24:02
  Speaker 1: death penalty will be wrongfully imposed. In addition, the court
• 24:06
  Speaker 1: found that the categorical exemption was consistent with society's contemporary
• 24:10
  Speaker 1: standards of decency. No court has ever found ASD to
• 24:14
  Speaker 1: be categorically death-disqualifying diagnosis. However, defendant argues ASD is the
• 24:19
  Speaker 1: functional equivalent of an intellectual disability and therefore the rationale
• 24:24
  Speaker 1: underpinning Atkins applies with equal force to individuals with ASD.
• 24:28
  Speaker 1: He further argues that categorically excluding individuals with ASD from
• 24:33
  Speaker 1: capital punishment is consistent with society's prevailing standards of decency.
• 24:37
  Speaker 1: The state responds that a categorical exemption from the death
• 24:40
  Speaker 1: penalty is only available under the law to those with
• 24:43
  Speaker 1: intellectual disabilities, the definition of which ASD fails to satisfy.
• 24:48
  Speaker 1: It further disputes that there is any national consensus supporting
• 24:52
  Speaker 1: defendant's claim. The state is correct. First, intellectual impairment. A
• 24:56
  Speaker 1: hallmark of intellectual disability is not present in the diagnostic
• 25:00
  Speaker 1: criteria of ASD, and no court has ever found the
• 25:03
  Speaker 1: two to be equivalent. Second, defendant has not presented any
• 25:07
  Speaker 1: evidence of national consensus as to whether the death penalty
• 25:11
  Speaker 1: is disproportionate punishment for an individual with ASD. All right,
• 25:15
  Speaker 1: we're going to wrap up right here, and in the
• 25:17
  Speaker 1: next episode, we're going to pick up with part two.
• 25:19
  Speaker 1: All of the information that goes with this episode can
• 25:21
  Speaker 1: be found in the description box. What's up, everyone, and
• 25:25
  Speaker 1: welcome back to the program. In this episode, we're going
• 25:27
  Speaker 1: to get right back to Judge Hipler's order on Brian
• 25:30
  Speaker 1: Koberger's motion to strike the death penalty due to Brian
• 25:33
  Speaker 1: Koberger's autism diagnosis. 1. ASD is not equivalent to an
• 25:37
  Speaker 1: intellectual disability for purposes of the death penalty exemption. Capital
• 25:43
  Speaker 1: punishment must be limited to those offenders who commit a
• 25:46
  Speaker 1: narrow category of the most serious crimes and whose extreme
• 25:50
  Speaker 1: culpability makes them the most deserving of execution. Atkins 536 U.S.
• 25:54
  Speaker 1: 319 In considering whether intellectually disabled persons are categorically less
• 26:00
  Speaker 1: culpable than the average criminal, the Atkins Court relied on
• 26:04
  Speaker 1: clinical definitions of an intellectual disability offered by the American
• 26:08
  Speaker 1: Association on Mental Retardation and the American Psychiatric Association. Both
• 26:14
  Speaker 1: define the condition based on the presence of two criteria, one,
• 26:18
  Speaker 1: sub-average intellectual function, and two, significant limitations in adaptive skills
• 26:23
  Speaker 1: manifesting prior to age 18. Based on this criteria, The
• 26:27
  Speaker 1: court found the intellectually disabled were categorically less culpable for
• 26:31
  Speaker 1: their crimes, noting, Mentally retarded persons frequently know the difference
• 26:35
  Speaker 1: between right and wrong and are competent to stand trial
• 26:37
  Speaker 1: because of their impairments, however. By definition, they have diminished
• 26:57
  Speaker 1: capacities to understand and process information, to communicate, to abstract
• 27:02
  Speaker 1: from mistakes and learn from experience, to engage in logical reasoning,
• 27:07
  Speaker 1: to control impulses, and to understand the reactions of others.
