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Murder In Moscow: Judge Hippler's Order On Bryan Kohberger's Capital Punishment Motions (Part 4) · Beyond The Horizon

• 0:00
  Speaker 1: What's up everyone, and welcome back to the program. In
• 0:03
  Speaker 1: this episode, we're picking up where we left off with
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  Speaker 1: Judge Hitler's order in regards to Brian Kolberger's motions to
• 0:10
  Speaker 1: get rid of the death penalty. B the aggravator is
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  Speaker 1: not impermissibly vague or confusing. Defendant next argues that the
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  Speaker 1: propensity aggravator is impermissibly vague and confusing to the jury
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  Speaker 1: as it applies to evidence of mental illness. Defendant posits
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  Speaker 1: that a person's future dangerousness is invariably linked to that
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  Speaker 1: person's mental disturbances. Mental illness, however, is supposed to be
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  Speaker 1: viewed as a mitigating factor for death penalty purposes. Thus,
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  Speaker 1: juries are essentially asked to consider mental illnesses as both
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  Speaker 1: a mitigating and aggravating factor, rendering the evidence of a
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  Speaker 1: double edged sword. Citing to studies conducted by an American
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  Speaker 1: Bar Association task force created to study the subject of
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  Speaker 1: mental disability and the death penalty, defendant points out that
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  Speaker 1: juries are confused by the double intention behind evidence of
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  Speaker 1: mental illness and typically apply it as an aggravator rather
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  Speaker 1: than a mitigator. Thus, he argues it should be stricken
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  Speaker 1: the United States Supreme Court recognizes the dilemma described by
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  Speaker 1: defendant in Penry versus Linnai when it noted that the
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  Speaker 1: defendant's mental retardation and history of abuse is thus a
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  Speaker 1: two edged sword. It may diminish his blameworthiness for his crime,
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  Speaker 1: even as it indicates that there is a probability that
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  Speaker 1: it will be dangerous in the future. With such double
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  Speaker 1: edged evidence, an instruction must be given to the jury
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  Speaker 1: to consider and give effect to mitigating evidence, as it
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  Speaker 1: bears on the extent to which the defendant is undeserving
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  Speaker 1: of a death sentence. As illustrated in Penry, double edged
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  Speaker 1: evidence is dealt with through instructions on the mitigation side,
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  Speaker 1: not through striking an aggravator. Defendant is cited not one
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  Speaker 1: case in which the propensity the aggravator was stricken as
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  Speaker 1: a result of potential jury confusion in weighing double edged evidence. Additionally,
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  Speaker 1: as the State points out, defendant has not filed notice
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  Speaker 1: under ICJ eighteen two seven that he will be relying
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  Speaker 1: on a mental condition, and there is no indication by
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  Speaker 1: either party that evidence of mental illness will be presented
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  Speaker 1: at sentencing. Consequently, the motion is not ripe, and even
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  Speaker 1: if it were striking. The aggravator is not the solution
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  Speaker 1: see the aggravator is relevant. Defendant finally argues that future
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  Speaker 1: dangerousness is not relevant to culpability and should be stricken.
