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Mega Edition: The State Of Idaho Once Again Responds To The Kohberger Autism Motions (10/7/26) · 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 staying up in Moscow, and we're going
• 0:06
  Speaker 1: to take a dive right back into those court documents.
• 0:09
  Speaker 1: And this time, we're taking a look at the state's
• 0:11
  Speaker 1: response to defendant's motion to strike the death penalty due
• 0:15
  Speaker 1: to autism spectrum disorder. Case number CR-0124-31665. State of Idaho
• 0:24
  Speaker 1: plaintiff versus Brian C. Koberger, the defendant, comes now. The
• 0:28
  Speaker 1: state of Idaho... by and through the Latah County Prosecuting Attorney,
• 0:33
  Speaker 1: and responds to defendant's motion to strike the death penalty
• 0:36
  Speaker 1: on account of his alleged diagnosis of autism spectrum disorder.
• 0:40
  Speaker 1: Defendant argues that it would violate the Eighth Amendment's prohibition
• 0:44
  Speaker 1: on cruel and unusual punishment to impose a sentence of
• 0:47
  Speaker 1: death because he has ASD. His argument fails for multiple
• 0:52
  Speaker 1: independent reasons. For starters, the defendant's argument contradicts both U.S.
• 0:57
  Speaker 1: Supreme Court an Idaho Supreme Court precedent. The only mental
• 1:01
  Speaker 1: disability that precludes imposition of the death penalty is intellectual
• 1:05
  Speaker 1: disability as defined in Atkins v. Virginia 536 U.S. 304
• 1:12
  Speaker 1: 2002 and Idaho Code Section 19-2515A. No other mental illness
• 1:17
  Speaker 1: qualifies unless and until the U.S. Supreme Court or the
• 1:21
  Speaker 1: Idaho Supreme Court holds differently. See State v. Dunlap 155
• 1:25
  Speaker 1: Idaho 345 Even setting that fatal flaw aside, defendant has
• 1:37
  Speaker 1: failed to prove the requisite national consensus to support his claim.
• 1:41
  Speaker 1: A critical part of that consensus is the actions of
• 1:45
  Speaker 1: state legislators in addressing the punishment defendant now claims is
• 1:49
  Speaker 1: prohibited under the Eighth Amendment. Defendant cites the actions of
• 1:53
  Speaker 1: only two states, Ohio and Kentucky. His citations are both
• 1:58
  Speaker 1: insufficient and inaccurate. See Atkins 536 U.S. at 314. Observing
• 2:05
  Speaker 1: two state enactments do not provide sufficient evidence at present
• 2:09
  Speaker 1: of a national consensus. Ohio Revised Code Section 2929.025A1A Prohibiting
• 2:19
  Speaker 1: the execution of people with some mental illnesses but not
• 2:22
  Speaker 1: including ASD. Finally, if two reasons to deny defendant's motion
• 2:27
  Speaker 1: were not enough, defendant has not shown that the rationale
• 2:31
  Speaker 1: underpinning Atkins applies to people with ASD. All the concerns
• 2:35
  Speaker 1: in Atkins trace back to intellectual disability, and the person
• 2:39
  Speaker 1: with ASD does not necessarily have intellectual disabilities. Take, for example,
• 2:44
  Speaker 1: defendant who was diagnosed with the least severe form of
• 2:48
  Speaker 1: ASD without accompanying intellectual impairment. Motion Example 2 at page 16.
• 2:56
  Speaker 1: This court should deny the defendant's motion. A. Idaho law
• 3:00
  Speaker 1: only prohibits the death penalty for a mentally disabled person
• 3:04
  Speaker 1: only when the elements of Idaho Code Section 19-2515A are
• 3:09
  Speaker 1: proven and defendant has failed to do so. Consistent with
• 3:13
  Speaker 1: the Eighth Amendment, Idaho law only prohibits the death penalty
• 3:17
  Speaker 1: for a mental disability when the person qualifies as mentally retarded.
• 3:21
  Speaker 1: I see Section 192515A, see Atkins 563 U.S. at 306
• 3:28
  Speaker 1: through 21. In Atkins, the U.S. Supreme Court put in
• 3:32
  Speaker 1: place a constitutional prohibition on the death penalty for mentally
• 3:35
  Speaker 1: retarded offenders, 536 at 321, but the court left to
• 3:39
  Speaker 1: the states the task of developing appropriate ways to enforce
• 3:43
  Speaker 1: the constitutional restriction, Idea 317. Idaho chose to enforce this
• 3:49
  Speaker 1: constitutional restriction, by enacting Idaho Code Section 19-2515A, which defines
• 3:55
  Speaker 1: mentally retarded in Idaho for purposes of the constitutional restriction
• 4:00
  Speaker 1: on the death penalty for those with mental disabilities. The
• 4:04
  Speaker 1: Idaho Supreme Court has read the statutory definition of mentally
• 4:08
  Speaker 1: retarded to require proof of three elements, one, an intelligent
• 4:12
  Speaker 1: quotient IQ of 70 or below, two, significant limitations in
• 4:17
  Speaker 1: adaptive functioning in at least two of the ten areas listed,
• 4:20
  Speaker 1: And three, the onset of the offender's IQ of 70
• 4:24
  Speaker 1: or below and the onset of his or her significant
• 4:28
  Speaker 1: limitations in adaptive functioning, both must have occurred before the
• 4:32
  Speaker 1: offender turned age 18. Pizzuto v. State, 146, Idaho, 720, 728,
• 4:36
  Speaker 1: and 29, 202, P. 3D, 642, 650, and 51, 2008. The
• 4:37
  Speaker 1: Idaho Supreme Court has flatly rejected defendant's argument. See State v. Dunlap, 155, Idaho, 345, 380, 313, P. 3D, 1, 36, 2013.
• 4:56
  Speaker 1: In Dunlap, the defendant argued, like defendant here, that the
• 5:02
  Speaker 1: rationale underlying Atkins compels the same conclusion for mentally ill defendants, i.d.,
• 5:08
  Speaker 1: the Idaho Supreme Court disagreed. The court did not evaluate
• 5:12
  Speaker 1: how those with mental illnesses compare to the intellectually disabled
• 5:16
  Speaker 1: discussed in Atkins. because it saw no need to do so. CID.
