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Murder In Moscow: Judge Hippler's Order On Bryan Kohberger's Capital Punishment Motions (Part 3) · Beyond The Horizon

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  Speaker 1: What's up everyone, and welcome back to the program. In
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  Speaker 1: this episode, we're getting right back to Judge Hibbler's order
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  Speaker 1: up at Moscow. In regards to the death penalty motions
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  Speaker 1: file by Brian Coolberger, b icee JI seventeen fourteen is
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  Speaker 1: consistent with case law. The utter disregard standard is set
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  Speaker 1: forth and I see JI seventeen fourteen and its states
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  Speaker 1: exhibited utter disregard for human life with regard to the
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  Speaker 1: murder or the circumstances surrounding its commission refers to acts
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  Speaker 1: or circumstances surrounding the crime that exhibit the highest, the
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  Speaker 1: utmost callous disregard for human life. The cold blooded pitiless
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  Speaker 1: slayer cold blooded means marked by absence of warm feeling,
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  Speaker 1: without consideration, compunction, or a clemency matter of fact or
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  Speaker 1: Emotionless pitiless means devoid or unmoved by mercy or compassion.
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  Speaker 1: A cold blooded pitiless slayer refers to a slayer who
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  Speaker 1: killed without feeling or sympathy. The utter disregard factor refers
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  Speaker 1: to the defendant's lack of conscience regarding killing of another
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  Speaker 1: human being. This language was directly taken from the jury
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  Speaker 1: instruction provided in Abdullah, which the Idaho Supreme Court affirmed
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  Speaker 1: as both accurate and constitutional one fIF eight Idaho at.
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  Speaker 1: Seventy eight. Nevertheless, defendant challenges I see Ji seventeen fourteen
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  Speaker 1: on grounds that attracts too closely with ic Ji seventeen
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  Speaker 1: thirteen for the hack aggravator by focusing on the defendant
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  Speaker 1: state of mind and additionally ignores the legislature's intent that
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  Speaker 1: the killing is done recklessly. But both arguments fail. The
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  Speaker 1: Court approaches these arguments with the presumption that the ic
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  Speaker 1: jis are presumptively correct state verse Man twenty seventeen. While
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  Speaker 1: ice Ji seventeen thirteen also focuses on a defendant state
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  Speaker 1: of mind in instructing on the Hawk agris, it is
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  Speaker 1: through a distinctly different lens, and in fact, the Idaho
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  Speaker 1: Supreme Court has found the two aggravators are not duplicative
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  Speaker 1: see Would at one thirty two Idaho. One oh four
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  Speaker 1: nine sixty seven pt. Two d At seven eighteen, noting
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  Speaker 1: it was clear from prior cases that the two aggravating
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  Speaker 1: factors were distinct. Further, in Osborne, the Court acknowledged the
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  Speaker 1: HAC and Utter disregard aggravators could overlap and therefore held
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  Speaker 1: that the phrase utter disregard be viewed in reference to
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  Speaker 1: acts other than those set forth in other statutory aggravators. Hence,
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  Speaker 1: the jury will also be instructed that the same facts,
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  Speaker 1: without more cannot be relied on to find more than
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  Speaker 1: the statutory aggravating circumstances beyond a reasonable doubt. Together, these
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  Speaker 1: instructions ensure that, to the extent that there is a
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  Speaker 1: potential for overlapping evidence between the utter disregard and HAC aggravators,
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  Speaker 1: the jury is to consider it only once, as the
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  Speaker 1: defendant's recklessness argument. Had the legislature intended to import this
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  Speaker 1: standard into the other disregard aggravator, it could have done so,
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  Speaker 1: as it did with two other statutory aggravators. The fact
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  Speaker 1: that did not indicates the legislature intended a different standard
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  Speaker 1: to apply than recklessness. In some The Court finds the
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  Speaker 1: limiting construction applied by the Idaho Supreme Court to the
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  Speaker 1: utter disregard statutory aggravator does not contravene the separation of
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  Speaker 1: powers doctrine or verska, nor does ic JI seventeen fourteen
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  Speaker 1: misconstrue the statute or duplicate the HAC limiting construction consequently,
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  Speaker 1: defendant's motion is denied to HAC aggravator. The HAC aggravator
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  Speaker 1: applies when the murder was especially heinous, atrocious, or cruel,
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  Speaker 1: manifesting exceptional depravity. IC Section nineteen twenty five fifteen nine
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  Speaker 1: in e in Osborne or in the Idaho Supreme Court
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  Speaker 1: applied a limiting construction to this aggravator using language adopted
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  Speaker 1: from other states. Regarding the especially heinous, atrocious, or cruel
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  Speaker 1: portion of the aggravator, the court adopted the following language
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  Speaker 1: from the Florida Supreme Court. Heinis means extremely wicked or
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  Speaker 1: shockingly evil, that atrocious means outrageously wicked and vile, and
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  Speaker 1: that cruel means designed to inflict a high degree of
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  Speaker 1: pain with utter indifference to or even enjoyment of the
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  Speaker 1: suffering of others. What is intended to be included are
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  Speaker 1: those capital crimes where the actual commission of the capital
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  Speaker 1: felony was accompanied by such additional acts as to set
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  Speaker 1: the crime apart from the norm of capital felonies. The
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  Speaker 1: consciouslessness or pitiless crime which is unnecessarily tortuous to the victim.