• 27:11
  Speaker 1: There is no evidence that they are more likely to
• 27:13
  Speaker 1: engage in criminal conduct than others, but there is abundant
• 27:16
  Speaker 1: evidence that they often act on impulse rather than pursuant
• 27:20
  Speaker 1: to premeditated plan, and that in group settings, they are
• 27:24
  Speaker 1: followers rather than leaders. Based on these deficiencies, the court
• 27:28
  Speaker 1: found two independent reasons to categorically exclude the intellectually disabled
• 27:32
  Speaker 1: from the death penalty, both of which the court found
• 27:34
  Speaker 1: were consistent with the legislative consensus that mentally retarded should
• 27:38
  Speaker 1: be categorically excluded from execution. First, the reduced capability of
• 27:42
  Speaker 1: the intellectually disabled undermined the twin justifications underpinning the death penalty, retribution,
• 27:48
  Speaker 1: and deterrence of capital crimes. As to retribution, the court
• 27:52
  Speaker 1: reasoned that if the culpability of the average murderer is
• 27:55
  Speaker 1: insufficient to justify the imposition of death, the lesser culpability
• 27:59
  Speaker 1: of the mentally retarded offender surely does not merit that
• 28:02
  Speaker 1: form of retribution. As to deterrence, the court reasoned that
• 28:06
  Speaker 1: the same cognitive and behavioral impairments that render mentally disabled
• 28:10
  Speaker 1: offenders less culpable also render them less likely to appreciate
• 28:14
  Speaker 1: the consequences of their conduct and control their behavior. Second,
• 28:18
  Speaker 1: the court found that the reduced capability... of intellectually disabled
• 28:21
  Speaker 1: offenders gave risk to an unacceptable risk that the death
• 28:24
  Speaker 1: penalty could not reliably be imposed. Namely, the court found
• 28:29
  Speaker 1: that the aggregate intellectually disabled offenders faced a special risk
• 28:32
  Speaker 1: of wrongful execution because they 1. are more susceptible to
• 28:36
  Speaker 1: false confessions 2. less able to make a persuasive showing
• 28:40
  Speaker 1: of mitigation in the face of prosecutorial evidence of one
• 28:44
  Speaker 1: or more aggravating factors 3. may be less able to
• 28:48
  Speaker 1: give meaningful assistance to their counsel. 4. are typically poor witnesses,
• 28:52
  Speaker 1: and 5. their demeanor may create an unwarranted impression of
• 28:56
  Speaker 1: lack of remorse for their crimes. Further, the court found
• 29:00
  Speaker 1: that reliance on mental retardation as a mitigating factor can
• 29:03
  Speaker 1: be a two-edged sword that may enhance the likelihood that
• 29:06
  Speaker 1: the aggravating factor of future dangerousness will be found by
• 29:09
  Speaker 1: the jury. Relying on the diagnostic criteria set forth in
• 29:14
  Speaker 1: the DSM for various publications in Dr. Orr's evaluative report,
• 29:19
  Speaker 1: defendant argues that individuals with ASD, himself included, exhibit similar
• 29:24
  Speaker 1: adaptive impairments to those with an intellectual disability and, consequently,
• 29:29
  Speaker 1: the same justifications underlying the Atkins exemption should apply to
• 29:33
  Speaker 1: defendants with ASD. This is an apples to oranges comparison, however.
• 29:38
  Speaker 1: While intellectually disabled and ASD individuals may share some of
• 29:42
  Speaker 1: the same adaptive impairments, the intellectual deficit and essential feature
• 29:47
  Speaker 1: of an intellectual disability is not a diagnostic element of ASD.
• 29:52
  Speaker 1: As noted in Atkins, an intellectual disability is based on
• 29:55
  Speaker 1: deficits in both intellectual function and adaptive function. See U.S.
• 30:01
  Speaker 1: 536 at 318. See also Hall v. Florida 572, 2014.
• 30:08
  Speaker 1: Noting that the defining characteristic of an intellectual disability in
• 30:11
  Speaker 1: the medical community is the existence of concurrent deficits and
• 30:15
  Speaker 1: intellectual and adaptive functioning. While Atkins did not set out
• 30:20
  Speaker 1: a comprehensive definition of an intellectual deficit, it did provide
• 30:24
  Speaker 1: guidance that noting that prevailing medical authorities required significantly sub-average
• 30:29
  Speaker 1: intellectual functioning. 536 U.S. at 308. To this end, the
• 30:34
  Speaker 1: court noted that the medical community typically considered the cutoff
• 30:38
  Speaker 1: IQ score of the intellectual functioning prong of the mental
• 30:41
  Speaker 1: retardation definition to be between 70 and 75 and lower.
