Latest / Beyond The Horizon / Mega Edition: Bryan Kohberger And The Motion To Strike The Notice Of Intent of Death Penalty (9/24/26)

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Mega Edition: Bryan Kohberger And The Motion To Strike The Notice Of Intent of Death Penalty (9/24/26) · Beyond The Horizon

• 0:01
  Speaker 1: What's up everyone and welcome back to the program. The
• 0:05
  Speaker 1: state of Idaho has made the decision to go after
• 0:09
  Speaker 1: the death penalty when it comes to Brian Koberger. This
• 0:13
  Speaker 1: comes as they make the filing with the court that
• 0:17
  Speaker 1: announces that they're going to pursue these capital punishment charges
• 0:22
  Speaker 1: and they announced in those filings that that the reason
• 0:26
  Speaker 1: that this case fits the standard for a capital punishment
• 0:30
  Speaker 1: case is because it was especially heinous and atrocious or cruel.
• 0:36
  Speaker 1: Today's article is from the Daily Mail, and the headline,
• 0:40
  Speaker 1: Idaho murder suspect Brian Koberger could face the death penalty
• 0:45
  Speaker 1: as prosecutors say they'll seek to have him executed for
• 0:48
  Speaker 1: especially heinous, atrocious, or cruel college student killings. This article
• 0:55
  Speaker 1: was authored by Harriet Alexander. And I don't think this
• 1:00
  Speaker 1: is a shock to anybody who's been following along. This
• 1:03
  Speaker 1: has always been the most likely of outcomes as far
• 1:07
  Speaker 1: as what the state wants to do. So I'm not
• 1:11
  Speaker 1: shocked at all to hear that they've announced that it's
• 1:14
  Speaker 1: going to be a capital punishment case. All of the
• 1:17
  Speaker 1: writing was on the wall. I mean, look at the
• 1:19
  Speaker 1: big shot lawyers that were brought in on both sides
• 1:21
  Speaker 1: that can handle capital punishment cases. And then you look
• 1:25
  Speaker 1: at the crime itself, and there was no way that
• 1:28
  Speaker 1: this wasn't going to be a capital punishment case. Brian
• 1:33
  Speaker 1: Kohlberger could be executed by the state of Idaho if
• 1:36
  Speaker 1: he is convicted of murdering four students, prosecutors confirmed on Monday,
• 1:42
  Speaker 1: noting the killings were especially heinous, atrocious, or cruel, manifesting
• 1:48
  Speaker 1: exceptional depravity. And I think that pretty much sums it up.
• 1:53
  Speaker 1: Any sick and twisted son of a bitch who's creeping
• 1:55
  Speaker 1: into somebody else's house to kill them certainly has the
• 1:58
  Speaker 1: size foot that fits in all of those shoes. And
• 2:01
  Speaker 1: if the evidence is there and it's available, then that
• 2:05
  Speaker 1: person should be convicted and given the death penalty. Kohlberger, 28,
• 2:11
  Speaker 1: is accused in the November 13 killings in the town
• 2:14
  Speaker 1: of Moscow of Kaylee Gonsalves, Madison Mogan, Zanna Kernodle, and
• 2:19
  Speaker 1: Ethan Chapin. The four students were found stabbed to death
• 2:23
  Speaker 1: in their beds in the home that they shared in
• 2:25
  Speaker 1: the college town. The case shocked and terrified the small community. Kohlberger,
• 2:31
  Speaker 1: a criminal psychology student, was arrested on December 30th at
• 2:35
  Speaker 1: his family home in Pennsylvania. And not a criminal psychology student,
• 2:40
  Speaker 1: but he was a criminologist who was going after his PhD.
• 2:45
  Speaker 1: So a little bit more advanced than just a criminal
• 2:48
  Speaker 1: psychology student, no? On Monday, Prosecutors informed the judge that
• 2:52
  Speaker 1: they intended to seek the death penalty. The Latah County
• 2:57
  Speaker 1: Prosecutor's Office informed the court they would seek the death
• 3:00
  Speaker 1: penalty because the killings were especially heinous, atrocious, or cruel,
• 3:05
  Speaker 1: manifesting exceptional depravity. Prosecutors stated the death penalty was appropriate
• 3:12
  Speaker 1: because there were multiple victims, the defendant exhibited utter disregard
• 3:17
  Speaker 1: for human life, the defendant acted with reckless indifference to
• 3:22
  Speaker 1: human life, and the defendant represents a threat to society. Yes, yes, yes,
• 3:27
  Speaker 1: and yes. If he is the man who is responsible
• 3:31
  Speaker 1: for these murders, then he has no place in society.