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  Speaker 1: To this end, he observes that the Eighth Amendment requires
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  Speaker 1: that defendants only be condemned to die if they are
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  Speaker 1: deserving based on their culpability, not their dangerousness. Because a
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  Speaker 1: person's propensity to commit murder in the future has no
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  Speaker 1: bearing on culpability, defendant contends future dangerousness can only be
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  Speaker 1: considered if at all, after the jury has already found
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  Speaker 1: a different statutory aggravator applies. Defendant's argument, however, fails to
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  Speaker 1: recognize that a defendant's future dangerousness has long been a
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  Speaker 1: sentencing consideration which places an emphasis on culpability California verse Brown,
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  Speaker 1: four seventy nine, nineteen eighty seven, noting an emphasis on
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  Speaker 1: culpability and sentencing decisions has long been reflected in Anglo
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  Speaker 1: American jurisprudence. In Simmons versus South Carolina, the United States
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  Speaker 1: Supreme Court observed this court has approved the jury's consideration
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  Speaker 1: of future dangerousness during the death penalty phase of a
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  Speaker 1: capital trial, recognizing that a defendant's future dangerousness bears on
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  Speaker 1: all sentencing determinations made in our criminal justice system. See
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  Speaker 1: Jerik vers. Texas for twenty eight, nineteen seventy six, joint
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  Speaker 1: opinion of Stuart Powell and Stephens JJ, noting that any
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  Speaker 1: sentencing authority must predict a convicted person's probable future conduct
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  Speaker 1: when an in gauges in the process of determining what
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  Speaker 1: punishment to impose. California verus Ramos for sixty three, nineteen
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  Speaker 1: eighty three, explaining that it's proper for sentencing jury in
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  Speaker 1: a capital case to consider the defendant's potential for reform
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  Speaker 1: and whether is probable future behavior counsels against the desirability
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  Speaker 1: of his release into society. As the Stay points out,
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  Speaker 1: the protection of society is the primary consideration and fashioning
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  Speaker 1: a sentence for criminal defendants. A capital defendant's future dangerousness therefore,
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  Speaker 1: is directly relevant to whether he or she is culpable
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  Speaker 1: for sentencing purposes. In some of the court finds, the
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  Speaker 1: propensity aggravator is sufficiently narrow to encompass only a select
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  Speaker 1: set of murderers. The jury will not be misled or
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  Speaker 1: confused as to its application as to it relates to
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  Speaker 1: evidence of mental illness, and its relevant culpability. Consequently, defendants
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  Speaker 1: motion is denied for multiple victims aggravator. The multiple victims
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  Speaker 1: aggravator applies when, at the time of the murder was committed,
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  Speaker 1: the defendant also committed another murder I see Section nineteen
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  Speaker 1: twenty five point fifteen nine toe B. Seeking to strike
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  Speaker 1: this aggravator, defendant contends it fails to speak to the
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  Speaker 1: severity of the crime, it violates the prohibition on double
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  Speaker 1: counting aggravator evidence, and it impermissibly scores victims. The court
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  Speaker 1: is not persuaded by these arguments. A the aggravator is
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  Speaker 1: relevant to culpability. With regard to the first argument, defendant
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  Speaker 1: contends murders cannot be aggregated in a manner that makes
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  Speaker 1: the act of malice a forethought murder aggravated. To this end,
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  Speaker 1: while he acknowledges that this aggravator is intuitive and widely adopted,
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  Speaker 1: he contends that standing alone, it fails to focus on
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  Speaker 1: the degree of the crime, and it allows for the
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  Speaker 1: imposition of the death penalty simply because there were two
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  Speaker 1: victims without any additional evidence. That game gives insight into
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  Speaker 1: the culpability of the defendant. Thus, to render the act
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  Speaker 1: of two murders aggravated, the jury must necessarily resort to
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  Speaker 1: one of the other aggravators. However, as the state points out,
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  Speaker 1: defendant's argument is essentially a public policy argument, lacking any
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  Speaker 1: legal authority at all. Indeed, an asserting that there is
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  Speaker 1: no way in which two murders can be aggregated in
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  Speaker 1: a way that makes the act of murder aggravated except
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  Speaker 1: a resort to one of the other aggravators. Defendant refers
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  Speaker 1: to a law review article which states no such thing.
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  Speaker 1: In fact, it identifies multiple victims as legally relevant factors
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  Speaker 1: influencing the punishment decision. In capital cases B, the aggravator
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  Speaker 1: does not permit double counting. Additionally, the multiple victim aggravator
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  Speaker 1: does not violate the prohibition on double counting aggravator evidence.