• 30:45
  Speaker 1: Idea 308 and 5. Under Atkins and its progeny, It
• 30:51
  Speaker 1: is the intersection of intellectual and adaptive deficits that render
• 30:55
  Speaker 1: an individual with an intellectual disability less morally culpable for
• 30:59
  Speaker 1: the purposes of death penalty disqualification. As recognized by the
• 31:04
  Speaker 1: Idaho Supreme Court, adaptive deficits alone will not render a
• 31:08
  Speaker 1: defendant mentally incapacitated for purposes of the exemption. Pizzuto v. State,
• 31:13
  Speaker 1: 146 Idaho, 2008 Significant limitations in adaptive functioning alone will
• 31:19
  Speaker 1: not bring an offender with the protection of IC Section 182515A.
• 31:25
  Speaker 1: Substantial intellectual deficits are required. Intellectual deficiency, however, is not
• 31:31
  Speaker 1: among the diagnostic criteria for ASD. See DSM-5. While individuals
• 31:37
  Speaker 1: with ASD may share some of the adaptive deficits as
• 31:40
  Speaker 1: those with an Atkins qualifying intellectual disability, the essential feature, i.e.
• 31:46
  Speaker 1: intellectual disability, is lacking. That is not to say that
• 31:50
  Speaker 1: individuals with ASD cannot also suffer from intellectual deficiencies. Indeed, Dr.
• 31:56
  Speaker 1: Ryan noted in her report that an estimated that 50%
• 31:59
  Speaker 1: of individuals with ASD have a degree of intellectual disability.
• 32:04
  Speaker 1: Ryan Report, page 31. However, it is not necessary to
• 32:09
  Speaker 1: diagnose of ASD and therefore cannot be equated to a
• 32:12
  Speaker 1: mental disability for purposes of Atkins. In fact, in the
• 32:16
  Speaker 1: United States v. Roof, The Fourth Circuit declined to apply
• 32:19
  Speaker 1: Atkins to a defendant with ASD who had an IQ
• 32:22
  Speaker 1: of 125, noting that his limitations and adaptive skills alone
• 32:27
  Speaker 1: are insufficient to render him intellectually disabled. U.S. v. Roof,
• 32:31
  Speaker 1: Fourth Circuit, 2021. With an IQ of 119, defendant likewise
• 32:36
  Speaker 1: fails to qualify. Further, even if adaptive deficits alone could
• 32:39
  Speaker 1: give rise to a categorical exemption, defendant has presented no
• 32:43
  Speaker 1: authority that the adaptive deficits of ASD have the equivalent
• 32:47
  Speaker 1: effect on culpability or on the ability to make persuasive
• 32:51
  Speaker 1: showing of mitigation as does an intellectual disability. He dedicates
• 32:56
  Speaker 1: a large portion of his briefing to describing how individuals
• 32:59
  Speaker 1: with ASD, like those who are intellectually disabled, struggle to
• 33:03
  Speaker 1: present meaningful mitigation evidence due to their adaptive deficits. He
• 33:08
  Speaker 1: contends they are less able to meaningfully assist counsel due
• 33:11
  Speaker 1: to social and communication deficits and their tendency to focus
• 33:15
  Speaker 1: on specifics rather than the whole picture. He argues that
• 33:19
  Speaker 1: the flat effect and other physical manifestations of ASD can
• 33:23
  Speaker 1: create an unwarranted impression of lack of remorse and further
• 33:27
  Speaker 1: awkward speech and distractibility render individuals with ASD poor witnesses.