• 3:35
  Speaker 1: And who the hell wants to pay for him for
• 3:37
  Speaker 1: the next 45 years as he enjoys fan mail and
• 3:41
  Speaker 1: all of the rest of the nonsense that comes with
• 3:43
  Speaker 1: the BS that he pulled? Instead, I hope that there
• 3:46
  Speaker 1: is a quick conviction and remember this is if he's guilty.
• 3:50
  Speaker 1: Then after that conviction, I hope that the sentence is
• 3:53
  Speaker 1: carried out in a swift manner. The people of Idaho
• 3:57
  Speaker 1: and the victim's families deserve that justice. Prosecutors added that
• 4:02
  Speaker 1: they had not been provided with any mitigating circumstances that
• 4:06
  Speaker 1: could be used to argue why Kohlberger shouldn't be put
• 4:09
  Speaker 1: to death. News Nation reported prosecutors. have met with the
• 4:13
  Speaker 1: victim's families to discuss the matter with Kernodle's mother, Kara Northington,
• 4:18
  Speaker 1: favoring prison for life for Kohlberger if he is convicted.
• 4:22
  Speaker 1: Her father, Jeff, on the other hand, is reportedly in
• 4:26
  Speaker 1: favor of the death penalty for the alleged killer. And
• 4:29
  Speaker 1: imagine it was your kid. I don't know how you're
• 4:31
  Speaker 1: not for the death penalty. If it was my kid
• 4:35
  Speaker 1: who was killed by this madman, yep, death penalty it is.
• 4:39
  Speaker 1: And if the state didn't want to waste the resources,
• 4:42
  Speaker 1: I'd gladly step up and do it for them. And
• 4:45
  Speaker 1: that's coming from somebody who doesn't even have kids, so
• 4:48
  Speaker 1: I can't even imagine how you parents out there would feel.
• 4:51
  Speaker 1: I know that the vast majority of you would take
• 4:53
  Speaker 1: somebody like this apart piece by piece if they hurt
• 4:57
  Speaker 1: your daughter, and in my opinion, you'd be justified in
• 5:00
  Speaker 1: doing so. The Gonsalveses and the Mogans are also in
• 5:04
  Speaker 1: favor of the death penalty, and the Chapins have not
• 5:07
  Speaker 1: made their position public. And I doubt that the Chapins
• 5:10
  Speaker 1: are going to come out, especially in public, and talk
• 5:13
  Speaker 1: about how they're in favor of the death penalty. They
• 5:16
  Speaker 1: said they were going to focus on positives and focus
• 5:20
  Speaker 1: on Ethan's legacy. So that's what they've been doing, and
• 5:23
  Speaker 1: I don't expect them to deviate from that course. On Thursday,
• 5:27
  Speaker 1: lawyers for Kohlberger claimed DNA evidence from two other men
• 5:31
  Speaker 1: was found at the scene. The attorney said there was
• 5:34
  Speaker 1: no connection between their client and the students fatally stabbed.
• 5:38
  Speaker 1: in their off-campus Moscow home. There is no connection between Mr.
• 5:43
  Speaker 1: Kohlberger and the victims, read the filing by attorney Jay Logsdon.
• 5:48
  Speaker 1: There is no explanation for the total lack of DNA
• 5:51
  Speaker 1: evidence from the victims in Mr. Kohlberger's apartment, office, home,
• 5:56
  Speaker 1: or vehicle. Well, he did take the long way home
• 5:59
  Speaker 1: through a very desolate area. What did he get rid of?
• 6:02
  Speaker 1: Did he have a burn pit? Did he have a
• 6:04
  Speaker 1: burial ground where he got rid of evidence? All of
• 6:07
  Speaker 1: that's possible. Remember, they haven't found the murder weapon yet either.