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  Speaker 1: This prohibition, typically given as a jury instruction I see
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  Speaker 1: Ji seventeen twenty three, allows a jury in considering a
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  Speaker 1: particular aggravator to consider the same evidence it previously considered
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  Speaker 1: for a different aggravator, so long as it finds additional
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  Speaker 1: aggravating evidence to support a finding of the particular aggravator
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  Speaker 1: beyond a reasonable doubt Abdullah one fifty eight, Idaho at
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  Speaker 1: eighty five. This rule is based on the presumption that
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  Speaker 1: the legislature did not intend to duplicate aggravating circumstances. Defendant notes, however,
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  Speaker 1: that the multiple victim aggravator has no additional aggravating evidence,
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  Speaker 1: and therefore it's not possible for the jury to properly
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  Speaker 1: consider it. This argument assumes the jury will rely solely
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  Speaker 1: on the fact of multiple victims. For the other statutory aggravators,
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  Speaker 1: the state represents it intends to prevent sufficient evidence on
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  Speaker 1: all the applicable statutory aggravators to prevent the jury from
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  Speaker 1: double counting. In other words, the jury can find the
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  Speaker 1: multiple victim aggravator met and still used the evidence of
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  Speaker 1: multile murders in finding the other statutory aggravators met because
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  Speaker 1: there will be other evidence if they are not persuaded
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  Speaker 1: by the other evidence. I see Ji seventeen twenty three
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  Speaker 1: instructs them not to make any finding that the aggravator
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  Speaker 1: is met. See the aggravator does not constitute victims scoring. Finally,
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  Speaker 1: defendant argues the multiple murder aggravator effectively scores murder victims
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  Speaker 1: by saying a single dead person is not as valuable
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  Speaker 1: as two. He notes that the United States Supreme Court
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  Speaker 1: rejected scoring murder victims on a value scale in Booth
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  Speaker 1: versus Maryland. Booth, however, addresses this issue with regard to
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  Speaker 1: victim impact evidence, which the Court was concerned would permit
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  Speaker 1: a jury to find that defendant whose victims where assets
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  Speaker 1: to their community are more deserving of punishment than those
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  Speaker 1: who are victims that are perceived to be less worthy.
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  Speaker 1: The multiple victim aggravator relies solely on the numbers of victims,
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  Speaker 1: not on the victim's impact evidence. Thus, the concern of
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  Speaker 1: comparative judgment articulated in Booth is simply not possible. In
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  Speaker 1: some the Court finds that the multiple victims aggravator is
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  Speaker 1: relevant to culpability, does not result in double counting aggravating
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  Speaker 1: evidence when provided with icj I seventeen twenty three, and
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  Speaker 1: does not result in a comparison of victim worth. Consequently,
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  Speaker 1: Defendant's motion is denied s motion to strike State's notice
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  Speaker 1: on grounds of failure to present aggravators to a neutral FactFinder.
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  Speaker 1: Defendant seeks to strike the death penalty on grounds that
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  Speaker 1: Idaho's capital scheme that's far too much discretion and the
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  Speaker 1: prosecutor in determining whether to pursue the death penalty, thus
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  Speaker 1: rendering it an arbitrary and unconstitutional process. He argues that
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  Speaker 1: the fifth, eighth, and fourteenth Amendments to the United States Constitution,
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  Speaker 1: Article I, Section six, and thirteen to the Idaho Constitution
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  Speaker 1: require that the eligibility in selection decisions i e. Whether
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  Speaker 1: it's statute orrey aggravator is present and whether it is
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  Speaker 1: outweighed by mitigating circumstances first be presented to a grand
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  Speaker 1: jury before the prosecutor can formally pursue the death penalty.
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  Speaker 1: While he acknowledges the weight of the case, law from
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  Speaker 1: both the United States Supreme Court and the Idoh Supreme
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  Speaker 1: Court is against him, he argues these cases must be overruled.
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  Speaker 1: The State responds that the defendant's argument is squarely foreclosed
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  Speaker 1: by binding precedent. The court agrees one well settled law
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  Speaker 1: mandates that the Fifth Amendment's indictment clause does not apply
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  Speaker 1: to the States. Defendant's argument begins with the premise that
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  Speaker 1: the indictment clause of the Fifth Amendment of the United
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  Speaker 1: States Constitution should be afforded to the states that clause
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  Speaker 1: provides no person be held to answer for a capital
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  Speaker 1: or otherwise infamous crime unless a presentment or indictment of
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  Speaker 1: grand jury. US Constitutional Amendment five. It was adopted by
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  Speaker 1: the framers in part in recognition of the importance the
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  Speaker 1: grand jury played and protect the citizens from unfounded accusation
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  Speaker 1: by the government. The indictment clause binds only the federal government.