• 33:33
  Speaker 1: He contends that evidence of ASD is double-edged because it
• 33:36
  Speaker 1: will likely be perceived by the jury as aggravating rather
• 33:40
  Speaker 1: than mitigating. However, to even be considered for categorical exemption
• 33:45
  Speaker 1: from the death penalty, Based on these adaptive impairments alone,
• 33:48
  Speaker 1: defendant would at a minimum have to demonstrate that, considered
• 33:52
  Speaker 1: as a whole, individuals with ASD suffer from these same
• 33:56
  Speaker 1: or similar impairments that render them more susceptible to false
• 33:59
  Speaker 1: confessions and diminish their ability to assist in their defense.
• 34:04
  Speaker 1: Atkins 536, 320, and 21. Noting that intellectually disabled individuals
• 34:10
  Speaker 1: in the aggregate face a special risk of wrongful execution
• 34:14
  Speaker 1: due to their deficits. As the defendant's authorities point out, however,
• 34:18
  Speaker 1: the presentation and symptomology of ASD vary widely. Colleen M. Barriessa,
• 34:24
  Speaker 1: Defendants with Autism Spectrum Disorder in Criminal Court. 841-842-2021. Indeed,
• 34:32
  Speaker 1: as its name implies, it is on a spectrum. Some
• 34:36
  Speaker 1: may suffer from adaptive deficiencies to a degree where it
• 34:39
  Speaker 1: interferes with the presentation of mitigation evidence, and some may not.
• 34:43
  Speaker 1: Ryan Report at 31. Noting the wide range of autistic
• 34:47
  Speaker 1: symptoms and severity, the lack of any uniform presentation which
• 34:51
  Speaker 1: can be measured on an objective scale like IQ, youth,
• 34:54
  Speaker 1: and competency renders ASD inapt for categorical exemption. Further, courts
• 35:01
  Speaker 1: that have considered whether to extend Atkins to mental health
• 35:04
  Speaker 1: disorders similar to ASD have uniformly declined to do so.
• 35:09
  Speaker 1: For example, fetal alcohol spectrum disorder, which is a group
• 35:13
  Speaker 1: of conditions that that can occur in a person exposed
• 35:16
  Speaker 1: to alcohol before birth, is characterized by many of the
• 35:19
  Speaker 1: same behavioral issues and learning challenges that mark an ASD diagnosis.
• 35:25
  Speaker 1: Reasoning that FSAD cannot be medically equated to an intellectual disability,
• 35:30
  Speaker 1: courts have found that the justifications for exempting individuals with
• 35:34
  Speaker 1: intellectual disabilities from the death penalty do not apply to
• 35:38
  Speaker 1: individuals with FASD. See Solis 938, 5th Circuit, 2019. Inmate
• 35:45
  Speaker 1: fell to show that FASD, the functional equivalent of an
• 35:48
  Speaker 1: intellectual disability as defined in Atkins, United States v. Fell, 2016, Vermont, 2016.
• 35:57
  Speaker 1: Fell has not shown that all persons with FASD have
• 36:01
  Speaker 1: cognitive and behavioral impairments that result in the same or
• 36:04
  Speaker 1: equivalent diminishment in moral culpability, ability to be deterred, and
• 36:09
  Speaker 1: capacity to assist in their defense as individuals with intellectual disability. Likewise, courts,
• 36:16
  Speaker 1: including the Idaho Supreme Court, have squarely refused to extend
• 36:19
  Speaker 1: Atkins to severe mental illness, such as schizophrenia, bipolar disorder,
• 36:24
  Speaker 1: and antisocial personality disorder. State v. Dunlap, 155, 2013. Declining
• 36:30
  Speaker 1: to extend Atkins to categorically prohibit execution of the mentally ill,
• 36:34
  Speaker 1: joining every court to have considered the issue and collecting cases.