• 5:21
  Speaker 1: The court simply noted that neither the U.S. Supreme Court
• 5:24
  Speaker 1: nor any other court had expanded Atkins since it was decided.
• 5:29
  Speaker 1: We join these courts in holding that a defendant's mental
• 5:32
  Speaker 1: illness does not prevent imposition of a capital sentence. Dunlap
• 5:36
  Speaker 1: is fatal to defendant's argument. Courts in other jurisdictions have
• 5:40
  Speaker 1: similarly rejected efforts to expand Atkins to other mental disabilities,
• 5:44
  Speaker 1: including ASD. See United States v. Roof, 10F. 4, 314, 380, 4th, 2021.
• 5:53
  Speaker 1: In Roof, the defendant suffered from autism spectrum disorder, other
• 5:57
  Speaker 1: specified schizophrenia spectrum disorder, and other psychotic disorder, and other
• 6:03
  Speaker 1: specified anxiety disorder, idea 336. He argued that he should
• 6:08
  Speaker 1: too benefit from the rationale underlying Atkins, but the Fourth
• 6:11
  Speaker 1: Circuit made short work of his argument. The court found
• 6:15
  Speaker 1: that the defendant has no plausible argument that he is
• 6:18
  Speaker 1: protected by Atkins because he has an IQ of 125.
• 6:22
  Speaker 1: The court explained that Atkins, and thus the Eighth Amendment,
• 6:25
  Speaker 1: were limited to protecting the intellectually disabled and Atkins specifically
• 6:30
  Speaker 1: defined such disability as involving sub-average intellectual functioning. Quoting Atkins
• 6:36
  Speaker 1: 536 at 321. Although the significant limitations in adaptive... Skills
• 6:42
  Speaker 1: such as communication are part of the Atkins test. They
• 6:45
  Speaker 1: are not sufficient by themselves to render a defendant mentally incapacitated.
• 6:50
  Speaker 1: For purposes of the Eighth Amendment, quoting Hall v. Florida 572, U.S. 701-708, 2014.
• 6:54
  Speaker 1: See also Peterson v. State 326, 3D 535, 628 Alabama, 2019.
• 6:56
  Speaker 1: Refusing to apply Atkins to defendant with bipolar disorder, with
• 7:11
  Speaker 1: psychotic features, autism spectrum disorder, a personality disorder, and schizophrenia.
• 7:17
  Speaker 1: State v. Johnson 207 SW 3D 2451 Missouri 2006 Both
• 7:26
  Speaker 1: federal and state courts have refused to extend Atkins for
• 7:29
  Speaker 1: mental illness situations. State v. Hancock 840 NE 2D 1032
• 7:34
  Speaker 1: 1059 2006 Refusing to extend Atkins because mental illness come
• 7:42
  Speaker 1: in many forms, different illnesses may affect the defendant's moral
• 7:46
  Speaker 1: responsibility or deterrability in a different way and to different degrees.
• 7:51
  Speaker 1: Defendant has no plausible argument that the Eighth Amendment prohibits
• 7:54
  Speaker 1: the imposition of the death penalty based on his ASD.
• 7:58
  Speaker 1: His IQ of 119 is far above the required IQ
• 8:01
  Speaker 1: of 70 or lower. His IQ testing prior to age 18,
• 8:05
  Speaker 1: while lower, is still above 70. and has admitted by
• 8:09
  Speaker 1: his own expert clearly an underestimate of his ability from
• 8:13
  Speaker 1: what we know now. See example D13, page 7 and 10.
• 8:19
  Speaker 1: He's failed to prove two of the required three statutory
• 8:22
  Speaker 1: elements to enjoy the Eighth Amendment's protection against the death
• 8:25
  Speaker 1: penalty on account of his alleged mental disability, Idaho Code
• 8:31
  Speaker 1: section 19-2515A, and the holdings in Atkins, Pizzuto, and Dunlap,
• 8:36
  Speaker 1: therefore require this court to deny his motion. B. Defendant's
• 8:41
  Speaker 1: Eighth Amendment claim fails because he cannot show evolving standards
• 8:45
  Speaker 1: of decency prohibit the death penalty for individuals with ASD.
• 8:50
  Speaker 1: Even if this court could go beyond Dunlap, the conclusion
• 8:53
  Speaker 1: remains the same. Defendant has no plausible argument. Under the
• 8:57
  Speaker 1: Eighth Amendment, defendant cannot show that evolving standards of decency
• 9:01
  Speaker 1: prohibit use of the death penalty as to individuals with ASD.
• 9:05
  Speaker 1: a requirement of his Eighth Amendment claim. As the Atkins
• 9:08
  Speaker 1: Court explained, proportionality review under those evolving standards should be
• 9:13
  Speaker 1: informed by objective factors to the maximum possible extent. 536 U.S.
• 9:19
  Speaker 1: at 312. The court has pinpointed that the clearest and
• 9:22
  Speaker 1: most reliable objective evidence of contemporary values is the legislation
• 9:27
  Speaker 1: enacted by the country's legislatures. It is only in cases
• 9:32
  Speaker 1: involving a consensus of state legislatures that the court has
• 9:36
  Speaker 1: brought to bear its own judgment on whether a penalty
• 9:39
  Speaker 1: violates the Eighth Amendment's prohibition on cruel and unusual punishment.
• 9:44
  Speaker 1: Atkins concluded a national consensus has developed against using the
• 9:48
  Speaker 1: death penalty on the intellectually disabled only after finding that
• 9:52
  Speaker 1: 18 states had adopted legislation to that effect. The Texas
• 9:56
  Speaker 1: legislature had unanimously passed such a bill and similar bills
• 10:00
  Speaker 1: had passed in at least one house in two other states.
• 10:05
  Speaker 1: The court found this number of states sufficient given the
• 10:08
  Speaker 1: consistency of the direction of the change. Here the defendant
• 10:11
  Speaker 1: cites two states to support his claim, motion at 12,
• 10:15
  Speaker 1: citing Ohio and Kentucky. That is two too many. Ohio
• 10:19
  Speaker 1: statute applies only to schizophrenia, schizoaffective disorder, bipolar disorder, and
• 10:25
  Speaker 1: delusional disorder. See Ohio Revised Code, Section 2929.025A1A. Kentucky statute
• 10:34
  Speaker 1: is the same. See Kentucky Revised Code, Section 532.130.3. All
• 10:40
  Speaker 1: defendant has succeeded in proving is that Ohio and Kentucky
• 10:43
  Speaker 1: revised their death penalty prohibitions within the last five years.