• 6:11
  Speaker 1: And the no connection to the murdered victims, I just
• 6:14
  Speaker 1: don't buy that, as I stated earlier. Like I said earlier,
• 6:18
  Speaker 1: I think that Kohlberger was following at least Madison around,
• 6:22
  Speaker 1: and I think the origin of that was at the
• 6:25
  Speaker 1: Mad Greek, as we have heard from sources close to
• 6:29
  Speaker 1: the case, or at the very least sources that People
• 6:31
  Speaker 1: magazine say are close to the case. The filing states
• 6:36
  Speaker 1: that by December 17th, 2022, lab analysts were aware of
• 6:40
  Speaker 1: two additional males' DNA within the house where the deceased
• 6:45
  Speaker 1: were located. And that's important. Just because there's DNA in
• 6:48
  Speaker 1: this house doesn't mean that it's DNA that was at
• 6:52
  Speaker 1: the crime scene itself. And we know that there's going
• 6:55
  Speaker 1: to be a ton of DNA in this house from
• 6:58
  Speaker 1: unknown males, from unknown people in general. How many parties
• 7:02
  Speaker 1: were at this house? How many kickbacks? How many times
• 7:05
  Speaker 1: were people over just having a few drinks? So the
• 7:08
  Speaker 1: fact that there's other DNA profiles is not shocking. We
• 7:12
  Speaker 1: talked about this at the very beginning, how this was
• 7:15
  Speaker 1: going to be a mess of DNA for everybody involved
• 7:19
  Speaker 1: and how there's going to be a lot of work
• 7:21
  Speaker 1: in front of the forensic teams. But with that said,
• 7:25
  Speaker 1: just because you have DNA profiles present at the scene
• 7:29
  Speaker 1: doesn't mean that it's directly in the room or certainly
• 7:33
  Speaker 1: not on that knife sheath. And until that can be explained,
• 7:37
  Speaker 1: the DNA on that knife sheath, then they're going to
• 7:39
  Speaker 1: have a hard time convincing me of any of this
• 7:42
  Speaker 1: other stuff. The defense team said a second man's DNA
• 7:46
  Speaker 1: was found inside the Moscow home and that police allegedly
• 7:49
  Speaker 1: found DNA from a third man's DNA on a glove
• 7:52
  Speaker 1: discovered outside the home. So a glove outside the home
• 7:57
  Speaker 1: Is indicative that that person who owned the glove was
• 8:00
  Speaker 1: involved in the murder? And they just happened to drop
• 8:02
  Speaker 1: that glove there? Highly doubt that glove has anything to
• 8:06
  Speaker 1: do with these murders. However, they have to do their
• 8:09
  Speaker 1: due diligence, right? And if the defense feels like it's
• 8:12
  Speaker 1: something they can sink their teeth into, you better believe
• 8:16
  Speaker 1: it's going to be Pitbull City. To this date, the
• 8:19
  Speaker 1: defense is unaware of what sort of testing, if any,
• 8:21
  Speaker 1: was conducted on these samples other than STR DNA profiles.
• 8:27
  Speaker 1: The filing, an objection to the state's motion for a
• 8:30
  Speaker 1: protective order, argued the defense team should have access to
• 8:34
  Speaker 1: all the data and investigative genetic genealogy that led prosecutors
• 8:38
  Speaker 1: to claim Kohlberger's DNA collected with a buccal swab was
• 8:43
  Speaker 1: a statistical match to DNA found on a knife sheath
• 8:46
  Speaker 1: discovered at the scene. Earlier this month, prosecutors claimed DNA
• 8:51
  Speaker 1: on a knife sheath left at the Idaho murder scene
• 8:54
  Speaker 1: is a statistical match to a cheek swab taken from
• 8:58
  Speaker 1: the suspect. Now, we also heard from Stephen Mercer, who
• 9:03
  Speaker 1: gave his declaration in support of Brian Koberger, and why
• 9:07
  Speaker 1: the prosecution needs to be more forthcoming with whatever DNA
• 9:11
  Speaker 1: testing results that they have. And for me, I think
• 9:14
  Speaker 1: it's very important that we have as much context and
• 9:17
  Speaker 1: as much information from both sides as possible. That way,
• 9:21
  Speaker 1: we have all of the tools available to us to
• 9:23
  Speaker 1: make an informed opinion about what's going on. The FBI
• 9:28
  Speaker 1: said they use databases in publicly held DNA sites similar
• 9:32
  Speaker 1: to 23andMe. Prosecutors previously argued Koberger had no right to
• 9:39
  Speaker 1: FBI data uncovered from the method. In their filing, the
• 9:43
  Speaker 1: defense team said, perhaps unsurprisingly, Mr. Koberger does not accept
• 9:48
  Speaker 1: that his defense does not need this information. The state
• 9:52
  Speaker 1: apparently only wants to prevent Mr. Koberger from seeing how
• 9:56
  Speaker 1: the investigative genetic genealogy profile was created and how many
• 10:00
  Speaker 1: other people the FBI chose to ignore during their investigation. Look,
• 10:05
  Speaker 1: I believe that he should have all of that information.
• 10:08
  Speaker 1: I think that all of this should be given to
• 10:10
  Speaker 1: his team and let his team take a look at it.