• 36:38
  Speaker 1: State v. Hall, 163, 2018. Reaffirming Dunlap and finding defendants'
• 36:44
  Speaker 1: mental illness... did not prevent imposition of capital sentence. If
• 36:49
  Speaker 1: courts are uniformly unwilling to extend Atkins to severe mental illness,
• 36:53
  Speaker 1: which can be at least equally as adaptively debilitating as ASD,
• 36:58
  Speaker 1: an extension for ASD is unavailing. In sum, defendant has
• 37:01
  Speaker 1: not demonstrated, nor has any court held, that persons with
• 37:05
  Speaker 1: ASD have similar cognitive and behavioral deficiencies that result in
• 37:10
  Speaker 1: an equivalent diminishment of culpability, ability to be deterred, and
• 37:14
  Speaker 1: capacity to assist in their defense as individuals with intellectual disability.
• 37:19
  Speaker 1: While they may share some similar adaptive deficiencies, defendant has
• 37:23
  Speaker 1: not demonstrated how this alone establishes equivalence for Eighth Amendment purposes. 2.
• 37:29
  Speaker 1: Defendant has not established a national consensus against execution of
• 37:33
  Speaker 1: individuals with ASD. For Eighth Amendment purposes, cruel and unusual
• 37:37
  Speaker 1: punishment is defined by evolving standards of decency that mark
• 37:41
  Speaker 1: the progress of a maturing society. Dunlap, 155. At 35
• 37:46
  Speaker 1: and 36, quoting Atkins, 536 U.S., ascertaining the standards of
• 37:51
  Speaker 1: decency require consideration of society's standards as expressed in legislative
• 37:56
  Speaker 1: enactments and state practice to determine whether there is a
• 37:59
  Speaker 1: national consensus against the sentencing practice at issue. Graham v. Florida,
• 38:04
  Speaker 1: 560 U.S., 48, 61, 2010. In Atkins, for example, the
• 38:06
  Speaker 1: court found that two independent reasons for categorically excluding the
• 38:14
  Speaker 1: intellectually disabled from the death penalty were consistent with the
• 38:17
  Speaker 1: legislative consensus that the mentally retarded should be categorically excluded
• 38:22
  Speaker 1: from execution. Defendant argues categorically excluding individuals with ASD from
• 38:27
  Speaker 1: capital punishment is consistent with society's prevailing standards of decency.
• 38:31
  Speaker 1: He notes that the psychological community's understanding of manifestations of
• 38:36
  Speaker 1: ASD has significantly evolved over the bringing with it a
• 38:41
  Speaker 1: marked explosion in both ASD diagnosis and increased societal awareness.
• 38:46
  Speaker 1: He points out that this growing awareness of ASD has
• 38:49
  Speaker 1: coincided with efforts by the criminal legal system to address
• 38:53
  Speaker 1: mental health disorders through the creation of mental health courts.
• 38:57
  Speaker 1: He further notes that evidence of ASD has been held
• 39:01
  Speaker 1: to be relevant in criminal cases to issues of intent.
• 39:05
  Speaker 1: As for legislative enactments, he points to two states, Ohio
• 39:09
  Speaker 1: and Kentucky, which recently enacted legislation barring people with serious
• 39:13
  Speaker 1: mental illness from being sentenced to death. At best, this
• 39:17
  Speaker 1: evidence demonstrates a growing societal sensitivity to mental disorders generally. However,
• 39:23
  Speaker 1: evidence of evolving standards of decency must come from legislative
• 39:27
  Speaker 1: and executive actions. Two states protest. individuals with severe mental
• 39:31
  Speaker 1: illness from execution is not a national consensus. Further, these
• 39:37
  Speaker 1: two statutes only apply to schizophrenia, schizoaffective disorder, bipolar disorder,
• 39:42
  Speaker 1: and delusional disorder, not ASD. Moreover, courts, including the Idaho
• 39:47
  Speaker 1: Supreme Court, continue to reject the notion of a national
• 39:50
  Speaker 1: consensus in the context of mental illness, noting that there
• 39:54
  Speaker 1: has been no change in the national consensus refusing to
• 39:57
  Speaker 1: extend Atkins to the mentally ill, observing that there is
• 40:01
  Speaker 1: no evidence that a national consensus is formed against the