• 10:47
  Speaker 1: and did not think it necessary to add ASD as
• 10:50
  Speaker 1: a disqualifying condition. That is not the kind of consistency
• 10:54
  Speaker 1: defendant needs, and it's the wrong direction of change to
• 10:57
  Speaker 1: support his claim, Atkins, 536 U.S. 315. Defendant's evolving standard
• 11:04
  Speaker 1: argument goes downhill from there. He cites as proof that
• 11:07
  Speaker 1: society has evolved to prohibit the use of the death
• 11:09
  Speaker 1: penalty on individuals with ASD, three appellate court decisions, two unpublished,
• 11:15
  Speaker 1: all decided more than 15 years ago and none involving
• 11:18
  Speaker 1: the death penalty. Defendant also cites media reports regarding another
• 11:23
  Speaker 1: death penalty case where the defendant has ASD, motion at 13.
• 11:28
  Speaker 1: None of those reports, however, call for or suggest anyone
• 11:31
  Speaker 1: else has called for a categorical prohibition on the death
• 11:34
  Speaker 1: penalty for individuals with ASD, Atkins 536, U.S. at 313
• 11:40
  Speaker 1: and 14 at N8, noting public protests over the execution
• 11:44
  Speaker 1: of of intellectually disabled person because he was intellectually disabled,
• 11:48
  Speaker 1: and explaining the execution, at least in part, caused the
• 11:52
  Speaker 1: state legislatures across the country to address the issue. Even
• 11:56
  Speaker 1: the defendant in that case, who is currently awaiting his execution,
• 12:00
  Speaker 1: asserts his execution would violate the 8th Amendment because he
• 12:03
  Speaker 1: is innocent, not because he has ASD. See petition at 62,
• 12:08
  Speaker 1: arguing the defendant is actually innocent of the offense for
• 12:11
  Speaker 1: which he was convicted and sentenced to death, and his
• 12:14
  Speaker 1: execution would therefore be cruel and unusual and violate his
• 12:19
  Speaker 1: due process rights under the 8th and 14th Amendments. Defendant
• 12:23
  Speaker 1: has failed to entirely demonstrate any kind of consensus to
• 12:26
  Speaker 1: support his claim that individuals with ASD should be categorically
• 12:30
  Speaker 1: precluded from receiving a sentence of death. Thus, he cannot
• 12:34
  Speaker 1: establish such a sentence violates the 8th Amendment. Alright, we're
• 12:38
  Speaker 1: going to wrap up this episode right here, and in
• 12:40
  Speaker 1: the next episode, we're going to pick up with C.
• 12:43
  Speaker 1: Autism spectrum disorder is not susceptible to defendant's categorical approach.
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  Speaker 1: All of the information that goes with this episode can
• 12:51
  Speaker 1: be found in the description box. What's up everyone and
• 12:55
  Speaker 1: welcome back to the program. In this episode, we're going
• 12:57
  Speaker 1: to pick up where we left off with the state's
• 12:59
  Speaker 1: response to defendant's motion to strike death penalty autism spectrum disorder. See,
• 13:06
  Speaker 1: autism spectrum disorder is not susceptible to defendant's categorical approach.
• 13:11
  Speaker 1: This court should reject defendants' attempt to group together all
• 13:14
  Speaker 1: individuals with any form of ASD for purposes of determining
• 13:19
  Speaker 1: whether the Eighth Amendment prohibits imposition of the death penalty.
• 13:23
  Speaker 1: The U.S. Supreme Court's categorical approach to the Eighth Amendment
• 13:26
  Speaker 1: in the death penalty context has focused on groups who,
• 13:29
  Speaker 1: by and large, share the same characteristics. See Atkins 536 U.S. 306,
• 13:35
  Speaker 1: concluding that all intellectually disabled people do not act with
• 13:39
  Speaker 1: a level of moral culpability that characterizes the most serious
• 13:43
  Speaker 1: adult criminal conduct because of their disabilities in areas of reasoning, judgment,
• 13:48
  Speaker 1: and control of their impulses. Roper v. Simmons, 543 U.S. 551-569-2005,
• 13:56
  Speaker 1: expounding on the general differences between juveniles under 18 and
• 14:01
  Speaker 1: adults and stating its reasoning applies to all juvenile offenders
• 14:05
  Speaker 1: under 18. Unlike the intellectually disabled and minors, Everyone with
• 14:10
  Speaker 1: autism spectrum disorder does not, by and large, share the
• 14:14
  Speaker 1: same relevant characteristics for purposes of the Eighth Amendment. The
• 14:18
  Speaker 1: term spectrum indicates that wide range of autistic symptoms and severity.
• 14:23
  Speaker 1: Supplemental response to request for discovery regarding expert witnesses, example D13B,
• 14:29
  Speaker 1: page 31, filed 12325. Defendant would have met the DSM
• 14:35
  Speaker 1: four criteria for Asperger's disorder. Asperger's disorder is a form
• 14:40
  Speaker 1: of autistic spectrum disorder, and even within that one subset
• 14:43
  Speaker 1: of ASD, all individuals with Asperger's are different. One fluctuating
• 14:49
  Speaker 1: co-occurring condition, for example, is accompanying intellectual disability. It used
• 14:55
  Speaker 1: to be estimated that 70% of those with autistic spectrum
• 14:58
  Speaker 1: disorder have a degree of intellectual disability, but that estimation
• 15:02
  Speaker 1: has changed to about 50%. Even if a categorical approach
• 15:06
  Speaker 1: to ASD were appropriate, The Eighth Amendment analysis would necessarily
• 15:11
  Speaker 1: have to focus on those who have at least severe symptoms.