• 10:12
  Speaker 1: That way, they can't complain later on down the road
• 10:16
  Speaker 1: that anything was withheld. And also remember, now that this
• 10:20
  Speaker 1: is a death penalty case, the burden of proof is
• 10:23
  Speaker 1: much higher, as it should be. If we're talking about
• 10:26
  Speaker 1: the state putting anybody to death, the burden of proof
• 10:30
  Speaker 1: has to be a very high bar. And unless that
• 10:32
  Speaker 1: burden of proof is met, then it should not be
• 10:35
  Speaker 1: the death penalty. So with this filing, I think the
• 10:38
  Speaker 1: state certainly has all of their ducks in a row,
• 10:41
  Speaker 1: at least as they're concerned, and they're going to get
• 10:44
  Speaker 1: ready to go to the mattresses and go to war.
• 10:48
  Speaker 1: The filing accused the government of failing to release the
• 10:50
  Speaker 1: information because somehow people will stop sharing their genetics if
• 10:55
  Speaker 1: they were to realize the government is watching. Everybody knows this.
• 11:00
  Speaker 1: At this point in time, who the hell doesn't have
• 11:02
  Speaker 1: a relative that's in the DNA database? I've had several
• 11:06
  Speaker 1: relatives go to prison, forget it. I could never get
• 11:09
  Speaker 1: away with a crime. I'd come back as a match
• 11:11
  Speaker 1: right away. So what sort of nincompoop is giving out
• 11:14
  Speaker 1: their genetic information to one of these websites and thinking
• 11:19
  Speaker 1: that they even have a little bit of privacy? Detectives
• 11:22
  Speaker 1: found a K-Bar knife sheath on the bed with the
• 11:25
  Speaker 1: bodies of Mogan and Gonsalves. The sheath was partially under
• 11:29
  Speaker 1: Mogan's body and the comforter on the bed, according to
• 11:33
  Speaker 1: a court document filed on June 16th. A sample of
• 11:37
  Speaker 1: DNA left on the sheath is at least 5.37 octillion,
• 11:42
  Speaker 1: that's with an O, times more likely to be seen
• 11:45
  Speaker 1: if the defendant is the source than if an unrelated
• 11:49
  Speaker 1: individual randomly selected from the general population is the source,
• 11:54
  Speaker 1: prosecutors said in the filing. Sounds pretty strong to me.
• 11:58
  Speaker 1: When DNA is found at the scene of the crime
• 12:01
  Speaker 1: that does not belong to the victims, one of the
• 12:03
  Speaker 1: first things police do is run it through their own
• 12:06
  Speaker 1: database to check if it matches the DNA of any
• 12:09
  Speaker 1: previous offenders. This process is referred to as a short
• 12:14
  Speaker 1: tandem repeat comparison and tests the sample against 20 DNA markers,
• 12:20
  Speaker 1: enough to identify the person if their own DNA is
• 12:23
  Speaker 1: already in the system, or, in some cases, if the
• 12:27
  Speaker 1: DNA of an immediate relative is in the system, such
• 12:31
  Speaker 1: as a parent or a sibling. The former criminology student
• 12:35
  Speaker 1: last month chose to stand silent at his arraignment and
• 12:39
  Speaker 1: not guilty pleas were entered on his behalf. He is
• 12:43
  Speaker 1: charged with four counts of first degree murder and burglary.
• 12:47
  Speaker 1: And Koberger will also be making an appearance in the
• 12:50
  Speaker 1: courtroom tomorrow. So things are certainly evolving here day by
• 12:55
  Speaker 1: day and we're starting to get a better idea about
• 12:58
  Speaker 1: what strategy each side plans on using as they attempt
• 13:02
  Speaker 1: to prosecute and defend Brian Kohlberger. All right, folks, that's
• 13:07
  Speaker 1: going to do it for this one. and all of
• 13:09
  Speaker 1: the information that goes with the episode, including the Patreon page,
• 13:14
  Speaker 1: where starting July 1st, you'll be able to listen to
• 13:18
  Speaker 1: the new episodes each day without commercial interruption. So that
• 13:22
  Speaker 1: link will be in the description box, along with the
• 13:25
  Speaker 1: email address and the source where you can find the
• 13:28
  Speaker 1: original article. All right, folks, I'll catch you all on
• 13:32
  Speaker 1: the next one. What's up, everyone, and welcome back to
• 13:36
  Speaker 1: the program. In this episode, we're going to head back
• 13:39
  Speaker 1: out to Idaho and we're going to continue taking a
• 13:42
  Speaker 1: look at the Brian Koberger court documents that have recently
• 13:46
  Speaker 1: hit the docket. And to do that, we're going to
• 13:48
  Speaker 1: take a look at the motion to strike notice of
• 13:51
  Speaker 1: intent to seek the death penalty on grounds of failure
• 13:54
  Speaker 1: to present aggravators to neutral fact finder. Case number CR 29-22-2805.