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  Speaker 1: With regard to the manifesting exceptional depravity portion of the aggravator.
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  Speaker 1: The Court adopted the following from the Nebraska Supreme Court
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  Speaker 1: in interpreting this portion of the s Statute. The key
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  Speaker 1: word is exceptional. It might be argued that every murder
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  Speaker 1: involves depravity. The use of the word exceptional, however, confines
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  Speaker 1: it only to those situations where depravity is apparent to
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  Speaker 1: such an extent as to obviously offend all standards of
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  Speaker 1: morality and intelligence. The Court found this limiting construction removed
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  Speaker 1: any vagueness from the HAC aggravator, rendering it sufficiently definite
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  Speaker 1: and limited to guide the sentencing court's discretion in imposing
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  Speaker 1: the death penalty. Subsequently, the Court upheld this language as
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  Speaker 1: constitutional Puzzuto one nineteen, Idaho. At. Seven eleven. Charboneau one
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  Speaker 1: sixteen one twenty nine, seven seventy four. The Ninth Circuit
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  Speaker 1: likewise found the construction constitutionally sufficient Levitt versus Agravi three
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  Speaker 1: eighty three ft three d. Eight oh nine, two thousand
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  Speaker 1: and four. See also Hall one sixty three, Idaho. At
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  Speaker 1: ten eighty five four. Observing the HAC aggravator with the
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  Speaker 1: limiting construction has been determined constitutional time and time again.
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  Speaker 1: A neither Verska nor the separation of powers doctrine precludes
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  Speaker 1: the limiting construction. As with the utter disregard aggravator. Defendant
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  Speaker 1: contends the HAC aggravator must be stricken because the limiting
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  Speaker 1: construction violates the separation of powers in Verska. For the
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  Speaker 1: same reasons that argument failed for the utter disregard aggravator,
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  Speaker 1: it fails here b ic Ji seventeen thirteen is consistent
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  Speaker 1: with case law. Additionally, defendant argues ic Ji seventeen thirteen
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  Speaker 1: fails to track with Osborne's limiting construction. Specifically, defending contends
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  Speaker 1: ic Ji seventeen thirteen does away with the limiting instruction
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  Speaker 1: on manifesting exceptional depravity, which Osborne defined as confined to
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  Speaker 1: situations where depravity is apparent to such an extent as
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  Speaker 1: to obviously offend all standards of morality and an intelligence. However,
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  Speaker 1: I see Ji seventeen thirteen is nearly identical to Osborne.
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  Speaker 1: The minimal difference between the two are legally inconsequential in
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  Speaker 1: some For reasons set forth. With regard to the utter
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  Speaker 1: disregard aggravator, the Court finds the limiting construction applied by
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  Speaker 1: the Idaho Supreme Court to the AHAC statutory aggravator does
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  Speaker 1: not contravene the separation of powers doctrine or verska. Additionally,
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  Speaker 1: the Court finds Ice Ji seventeen thirteen appropriately embodies that
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  Speaker 1: limiting construction. Consequently, Defendant's motion is denied. Three Future dangerousness
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  Speaker 1: propensity aggravator. The propensity aggravator applies when the defendant, by
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  Speaker 1: his conduct, whether such conduct was before, during, or after
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  Speaker 1: the commission of the murder at hand, has exhibited a
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  Speaker 1: propensity to commit murder which will probably constitute a continuing
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  Speaker 1: threat to society. The Idaho Supreme Court a held the
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  Speaker 1: propensity aggravator as constitutional, and in doing so provided a
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  Speaker 1: narrowing interpretation. It cannot be asserted that the propensity circumstance
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  Speaker 1: could conceivably be applied to every murderer coming before a
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  Speaker 1: court in this state. We would construe propensity to exclude,
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  Speaker 1: for example, a person who has no inclination to kill,
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  Speaker 1: but in an episode of rage, such as during an
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  Speaker 1: emotional family or lover's quarrel, commits the offensive murder. We
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  Speaker 1: would doubt that most of those convicted of murder would
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  Speaker 1: again commit murder, and rather we construe the propensity language
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  Speaker 1: to specify the person who is a willing predisposed killer,
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  Speaker 1: a killer who tends towards destroying the life of another,
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  Speaker 1: one who kills with less than the normal amount of provocation,
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  Speaker 1: we would hold the propensity assumes a proclivity, a susceptibility,
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  Speaker 1: and even an affinity towards committing the act of murder.