• 40:04
  Speaker 1: imposition of the death penalty for the mentally ill, perhaps
• 40:08
  Speaker 1: recognizing the lack of legislative acts in support of his argument,
• 40:12
  Speaker 1: defendant attempts to show a national consensus against executing individuals
• 40:17
  Speaker 1: with ASD, through a handful of court decisions, finding the
• 40:21
  Speaker 1: diagnosis to be of evidentiary value. None of these, however,
• 40:25
  Speaker 1: are capital cases. He also cites to recent media attention
• 40:29
  Speaker 1: on a Texas capital case against Robert Roberson, an autistic
• 40:33
  Speaker 1: man who was convicted of killing his baby on a
• 40:35
  Speaker 1: theory of shaken baby syndrome. Mr. Roberson is seeking to
• 40:39
  Speaker 1: commute his death sentence based in part on the argument
• 40:42
  Speaker 1: that his ASD contributed to his conviction. see Robert Leslie
• 40:46
  Speaker 1: Robertson III petition for communion of death sentence to a
• 40:50
  Speaker 1: lesser penalty, or in the alternative, a 180-day reprieve and
• 40:54
  Speaker 1: request for an interview and hearing on the matter. Defendant
• 40:57
  Speaker 1: notes that a group of 84 Texas legislators recommended clemency
• 41:02
  Speaker 1: for Mr. Roberson. However, what defendant fails to mention is
• 41:06
  Speaker 1: these legislators did not recommend clemency due to his autism,
• 41:09
  Speaker 1: but because of significant scientific and medical evidence now shows
• 41:13
  Speaker 1: that his daughter, Nikki, who was chronically ill, died of
• 41:16
  Speaker 1: a combination of natural and accidental causes, not the debunked
• 41:20
  Speaker 1: shaken baby syndrome hypothesis the state used to convict him.
• 41:24
  Speaker 1: In sum, not only has defendant failed to show that
• 41:26
  Speaker 1: ASD is equivalent to an intellectual disability for death penalty
• 41:30
  Speaker 1: exemption purposes, he has not shown there is a national
• 41:33
  Speaker 1: consensus against subjecting individuals with ASD to capital punishment. ASD
• 41:39
  Speaker 1: may be a mitigating factor to be weighed against the
• 41:41
  Speaker 1: aggravating factors in determining whether If a defendant should receive
• 41:45
  Speaker 1: the death penalty, but it is not a death penalty disqualifier, B.
• 41:49
  Speaker 1: Case-specific factors do not warrant defendant's exemption from capital punishment.
• 41:55
  Speaker 1: Defendant alternatively argues that he should be exempt from the
• 41:58
  Speaker 1: death penalty because the intense media scrutiny on his ASD
• 42:02
  Speaker 1: undermines his ability to present a meaningful defense and renders
• 42:05
  Speaker 1: it impossible for him to receive a fair individualized sentencing determination.
• 42:10
  Speaker 1: He points out that news sources have focused on his
• 42:12
  Speaker 1: social deficits, including his past interactions with females, his deadpan look,
• 42:17
  Speaker 1: robot-like walk, cold iciness, rigid posture, and lack of facial effect.
• 42:23
  Speaker 1: He argues the media is demonizing him for his disability,
• 42:26
  Speaker 1: while at the same time emphasizing the brutality of the crime. This,
• 42:30
  Speaker 1: he warns, will overpower any mitigating arguments based on ASD,
• 42:34
  Speaker 1: and poses a risk that he will be sentenced based
• 42:37
  Speaker 1: on his disability. As the state points out, however, There
• 42:41
  Speaker 1: is no precedent for striking the death penalty due to
• 42:43
  Speaker 1: media coverage. Further, any concerns that arise from such media
• 42:47
  Speaker 1: coverage can be mitigated through voir dire and from expert
• 42:51
  Speaker 1: testimony and evidence during the penalty phase of the trial. Order.
• 42:56
  Speaker 1: Based on the foregoing, defendants motion to strike the death
• 42:58
  Speaker 1: penalty because of autism spectrum disorder is denied. This was
• 43:04
  Speaker 1: dated on April 24th of 2025 and it was signed
• 43:08
  Speaker 1: by Judge Hippler. All of the information that goes with
• 43:11
  Speaker 1: this episode can be found in the description box.