• 13:59
  Speaker 1: State of Idaho plaintiff versus Brian C. Koberger, the defendant.
• 14:08
  Speaker 1: Comes now, Brian C. Koberger, by and through as attorneys
• 14:11
  Speaker 1: of record, hereby moves to strike the state's notice pursuant
• 14:14
  Speaker 1: to Idaho Code Section 19-4004A on the grounds that there
• 14:21
  Speaker 1: was no check on the decision of the prosecutor to
• 14:23
  Speaker 1: pursue the death penalty. This motion is based on the 5th, 8th,
• 14:27
  Speaker 1: and 14th Amendments of the Constitution of the United States
• 14:31
  Speaker 1: and Article 1, Section 6 and 13 of the Idaho Constitution.
• 14:36
  Speaker 1: The issue, 1. The Constitution requires neutral fact-finder to determine
• 14:41
  Speaker 1: where the death penalty may be pursued. The process provided
• 14:45
  Speaker 1: to Mr. Kohlberger up to this point has failed to
• 14:48
  Speaker 1: adequately protect him from being arbitrarily selected for the death
• 14:51
  Speaker 1: penalty in violation of the 8th and 14th Amendment in
• 14:55
  Speaker 1: that no check was placed on the discretion of that prosecutor.
• 14:59
  Speaker 1: The prosecutor has previously told this court, What the state
• 15:03
  Speaker 1: is trying to do is enforce the law that our
• 15:05
  Speaker 1: legislature has put in place that says in such cases,
• 15:09
  Speaker 1: as this, in facts like this, a jury is entitled
• 15:12
  Speaker 1: to decide not only guilt, but potential penalty. We are
• 15:16
  Speaker 1: simply trying to fulfill our responsibilities under the law. To
• 15:20
  Speaker 1: characterize it as the state is trying, is wanting, is
• 15:23
  Speaker 1: trying to kill someone, is just simply appealing to raw emotion,
• 15:27
  Speaker 1: and it has no place in this courtroom. However, as
• 15:31
  Speaker 1: the prosecutor knows from his own experience in refusing to
• 15:34
  Speaker 1: pursue the death penalty in State v. Lee, the decision
• 15:37
  Speaker 1: to pursue the death penalty falls entirely and unreservedly to
• 15:41
  Speaker 1: his own personal decision. See Marty Trilhas, Idaho's death penalty
• 15:46
  Speaker 1: faces its own morality. A. Selecting candidates for death. In Idaho,
• 15:52
  Speaker 1: the decision to pursue the death penalty is the prosecutor's.
• 15:56
  Speaker 1: Idaho Code Section 18-4004 provides the penalty for first-degree murder
• 16:02
  Speaker 1: is death or life imprisonment but it may only be
• 16:05
  Speaker 1: death where the prosecutor files notice of their intent to
• 16:09
  Speaker 1: pursue death. Idaho Code Section 18-4004A provides the prosecutor may
• 16:16
  Speaker 1: drop their pursuit of the death penalty at any time,
• 16:19
  Speaker 1: and if they do so, death cannot be the outcome
• 16:22
  Speaker 1: of a case. The only limitation on the prosecutor's ability
• 16:26
  Speaker 1: to seek the death penalty, then, is that it be
• 16:29
  Speaker 1: a first-degree murder case, and that the prosecutor can find
• 16:32
  Speaker 1: one circumstance of the case called a statutory aggravator, listed
• 16:38
  Speaker 1: in IC Section 19-2515-9. As explained in detail in Professor
• 16:43
  Speaker 1: Cover's Narrowing Death Eligibility in Idaho, an Empirical and Constitutional Analysis,
• 16:49
  Speaker 1: due to the broad and vague nature of both what
• 16:52
  Speaker 1: constitutes murder and and what constitutes an aggravator, almost every
• 16:56
  Speaker 1: murder is eligible for the death penalty at law. Professor
• 16:59
  Speaker 1: Cover and her team analyzed first and second degree murder
• 17:03
  Speaker 1: cases in Idaho file between June 2002 and the end
• 17:06
  Speaker 1: of 2019. They found that 86-90% of all murder convictions
• 17:12
  Speaker 1: were factually first degree murder cases, and that 93-98% of
• 17:16
  Speaker 1: those factually first degree murder cases were eligible for the
• 17:19
  Speaker 1: death penalty under Idaho's scheme. In fact, the scope of
• 17:23
  Speaker 1: Idaho's death penalty is constitutionally defective in its own right,
• 17:28
  Speaker 1: as will be argued in a separate motion. Thus, there
• 17:31
  Speaker 1: is no jury entitlement to the death penalty. There is
• 17:34
  Speaker 1: only the decision of the prosecutor that sets the defendant
• 17:37
  Speaker 1: upon this path. The consequence of placing no check on
• 17:41
  Speaker 1: the prosecutor's discretion to seek the death penalty is a
• 17:44
  Speaker 1: system in which geography plays the largest role in determining
• 17:48
  Speaker 1: whether the accused will possibly be executed, as Justice Breyer found,
• 17:53
  Speaker 1: Some studies indicate that the disparity in changing reflects the
• 17:56
  Speaker 1: decision-making authority, the legal discretion, and ultimately the power of
• 18:00
  Speaker 1: the local prosecutor, c.e.g. Greg Goldshauser, prosecutorial discretion under resource constraints,
• 18:07
  Speaker 1: budget allocations, and local death-charging decisions. As will be shown,
• 18:12
  Speaker 1: the lack of a check on the discretion violates the Constitution. b.