• 15:15
  Speaker 1: This makes the specific facts of defendant's case ideal because
• 15:19
  Speaker 1: of his diagnosis. He was diagnosed with autism spectrum disorder
• 15:23
  Speaker 1: level 1 without intellectual or language impairment. Level 1 is
• 15:29
  Speaker 1: the least severe of the three levels of ASD. D.
• 15:32
  Speaker 1: Defendant's social impairment from ASD does not fall within the
• 15:36
  Speaker 1: rationale articulated in Atkins for prohibiting the death penalty of
• 15:41
  Speaker 1: the intellectually disabled. Even if there were a consensus of
• 15:45
  Speaker 1: state legislatures, defendant has failed to show that his social
• 15:48
  Speaker 1: impairment from ASD falls within the rationale underpinning the court's
• 15:53
  Speaker 1: independent evaluation in Atkins 536 U.S. at 1321. The Atkins
• 15:59
  Speaker 1: court gave three reasons why it agreed with the legislatures
• 16:02
  Speaker 1: that have recently addressed the matter. 1. The lesser culpability
• 16:06
  Speaker 1: of the intellectually disabled. does not merit the death penalty. Two,
• 16:10
  Speaker 1: the death penalty does not act as a deterrent for
• 16:13
  Speaker 1: the intellectually disabled because they cannot process the possibility of
• 16:17
  Speaker 1: execution as a penalty. And three, impairments of the intellectually
• 16:20
  Speaker 1: disabled can jeopardize the fairness of their proceedings. CID 306
• 16:26
  Speaker 1: and 307, 317 through 321. None of these reasons support
• 16:31
  Speaker 1: striking the death penalty in this case. First, defendant has
• 16:34
  Speaker 1: failed to show that his ASD would in any way
• 16:37
  Speaker 1: make them less culpable for murder. The Atkins court found
• 16:40
  Speaker 1: the intellectually disabled less culpable because of the powerful evidence
• 16:44
  Speaker 1: of the large number of states prohibiting the execution of
• 16:48
  Speaker 1: mentally retarded persons. 536 U.S. at 315 and 16. Defendant
• 16:53
  Speaker 1: has no such evidence. See Supra Part B. The evidence
• 16:57
  Speaker 1: defendant has offered on the front proves the opposite. Kentucky
• 17:01
  Speaker 1: and Ohio found people with specific mental illnesses less morally
• 17:05
  Speaker 1: culpable but they did not include people with ASD. See Ohio,
• 17:10
  Speaker 1: Revised Code, Section 2929.25a1a. Nor do the specific factors discussed
• 17:18
  Speaker 1: in Atkins support defendants' argument. Atkins explained the intellectually disabled
• 17:22
  Speaker 1: were less morally culpable because of cognitive and behavioral impairments,
• 17:27
  Speaker 1: including the diminished ability to understand and process information. to
• 17:32
  Speaker 1: learn from experience, to engage in logical reasoning, or to
• 17:35
  Speaker 1: control impulses, Idea 320. Defendant's ASD does not result in
• 17:40
  Speaker 1: cognitive impairments. He was diagnosed with autism spectrum disorder level
• 17:44
  Speaker 1: 1 without accompanying intellectual or language impairment. His type of
• 17:49
  Speaker 1: ASD is characterized by severe and sustained impairments in social interaction,
• 17:54
  Speaker 1: but not cognitive ability. His examination revealed no evidence of
• 17:58
  Speaker 1: a formal thought disorder or thought disorganization. and no evidence
• 18:03
  Speaker 1: of difficulty understanding the examiner. While defendant's ASD may cause
• 18:08
  Speaker 1: behavioral impairments such as impulsive tendencies, nothing in his report
• 18:13
  Speaker 1: suggests such impulsive tendencies manifest through physical aggression or that
• 18:17
  Speaker 1: his lack of impulse control had any connection to the
• 18:20
  Speaker 1: crimes with which he is charged. Second, defendant has failed
• 18:25
  Speaker 1: to show that any imposition of the death penalty in
• 18:28
  Speaker 1: this case would not act as a deterrent to similarly
• 18:31
  Speaker 1: situated individuals with ASD. The court expressed concern in Atkins
• 18:36
  Speaker 1: that the intellectually disabled did not have the intellectual capacity
• 18:39
  Speaker 1: to process the information of the possibility of execution as
• 18:43
  Speaker 1: a penalty and as a result control their conduct based
• 18:47
  Speaker 1: upon that information. 536 U.S. 320 Here, again, this does
• 18:52
  Speaker 1: not apply to defendant because his ASD diagnosis excludes any
• 18:57
  Speaker 1: accompanying intellectual impairment. In fact, one of defendant's own experts
• 19:01
  Speaker 1: found that he is highly intelligent and has a factual
• 19:04
  Speaker 1: understanding of the proceedings against him, including the penalty he
• 19:08
  Speaker 1: is possibly facing. That is unsurprising conclusion given that his
• 19:12
  Speaker 1: ASD did not prevent him from graduating with a master's
• 19:15
  Speaker 1: degree in criminal justice in January with a GPA of 4.0. Third,
• 19:20
  Speaker 1: defendant has failed to show his ASD will jeopardize the
• 19:24
  Speaker 1: fairness of the proceedings against him. Atkins emphasized that people
• 19:28
  Speaker 1: with intellectual disabilities are more prone to false confessions, are
• 19:32
  Speaker 1: typically poor witnesses, may be less able to give meaningful
• 19:35
  Speaker 1: assistance to their counsel, and may have demeanor that creates
• 19:39
  Speaker 1: an unwarranted impression of lack of remorse for their crimes.
• 19:44
  Speaker 1: See 536 U.S. at 320 and 21 and 25. The
• 19:45
  Speaker 1: court also noted that men retardation as a mitigating factor
• 19:52
  Speaker 1: can be a two-edged sword that may enhance the likelihood
• 19:55
  Speaker 1: that the aggravating factor of future dangerousness will be found
• 19:59
  Speaker 1: by the jury. None of the court's concerns weigh in
• 20:04
  Speaker 1: favor of striking the death penalty in this case. Neither
• 20:07
  Speaker 1: the concern about false confessions nor the concern about lack
• 20:11
  Speaker 1: of remorse apply in this case because defendant is not
• 20:14
  Speaker 1: confessed and maintains that he is innocent of the offenses
• 20:17
  Speaker 1: which he is charged. Even as a categorical matter, defendant
• 20:22
  Speaker 1: has provided no evidence to suggest that people with ASD
• 20:25
  Speaker 1: are more likely to falsely confess to a crime which
• 20:28
  Speaker 1: sufficiently distinguishes them from the intellectually disabled people in Atkins.