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  Speaker 1: In Hurtado versus California, the United States Supreme Court considered
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  Speaker 1: whether the clause applied to the States through the Fourteenth
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  Speaker 1: Amendment for a capital offense. The Court held that it
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  Speaker 1: did not, noting that the grand jury screening was not
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  Speaker 1: essential to preserving that spirit of personal liberty and individual
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  Speaker 1: right which shaped the common law and was ultimate concern
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  Speaker 1: of due process. In so holding, the Court relied heavily
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  Speaker 1: on historical evidence, suggesting that prosecution by indictment or presentment
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  Speaker 1: had never been viewed as the only means for initiating
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  Speaker 1: prosecutions that accorded with core values of the common law.
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  Speaker 1: The Court observed that as long as the state provides
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  Speaker 1: in advance of instituting a felony prosecution, some threshold procedure
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  Speaker 1: that comports with fundamental principles of liberty and justice and
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  Speaker 1: secures the individual from the arbitrary exercise of the powers
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  Speaker 1: of God government. The Fourteenth Amendments due process guarantee is
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  Speaker 1: satisfied according to the Court, an adversarial preliminary hearing before
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  Speaker 1: a magistrate meets this standard. Defendant contends her Toddle failed
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  Speaker 1: to consider important underpinnings of the Fifth and Fourteenth Amendments,
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  Speaker 1: including the importance of grand jury, how it came to
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  Speaker 1: be required by the Fifth Amendment, and whether it was
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  Speaker 1: considered as part of due process when the Fourteenth Amendment
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  Speaker 1: was adopted. An examination of these factors will, according to defendant,
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  Speaker 1: reveal the grand jury's primary function was not to establish
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  Speaker 1: probable cause, but to exercise discretion as to what cases
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  Speaker 1: were worth pursuing in the first place. In so arguing,
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  Speaker 1: Defendant sites to more recent United States Supreme Court case
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  Speaker 1: law recognizing the importance of the grand Jury Act as
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  Speaker 1: a check on prosecutorial power, Defendant contends. Defendant contends this
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  Speaker 1: vital role is not fulfilled at a preliminary hearing before
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  Speaker 1: a magistrate, and is an increasing important role to f
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  Speaker 1: phil given the fact that prosecutors with unhampered discretion tend
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  Speaker 1: to overcharge cases to course. Please. It is, not, however,
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  Speaker 1: for this Court to second guess Hurtado, which has remained
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  Speaker 1: unquestioned precedent for nearly one hundred and fifty years. Further,
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  Speaker 1: Defendant ignores the fact that Hurtado was based in part
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  Speaker 1: on the Court's view that an adversarial preliminary hearing before
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  Speaker 1: a magistrate was sufficient to protect citizens from the arbitrary
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  Speaker 1: exercise of governmental power, which would include misplaced prosecutorial charging discretion.
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  Speaker 1: In other words, the Court's concern was not solely with
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  Speaker 1: ensuring the existence a probable cause, but to protect more
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  Speaker 1: globally against an abuse of power by a prosecutor, something
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  Speaker 1: according to Hurtado, proceedings before a magistrate could accomplish just
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  Speaker 1: as well as a grand jury. Therefore, there is nothing
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  Speaker 1: to be gained by applying the Fifth Amendment to the States.
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  Speaker 1: All right, we're going to wrap up right here, and
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  Speaker 1: in the next episode we're going to pick up with
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  Speaker 1: two vesting charging discretion in the prosecutor does not violate
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  Speaker 1: the Eighth Amendment. All of the information that goes with
• 14:07
  Speaker 1: this episode can be found in the description box