• 18:17
  Speaker 1: Grand Jury Requirements of the Fifth Amendment The Fifth Amendment
• 18:21
  Speaker 1: requires that a grand jury pass upon any case involving
• 18:24
  Speaker 1: the death penalty. That right, as Mr. Koberger has argued previously,
• 18:29
  Speaker 1: was intended as a shield against the government run amok.
• 18:32
  Speaker 1: Motion to dismiss indictment on grounds of error in grand
• 18:35
  Speaker 1: jury instructions or in the alternative to remand for preliminary
• 18:40
  Speaker 1: hearing at page 7. It was so revered by the
• 18:43
  Speaker 1: colonists that Madison enshrined it in the Fifth Amendment, even
• 18:47
  Speaker 1: as Hamilton argued against it. Despite this, the Supreme Court
• 18:51
  Speaker 1: in Hurtado v. California determined that the amendment should not
• 18:55
  Speaker 1: apply to the states through the 14th Amendment. The Supreme
• 18:59
  Speaker 1: Court in Hurtado held that the grand jury requirement was
• 19:02
  Speaker 1: simply a choice made by the writers of the federal
• 19:04
  Speaker 1: constitution and certainly not one required by due process if
• 19:08
  Speaker 1: only because the words due process appear in a separate clause.
• 19:13
  Speaker 1: Hurtado 110 U.S. at 528 and 529, 534 and 35.
• 19:19
  Speaker 1: The court held that the words due process that appear
• 19:22
  Speaker 1: in the Fifth Amendment did not enshrine a particular form
• 19:26
  Speaker 1: of procedure and allowed for the growth of the law.
• 19:29
  Speaker 1: The court compared due process upon the insistence of the
• 19:32
  Speaker 1: defendant to the words law of the land in the
• 19:35
  Speaker 1: Magna Carta. The defendant's choice was a poor one, as
• 19:39
  Speaker 1: the court was easily able to show the many ways
• 19:42
  Speaker 1: in which criminal procedures in England had changed since the
• 19:45
  Speaker 1: year 1215. The court went on to hold that the
• 19:48
  Speaker 1: adversarial preliminary hearing before a magistrate afforded the liberties of
• 19:53
  Speaker 1: the defendant enough protection to qualify as due process. Strikingly,
• 19:58
  Speaker 1: the court in Hurtado does not discuss the function and
• 20:00
  Speaker 1: purpose of the grand jury or the circumstances behind the amendment.