• 20:33
  Speaker 1: To the extent that social impairment, from ASD cause an
• 20:37
  Speaker 1: unwarranted impression of a lack of remorse, that negative reaction
• 20:40
  Speaker 1: is limited to those who do not understand autistic spectrum disorder.
• 20:45
  Speaker 1: And the defense can address ASD with the jury during
• 20:48
  Speaker 1: the penalty phase, presumably the only time defendant would be
• 20:52
  Speaker 1: interested in showing remorse. Moreover, neither of defendant's experts expressed
• 20:57
  Speaker 1: concern about his current ability to assist his counsel. Instead,
• 21:01
  Speaker 1: one expert at least implied she does not currently have
• 21:04
  Speaker 1: that concern. because she recommended only that the attorneys monitor
• 21:08
  Speaker 1: his competency throughout the proceedings regarding his ability to assist
• 21:12
  Speaker 1: in the preparation and presentation of his defense. Similarly, defendants'
• 21:17
  Speaker 1: reports do not support the concern that would be a
• 21:20
  Speaker 1: poor witness in the same way an intellectually disabled person
• 21:24
  Speaker 1: would be a poor witness. Atkins, 536 U.S. at 320
• 21:26
  Speaker 1: and 21. The Atkins court did not explain... What it
• 21:32
  Speaker 1: meant when it said those with intellectual disability are typically
• 21:35
  Speaker 1: poor witnesses, but its overwhelming focus on lack of intelligence
• 21:39
  Speaker 1: suggests it was the diminished ability to understand the process information.
• 21:44
  Speaker 1: No evidence suggests defendant would have that problem. He is
• 21:47
  Speaker 1: highly intelligent and has a factual understanding of the proceedings
• 21:51
  Speaker 1: against him. His speech during his formal evaluation was fluent,
• 21:55
  Speaker 1: clearly articulated, and appropriate in rate and volume. His language
• 22:00
  Speaker 1: was generally appropriate in content and form, with no grammatical errors.
• 22:04
  Speaker 1: With respect to his comprehension throughout his evaluation, he appeared intact,
• 22:09
  Speaker 1: and there was no evidence of difficulty understanding the questioner,
• 22:13
  Speaker 1: and he was never overtly inappropriate. To the extent his
• 22:17
  Speaker 1: report suggests potential downsides as a witness, those downsides are
• 22:21
  Speaker 1: not significantly different than many other witnesses testifying in court
• 22:25
  Speaker 1: for the first time. lack of descriptive or emphatic gestures,
• 22:30
  Speaker 1: atypical speech, tone and cadence, awkward interaction and lack of fluidity,
• 22:35
  Speaker 1: awkward comments, and occasional intense gaze. Furthermore, defendant is not
• 22:41
  Speaker 1: shown that his ASD will enhance the likelihood that the
• 22:43
  Speaker 1: aggravating factor of future dangerousness will be found by the jury. Atkins,
• 22:49
  Speaker 1: 536 U.S. at 321. Nothing in defendant's report suggests that
• 22:53
  Speaker 1: his ASD causes him to act violently or even more aggressively. Indeed,
• 22:58
  Speaker 1: he does not have a history of violence, rather than
• 23:01
  Speaker 1: one incident years ago, that neither expert attributes to his ASD. E.
• 23:06
  Speaker 1: The media attention in this case does not warrant striking
• 23:09
  Speaker 1: the death penalty under the Eighth Amendment. Defendant's argument related
• 23:13
  Speaker 1: to the media finds no support in Atkins or any
• 23:17
  Speaker 1: other Eighth Amendment case law. If the Eighth Amendment does
• 23:20
  Speaker 1: not preclude a sentence of death for people with ASD,
• 23:23
  Speaker 1: and it does not, that punishment does not suddenly become
• 23:26
  Speaker 1: cruel and unusual and And in violation of the Eighth Amendment,
• 23:29
  Speaker 1: merely because potential symptoms of defendant's ASD were reported in
• 23:33
  Speaker 1: the media, the Sixth Amendment protects defendant's rights to a
• 23:37
  Speaker 1: fair and impartial jury. And the extensive jury selection process
• 23:42
  Speaker 1: this court has planned will sufficiently vindicate that right. Defendant
• 23:46
  Speaker 1: cites no case in any jurisdiction that has held or
• 23:49
  Speaker 1: even suggested that significant media coverage can give rise to
• 23:53
  Speaker 1: an Eighth Amendment claim of cruel and unusual punishments. Conclusion.
• 23:58
  Speaker 1: For all the reasons stated above, the court should deny
• 24:01
  Speaker 1: defendant's motion. This document was signed on March 17th, 2025
• 24:07
  Speaker 1: and it was signed by William Thompson and Jeff Nye.
• 24:11
  Speaker 1: All of the information that goes with this episode, including
• 24:13
  Speaker 1: my contact information, can be found in the description box.
• 24:18
  Speaker 1: What's up everyone and welcome back to the program. In
• 24:21
  Speaker 1: this episode, we're staying up in Moscow and we're going
• 24:24
  Speaker 1: to dive right back into the court documents and this time,
• 24:27
  Speaker 1: We're going to be taking a look at the state's
• 24:29
  Speaker 1: response to Brian Koberger's motion in limine number one, inflammatory evidence.
• 24:35
  Speaker 1: We're also going to be taking a look at the
• 24:37
  Speaker 1: state's response to the defendant's motion in limine number three,
• 24:41
  Speaker 1: the use of term murder. And we're also going to
• 24:44
  Speaker 1: be taking a look at the state's response to defendant's
• 24:46
  Speaker 1: motion in limine number four, use of term psychopath or sociopath.
• 24:52
  Speaker 1: So let's get to it. First document we have is
• 24:55
  Speaker 1: state's response to defendant's motion In limine number one, inflammatory evidence.