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  Speaker 1: Since Creach, the Idaho Supreme Court and Federal District Court
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  Speaker 1: have on multiple occasions upheld the constitutionality of the propensity
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  Speaker 1: aggravator when combined with this limiting construction, against challenges that
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  Speaker 1: it's vague and it is irrelevant to culpability and therefore
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  Speaker 1: cannot be an aggravator. As noted by the State, the
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  Speaker 1: Court does not have the ability to overrule Creach in
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  Speaker 1: its progeny affirming the aggravator's constitutionality and application Gusman Supra. However,
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  Speaker 1: even if the court had such ability, defendants arguments are
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  Speaker 1: not persuasive. A Creach limiting construction narrows the class of
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  Speaker 1: death eligible defendants. Defendant contends that the limiting construction applied
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  Speaker 1: in Creach excludes only those found guilty of voluntary manslaughter
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  Speaker 1: from its reach and effectively makes anyone who has found
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  Speaker 1: guilty of murder a candidate for death. He notes that
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  Speaker 1: murder is defined in Idaho in relevant part as the
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  Speaker 1: unlawful killing of a human being with till as a forethought,
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  Speaker 1: or the intentional application of torture to a human being
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  Speaker 1: which results in the death of a human being. Torture
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  Speaker 1: is the intentional infliction of extreme and prolonged pain with
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  Speaker 1: the intent to cause suffering. It shall also be torture
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  Speaker 1: to inflict on a human being extreme and prolonged acts
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  Speaker 1: of brutality, irrespective of proof of intent to cause suffering.
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  Speaker 1: He perfunctorily contends that creature is limiting construction captures all
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  Speaker 1: torturers within its ambit. Defendant additionally argues that the definition
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  Speaker 1: of malice a foe thoughts set forth in IC section
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  Speaker 1: eighteen four zero zero two corresponds exactly with that of
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  Speaker 1: the limiting construction, because both definitions rely on a lack
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  Speaker 1: of provocation and a propensity or inclination toward murder. Therefore,
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  Speaker 1: he contends the limiting construction provides no meaningful narrowing of
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  Speaker 1: murderers who may qualify under the propensity aggravator. Defendant is
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  Speaker 1: incorrect that the aggravator is limiting construction applies to every murder.
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  Speaker 1: Creach specifically states that the propensity aggravator does not apply
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  Speaker 1: to every murderer coming before the court in this state. Hence,
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  Speaker 1: I see Ji seventeen seventeen instructs that a finding that
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  Speaker 1: the defendant has a propensity to commit murder which will
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  Speaker 1: probably constitute a continuing threat to society, cannot be based
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  Speaker 1: solely upon the fact that you found the defendant guilty
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  Speaker 1: of murder. Additionally, defendant is incorrect that both rely on
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  Speaker 1: a lack of provocation. While one way to show malice
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  Speaker 1: is to demonstrate a lack of considerable provocation, it is
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  Speaker 1: not the only way. Moreover, the limiting construction requires that
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  Speaker 1: the murderer have an innate desire for the act of
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  Speaker 1: murder i e. Proclivity, a susceptibility, and even an affinity
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  Speaker 1: towards committing the act of murder. This far exceeds the
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  Speaker 1: malice definition. Finally, the aggravator itself requires a finding that
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  Speaker 1: a person probably constitutes a continuing threat to society. V.
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  Speaker 1: Section nineteen twenty five fifteen nine I. This is not
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  Speaker 1: a requirement for a finding of malice. A forethought. All right,
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  Speaker 1: we're gonna wrap up right there, and in the next
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  Speaker 1: episode we're gonna pick up with B. The Aggravator is
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  Speaker 1: not impermissibly vague or confusing. All of the information that
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  Speaker 1: goes with this episode can be found in the description box.