• 20:05
  Speaker 1: In a sense, Hurtado was an affirmation of the sentiment
• 20:08
  Speaker 1: against the jury system that was common in the late
• 20:12
  Speaker 1: 19th century. For example, the court also stated in dicta
• 20:16
  Speaker 1: that jury trials were not required in criminal cases by
• 20:19
  Speaker 1: the Due Process Clause. The jury trial was already guaranteed
• 20:23
  Speaker 1: in Article III of the Constitution, and the guarantee appears
• 20:26
  Speaker 1: again in the Sixth Amendment, as the Supreme Court would
• 20:29
  Speaker 1: eventually hold in Duncan v. Louisiana. It's clear that due process,
• 20:35
  Speaker 1: as it was understood by those who wrote the Constitution,
• 20:38
  Speaker 1: required a jury trial in criminal cases. More recently, the
• 20:42
  Speaker 1: Supreme Court has found that all elements, sentencing factors, and
• 20:46
  Speaker 1: any other fact that a jury would need to find
• 20:49
  Speaker 1: at trial must be found by the grand jury in
• 20:51
  Speaker 1: federal cases under the Fifth Amendment. This holding was in
• 20:55
  Speaker 1: view of the court's recent jurisprudence on the importance of
• 20:58
  Speaker 1: the jury as a fundamental right of every citizen to
• 21:01
  Speaker 1: protect them against governmental abuses of power. In view of
• 21:05
  Speaker 1: the renewed interest In the intention behind the jury requirements
• 21:09
  Speaker 1: contained in the Constitution, this court should do what the
• 21:12
  Speaker 1: court in her title chose not to do. Consider the
• 21:15
  Speaker 1: function of the grand jury, how it came to be
• 21:18
  Speaker 1: specifically required in the Fifth Amendment, or whether it was
• 21:21
  Speaker 1: considered a part of due process when the Fourteenth Amendment
• 21:24
  Speaker 1: was adopted. This court will find that the grand jury
• 21:28
  Speaker 1: could not have been replaced by the preliminary hearing or
• 21:31
  Speaker 1: the probable cause findings of magistrates because the grand jury's
• 21:35
  Speaker 1: main function is was not the determination of probable cause,
• 21:38
  Speaker 1: but rather its ability to exercise discretion as to which
• 21:42
  Speaker 1: cases were worth pursuing as outlined above. Thus, by doing
• 21:46
  Speaker 1: away with the grand jury, those states that have done
• 21:49
  Speaker 1: so have simply left their citizens at the mercy of
• 21:52
  Speaker 1: the government. George Edwards wrote, There are many cases of
• 21:55
  Speaker 1: a trifling nature which are returned by the committing magistrates,
• 21:59
  Speaker 1: and when brought before the grand jury, the indictments are ignored.
• 22:03
  Speaker 1: In counties where the volume of business is small, It
• 22:06
  Speaker 1: would be of little consequence if the grand jury found
• 22:08
  Speaker 1: true bills in even these cases, but in counties where
• 22:12
  Speaker 1: the volume of business is large, and this is particularly
• 22:15
  Speaker 1: true of the great cities which frequently are coextensive with
• 22:19
  Speaker 1: the boundaries of the country, it if then becomes of
• 22:22
  Speaker 1: vital importance that there should be a tribunal to sift
• 22:25
  Speaker 1: through a great mass of cases, those which are too
• 22:28
  Speaker 1: trifling in their nature to require further prosecution. And this
• 22:33
  Speaker 1: is a duty which could not well devolve upon a
• 22:36
  Speaker 1: single officer, for unless testimony was heard by him, there
• 22:39
  Speaker 1: would be no feasible way to determine which cases should
• 22:42
  Speaker 1: be prosecuted and which should be ignored. If evidence is
• 22:46
  Speaker 1: therefore to be heard, it is wiser that it be
• 22:48
  Speaker 1: heard and considered by a body impartially selected from the
• 22:52
  Speaker 1: people than by a single officer whose training would incline
• 22:55
  Speaker 1: him to find those grounds upon which the prosecution might
• 22:58
  Speaker 1: be sustained. It's absurd to contend that in a government
• 23:02
  Speaker 1: such as ours, composed of a system of checks and balances,
• 23:05
  Speaker 1: a committing magistrate is an individual whose discretion does not
• 23:09
  Speaker 1: require review. They are chosen as a rule from men
• 23:13
  Speaker 1: who have but little knowledge of the law and whose
• 23:16
  Speaker 1: principal qualification is the political service rendered to their party
• 23:19
  Speaker 1: and not the personal fitness of the individual for office.
• 23:23
  Speaker 1: In a large number of cases, the warrant will be
• 23:25
  Speaker 1: issued by a magistrate known either to the prosecutor or
• 23:29
  Speaker 1: his counsel who invariably is selected because of the acquaintanceship.
• 23:33
  Speaker 1: That a defendant who is committed or held in bail
• 23:36
  Speaker 1: under such circumstances should be entitled to have a judgment
• 23:40
  Speaker 1: of the magistrate reviewed by a tribunal sufficiently large and
• 23:43
  Speaker 1: without personal interest in the case is but a reasonable requirement.