• 25:01
  Speaker 1: Case number CR01-24-316665. State of Idaho plaintiff. First Brian C. Kohlberger,
• 25:10
  Speaker 1: the defendant. Comes now. The state of Idaho by and
• 25:14
  Speaker 1: through the Latah County prosecuting attorney and submits the following
• 25:17
  Speaker 1: response to the defendant's motion in limine number one, RE
• 25:22
  Speaker 1: inflammatory evidence filed on February 24th, 2025. Unfortunately, the defendant
• 25:29
  Speaker 1: does not specify what potential evidence he is objecting to
• 25:32
  Speaker 1: as exceptionally inflammatory, nor does the defendant define exceptionally inflammatory.
• 25:38
  Speaker 1: That said, this is an appropriate opportunity to review the
• 25:41
  Speaker 1: applicable standards. In the second paragraph on page 2 of
• 25:45
  Speaker 1: the defendant's instant motion, he lists three cases purportedly relating
• 25:49
  Speaker 1: to inflammatory evidence, including testimony evidence, State v. Phillips, 144, Idaho, 82, 207,
• 25:57
  Speaker 1: State v. Babb, 125 Idaho, 934, 1994. State v. Ellington,
• 26:04
  Speaker 1: 151 Idaho, 53, 2011. However, on review, these cases seem
• 26:10
  Speaker 1: to pertain to allegations of prosecutorial misconduct, enclosing argument, etc.,
• 26:15
  Speaker 1: intended to inflame a jury. The state respectfully submits that
• 26:19
  Speaker 1: when it comes to allegedly inflammatory evidence, the proper analysis
• 26:23
  Speaker 1: is under State v. Leavitt and its progeny. 116 Idaho 285, 1989.
• 26:29
  Speaker 1: In Levitt, the Idaho Supreme Court addressed color photographs of
• 26:34
  Speaker 1: a victim's corpse being admitted into evidence. The defendant next
• 26:38
  Speaker 1: asserts that the trial court erred in three evidentiary rulings.
• 26:42
  Speaker 1: The defendant first asserts that error was committed when certain
• 26:45
  Speaker 1: color photographs of the victim's corpse in an advanced state
• 26:49
  Speaker 1: of decomposition were admitted in evidence. Defendant cites State v. Martinez,
• 26:53
  Speaker 1: 92 Idaho 183, 1968. as authority for his assertion of error.
• 27:00
  Speaker 1: Therein the court dealt with the need to balance the
• 27:03
  Speaker 1: probative value and relevance of such evidence against resulting prejudice
• 27:07
  Speaker 1: to the defendant. We agree with the Martinez balancing rule. However,
• 27:12
  Speaker 1: in the instant case, although the photographs were admittedly gruesome
• 27:15
  Speaker 1: in nature, clearly they were necessary to show the nature
• 27:18
  Speaker 1: of the crime and the type of wounds inflicted upon
• 27:21
  Speaker 1: the body. The jury is entitled to have an accurate
• 27:24
  Speaker 1: picture of all the circumstances. and although such information may
• 27:28
  Speaker 1: be gruesome in nature, it's necessary to make an intelligent
• 27:31
  Speaker 1: fact-finding decision. State v. Izzot, 96, Idaho, 667, 534P. 2D, 1107, 1975.
• 27:42
  Speaker 1: Since the photographic evidence is relevant, there is no objection
• 27:46
  Speaker 1: on the basis that it could be presented in a
• 27:48
  Speaker 1: somehow less graphic form. The state is not obligated to
• 27:51
  Speaker 1: present evidence which has lesser impact. State v. Rollo, 221, 428.351.P.2D.422.1960.
• 28:02
  Speaker 1: Levitt 116 at 290. IRE 403 describes the applicable balancing test.
• 28:09
  Speaker 1: The court may exclude relevant evidence if its probative value
• 28:12
  Speaker 1: is substantially outweighed by a danger of one or more
• 28:16
  Speaker 1: of the following. Unfair prejudice, confusing the issues, misleading the jury,
• 28:21
  Speaker 1: undue delay, wasting time, or needlessly presenting cumulative evidence. IRE 403.
• 28:29
  Speaker 1: As Professor Lewis observed in his Idaho Trial Handbook, The
• 28:32
  Speaker 1: Balance Imposed in Idaho, 403 favors admission in the face
• 28:36
  Speaker 1: of those risks. The rule provides for exclusion only where
• 28:40
  Speaker 1: the probative value is substantially outweighed by the negative factors. D.
• 28:44
  Speaker 1: Craig Lewis, Idaho, Trial Handbook, 2nd Section, 13-4, p. 221.
• 28:51
  Speaker 1: The prejudice addressed in Idaho R. Evidence 403 is not
• 28:55
  Speaker 1: merely detriment to the opponent's case. All relevant evidence is
• 28:59
  Speaker 1: prejudicial to the opponent in that sense. State v. Fenley 103,
• 29:03
  Speaker 1: Idaho 199-646 P. 2D 441-1982 The proper question is whether the
• 29:12
  Speaker 1: evidence in question is unfairly prejudicial, that is, whether it
• 29:15
  Speaker 1: invites inordinate appeal to lines of reasoning outside of the evidence.
• 29:20
  Speaker 1: or emotions which are irrelevant to the decision-making process. In
• 29:24
  Speaker 1: State v. Wynn, the Idaho Supreme Court explained that photos
• 29:26
  Speaker 1: of a murder victim can be admitted to aid the
• 29:28
  Speaker 1: jury in arriving at a fair understanding of the evidence.
• 29:41
  Speaker 1: The extent of the injury, the condition of the body,
• 29:43
  Speaker 1: and their bearing on the question of the degree and
• 29:46
  Speaker 1: atrociousness of the crime. 120 Idaho 850-853-1991 The fact that
• 29:53
  Speaker 1: the photographs depict the actual body of the victim and
• 29:56
  Speaker 1: wounds inflicted on the victim may tend to excite the
• 29:59
  Speaker 1: emotions of the jury is not basis for excluding them.
• 30:03
  Speaker 1: The question is not whether the photos were prejudicial because
• 30:07
  Speaker 1: almost all evidence in a criminal trial is demonstrably admitted
• 30:10
  Speaker 1: to prove the case of the state and thus results
• 30:13
  Speaker 1: in prejudice to the defendant. The fact that certain evidence
• 30:20
  Speaker 1: is horrifying and gruesome is not in and of itself
• 30:23
  Speaker 1: sufficient reason for exclusion. The jury is entitled to have
• 30:27
  Speaker 1: an accurate picture of all the circumstances and although such
• 30:30
  Speaker 1: information may be gruesome in nature, it's necessary to make
• 30:34
  Speaker 1: an intelligent fact-finding decision. As explained in Brown v. State,
• 30:39
  Speaker 1: gruesome photographs are a result of gruesome crimes. 989 p. 2d
• 30:42
  Speaker 1: 913 934 1998 See also State v. Reed 151 Idaho
• 30:43
  Speaker 1: 80 2011. The photographs are undoubtedly gruesome, but this was
• 30:56
  Speaker 1: a gruesome murder trial. Again, in his instant motion in limine,
• 31:01
  Speaker 1: the defendant fails to specify what potential evidence he is
• 31:04
  Speaker 1: objecting to as irrelevant and unfairly prejudicial photographs, testimony, and
• 31:09
  Speaker 1: other exhibits. At page 1. Additionally, although the defendant refers
• 31:14
  Speaker 1: to the phrase especially inflammatory, he fails to define and
• 31:18
  Speaker 1: provide authority for such characterization. As seen above, the analysis
• 31:23
  Speaker 1: for the court is a balancing test under IRE 403,
• 31:27
  Speaker 1: which favors admissibility and provides for exclusion only where the
• 31:31
  Speaker 1: probative value is substantially outweighed by prejudice. The state requests
• 31:36
  Speaker 1: that the court deny the defendant's instant motion with the
• 31:39
  Speaker 1: understanding that the applicable legal standards are as outlined above,
• 31:43
  Speaker 1: and it is incumbent on the defendant to specify what
• 31:46
  Speaker 1: actual evidence he believes the court should prohibit. This document
• 31:50
  Speaker 1: was dated and March 17th, 2025, and it was signed
• 31:54
  Speaker 1: by William Thompson. Alright, moving on to the next document.
• 31:58
  Speaker 1: This one is State's Response to Defendant's Motion in Lemonet No. 3.
• 32:04
  Speaker 1: Use of the Term Murder. Case Numbers CR01-24-31665 State of
• 32:12
  Speaker 1: Idaho Plaintiff vs. Brian C. Koberger, the Defendant Comes now.
• 32:17
  Speaker 1: The State of Idaho, by and through the Latah County
• 32:20
  Speaker 1: Prosecuting Attorney, and responds to defendant's motion in limine regarding
• 32:24
  Speaker 1: the use of the term murder. Defendant asks his court
• 32:28
  Speaker 1: to prohibit the lawyers or witnesses from using the word
• 32:31
  Speaker 1: murder or any form of the word murder. The court
• 32:35
  Speaker 1: should deny the motion. The recent decision from the Idaho
• 32:38
  Speaker 1: Supreme Court is instructive. See State v. Radu, No. 49945, Idaho,
• 32:42
  Speaker 1: March 4, 2025. In Radu, the defendant moved to prohibit
• 32:50
  Speaker 1: the use of the term victim at trial, idea 26.
• 32:54
  Speaker 1: The district court denied the motion and the Idaho Supreme
• 32:57
  Speaker 1: Court affirmed on appeal. The court reasoned that the jury
• 33:00
  Speaker 1: was instructed not to draw any inferences from the use
• 33:03
  Speaker 1: of the term at trial, idea 27 through 29. The
• 33:07
  Speaker 1: court also pointed out that there was no dispute that
• 33:10
  Speaker 1: the victim suffered death from an injurious action of defendant. Rather,
• 33:14
  Speaker 1: the question was whether the defendant had the capacity to
• 33:17
  Speaker 1: form the requisite intent to commit that action. Idea 28.
• 33:22
  Speaker 1: Courts in other jurisdictions use similar reasoning when allowing the
• 33:26
  Speaker 1: prosecution to use the word murder at the murder trial.
• 33:30
  Speaker 1: For example, the Supreme Court of Virginia held a trial
• 33:33
  Speaker 1: court properly allowed the use of the word murder because
• 33:36
  Speaker 1: the jury clearly knew that they were jurors at a
• 33:38
  Speaker 1: murder trial. Thomas v. Commonwealth, 688, 2010. The question at
• 33:41
  Speaker 1: issue is, was whether the defendant had committed the murder. I.D.
• 33:50
  Speaker 1: Laney v. State, 515, Georgia, 1999. The trial court did
• 33:54
  Speaker 1: not err in permitting the prosecutor to use the word
• 33:57
  Speaker 1: murder instead of homicide. State v. Williams, 615, 1993. Holding
• 34:04
  Speaker 1: trial court did not err in allowing the use of
• 34:06
  Speaker 1: murder and victim at trial because the indictment charged defendant
• 34:10
  Speaker 1: with the first-degree murder of Daniel Kurt Anderson, so the
• 34:13
  Speaker 1: jury was fully aware of the charged offense, was murder,
• 34:16
  Speaker 1: and Anderson was the alleged victim. State v. Vargas, 873, 1994.
• 34:21
  Speaker 1: In particular, we fail to see any impropriety in the
• 34:25
  Speaker 1: prosecutor's use of the word murder while conducting a prosecution
• 34:29
  Speaker 1: for second-degree murder. Here, the state's use of the word
• 34:33
  Speaker 1: murder will not unfairly prejudice the defendant. The indictment charges
• 34:36
  Speaker 1: defendant with four counts of murder in the first degree.
• 34:40
  Speaker 1: See indictment filed on 5-16-2023. and the jury will be
• 34:44
  Speaker 1: told as much immediately after the trial begins, CICJI001 at 2-3.
• 34:52
  Speaker 1: The jury will also be instructed as to the presumption
• 34:55
  Speaker 1: of innocence, CICJ001 at 4. Told their decision must be
• 35:00
  Speaker 1: based on the evidence CICJI202 and instructed that arguments and
• 35:05
  Speaker 1: statements of the attorneys are not evidence, CICJI202. Moreover, considering
• 35:11
  Speaker 1: the evidence that will be presented At trial and the
• 35:14
  Speaker 1: defense theory, there is no dispute that four murders occurred.
• 35:18
  Speaker 1: The question for the jury will be whether defendant committed
• 35:22
  Speaker 1: the four murders. Defendant's position is that he was not
• 35:25
  Speaker 1: present when the murders occurred. See notice of defendant's supplemental
• 35:29
  Speaker 1: response to state's alibi demand. Filed 4-17-24 stating defendant was
• 35:35
  Speaker 1: out driving in the early morning hours of November 13,
• 35:38
  Speaker 1: 2022 as he often did to hike and run, and
• 35:42
  Speaker 1: or to see the moon and stars. Defendant is not
• 35:46
  Speaker 1: arguing self-defense or a lesser included form of homicide. On
• 35:50
  Speaker 1: the other hand, the state will be prejudiced if it
• 35:52
  Speaker 1: cannot use the word murder given the four first-degree murder charges.
• 35:57
  Speaker 1: In closing arguments, for example, both parties are generally given
• 36:00
  Speaker 1: wide latitude to making their argument to the jury and
• 36:03
  Speaker 1: discussing the evidence and inferences to be made therefrom. State v. Godwin,
• 36:08
  Speaker 1: 164 Idaho, 2019 Quoting State v. Everson, 147 Idaho, 2009.
• 36:16
  Speaker 1: The state, like the defense, is allowed to utilize the
• 36:18
  Speaker 1: law as set forth in the jury instructions and the
• 36:21
  Speaker 1: evidence admitted during trial. Forcing the state to refer to
• 36:25
  Speaker 1: the alleged crimes as anything other than what the jury instructions, law,
• 36:28
  Speaker 1: and indictment states would prejudice the state. Defendant cites no
• 36:32
  Speaker 1: authority that prohibits the state from using the word murder,
• 36:35
  Speaker 1: which is reason enough to deny his motion. C. Magraw v. Roden,
• 36:39
  Speaker 1: 2013 W.L., Mass. February 19, 2013. Rejecting the same argument
• 36:46
  Speaker 1: because defendant fails to provide citations to any authority that
• 36:50
  Speaker 1: suggests that the prosecution's use of the word murder during
• 36:53
  Speaker 1: a murder trial is improper. Instead, he attempts to stretch
• 36:57
  Speaker 1: the evidentiary rules on experts to apply to the prosecutors.
• 37:01
  Speaker 1: Those rules prohibit the use of the word murder in
• 37:04
  Speaker 1: defendant's view because the state's use of the word murder
• 37:07
  Speaker 1: would reveal the prosecutor's personal belief that defendant committed murder.
• 37:11
  Speaker 1: But the mere use of the word murder implies at
• 37:13
  Speaker 1: most that one or more murders occurred. And as explained above,
• 37:18
  Speaker 1: there is no dispute that four murders occurred. Furthermore, it's
• 37:22
  Speaker 1: explicit statements of personal opinions that the Idaho Supreme Court
• 37:26
  Speaker 1: has instructed prosecutors to avoid. See State v. Dempsey 169, 2021.
• 37:33
  Speaker 1: A prosecutor cannot avoid implicit indications of opinion. We observe
• 37:38
  Speaker 1: that there is little practical difference between a statement that
• 37:40
  Speaker 1: begins the evidence shows and a statement that begins I
• 37:43
  Speaker 1: believe the evidence shows. In the former, the prosecuting attorney's
• 37:47
  Speaker 1: opinion is implicit because presumably she would not say the
• 37:51
  Speaker 1: evidence shows something that she should not believe it shows,
• 37:55
  Speaker 1: while in the latter, the prosecuting attorney's opinion is explicit. Nevertheless,
• 38:00
  Speaker 1: there is nothing to be gained from a first-person expression
• 38:03
  Speaker 1: of this sort and it's best avoided. It would, of course,
• 38:07
  Speaker 1: be improper for the state to say at any point
• 38:10
  Speaker 1: during the trial, I believe this is the murder weapon,
• 38:13
  Speaker 1: but not because of the word murder. For all these reasons,
• 38:16
  Speaker 1: the court should deny defendant's request for the state to
• 38:19
  Speaker 1: refrain from using the word murder during a lengthy murder trial.
• 38:24
  Speaker 1: This document was signed on March 17th, 2025, and it
• 38:29
  Speaker 1: was signed by William Thompson and Jeff Nye. And moving
• 38:32
  Speaker 1: on to our final document for this episode, we have
• 38:35
  Speaker 1: the state's response to defendant's motion in limine number four,
• 38:39
  Speaker 1: use the term psychopath or sociopath. Comes now, the state
• 38:43
  Speaker 1: of Idaho by and through the Latah County prosecuting attorney
• 38:46
  Speaker 1: and response to defendant's motion in limine regarding the use
• 38:50
  Speaker 1: of the term psychopath or sociopath. Defendant asks this court
• 38:54
  Speaker 1: to exclude the use of the word psychopath and sociopath
• 38:57
  Speaker 1: during the trial. The state has no plans to use
• 39:00
  Speaker 1: the word psychopath. or sociopath during the trial based on
• 39:03
  Speaker 1: the current record. The state notes, however, the defense recently
• 39:07
  Speaker 1: put defendant's mental health at issue, CEG, motion to strike
• 39:11
  Speaker 1: death penalty, autism spectrum disorder. As a result, the state
• 39:15
  Speaker 1: may move to have defendant examined by its own expert,
• 39:18
  Speaker 1: CIC Section 18-207-4C. If such an examination takes place and
• 39:25
  Speaker 1: reveals any additional information about defendant's mental health or the
• 39:29
  Speaker 1: defense he has served, additional information regarding defendant's mental health,
• 39:33
  Speaker 1: the state reserves the right to use that information to
• 39:35
  Speaker 1: the extent it is relevant and admissible on the issue
• 39:39
  Speaker 1: of guilt or punishment. This document was dated March 17th
• 39:44
  Speaker 1: of 2025 and this one was also signed by William
• 39:48
  Speaker 1: Thompson and Jeff Nye. All of the information, including my
• 39:51
  Speaker 1: contact information, can be found in the description box.