• 23:47
  Speaker 1: Not that the magistrate may have acted improperly or violated
• 23:51
  Speaker 1: the terms of his oath, but that prosecutors, which are
• 23:55
  Speaker 1: or may have been begun under such conditions, shall be
• 23:58
  Speaker 1: declared by an impartial body, to be well founded in fact,
• 24:01
  Speaker 1: before a defendant shall be obliged to answer. If it
• 24:05
  Speaker 1: is to be said the cases are similar in that
• 24:07
  Speaker 1: the grand jurors are laymen who review the decision of
• 24:10
  Speaker 1: a magistrate learned in the law, it may be answered
• 24:13
  Speaker 1: that the laymen review it not the law, but the
• 24:15
  Speaker 1: facts of the case, and as to those facts, all
• 24:19
  Speaker 1: the legal learning which the magistrate may possess will not
• 24:22
  Speaker 1: make him a better judge of the truth of the
• 24:24
  Speaker 1: facts for the credibility of the witnesses. These truths now
• 24:28
  Speaker 1: appear stronger than ever as the result of allowing career
• 24:31
  Speaker 1: prosecutors to determine who shall be accused. The people in
• 24:34
  Speaker 1: the courts grow cognizant of the fact that prosecutors with
• 24:38
  Speaker 1: unhampered discretion tend to overcharge cases to coerce pleas and
• 24:42
  Speaker 1: that the concept of prosecutorial discretion has become substantially eroded
• 24:47
  Speaker 1: by the self-selecting pool of modern prosecutors who file the
• 24:51
  Speaker 1: most serious charge that they can in every case presented
• 24:54
  Speaker 1: to them. Many of these issues are also discussed by
• 24:57
  Speaker 1: Justice Harlan in his dissent in Hurtado, but in addition
• 25:00
  Speaker 1: to these points, he also found that when the 14th
• 25:03
  Speaker 1: Amendment was adopted, all the states of the Union, some
• 25:06
  Speaker 1: in terms, all substantially declared in their Constitution that no
• 25:10
  Speaker 1: person shall be deprived of life, liberty, or property otherwise
• 25:14
  Speaker 1: than by the judgment of his peers or the law
• 25:17
  Speaker 1: of the land, or without due process of law. When
• 25:20
  Speaker 1: the Amendment was adopted, the Constitution of each state with
• 25:23
  Speaker 1: few exceptions, contained and still contains a bill of rights
• 25:27
  Speaker 1: enumerating the rights of life, liberty, and property, which cannot
• 25:30
  Speaker 1: be impaired or destroyed by the legislative department. In some
• 25:34
  Speaker 1: of them, as in those of Pennsylvania, Kentucky, Ohio, Alabama, Illinois, Arkansas, Florida, Mississippi, Missouri,
• 25:42
  Speaker 1: and North Carolina, the rights so enumerated were declared to
• 25:45
  Speaker 1: be embraced by the general great and essential principles of
• 25:49
  Speaker 1: liberty and free government, in others, as in those of
• 25:53
  Speaker 1: Connecticut in 1818 and Kansas 1857, to be embraced by
• 25:57
  Speaker 1: the great and essential principles of free government. Now it's
• 26:02
  Speaker 1: a fact of momentous interest in this discussion that, when
• 26:05
  Speaker 1: the 14th Amendment was submitted and adopted, the Bill of
• 26:08
  Speaker 1: Rights and the Constitution of 27 states expressly forbade criminal
• 26:13
  Speaker 1: prosecution by information for capital cases. While in the remaining
• 26:17
  Speaker 1: 10 states, such prosecutions were impliedly forbidden by a general
• 26:21
  Speaker 1: clause declaring that no person should be deprived of life
• 26:25
  Speaker 1: otherwise than by the judgment of his peers or the
• 26:28
  Speaker 1: law of the land, or without due process of law.
• 26:32
  Speaker 1: It may be safely affirmed that when that amendment was adopted,
• 26:36
  Speaker 1: a criminal prosecution by information for a crime involving life
• 26:40
  Speaker 1: was not permitted in any of the states composing the union.
• 26:44
  Speaker 1: Considering the intentions of those that wrote the Constitution and
• 26:47
  Speaker 1: the importance they placed on the grand jury, Hurtado must
• 26:51
  Speaker 1: be overruled. And the right to a grand jury in
• 26:54
  Speaker 1: infamous and capital cases guaranteed by the Fifth Amendment to
• 26:57
  Speaker 1: the United States Constitution should be applied to the states.
• 27:01
  Speaker 1: All right, we're going to wrap up right here. And
• 27:03
  Speaker 1: in the next episode, we're going to pick up with C,
• 27:06
  Speaker 1: grand jury requirement of the Eighth Amendment. All of the
• 27:09
  Speaker 1: information that goes with this episode can be found in
• 27:12
  Speaker 1: the description box. What's up, everyone, and welcome back to
• 27:16
  Speaker 1: the program. In this episode, we're picking up where we
• 27:19
  Speaker 1: left off with a motion to strike notice of intent
• 27:21
  Speaker 1: to seek the death penalty on grounds of failure to
• 27:24
  Speaker 1: present aggravators to neutral fact finder. C, grand jury requirement
• 27:30
  Speaker 1: of the Eighth Amendment. This court is likely to note
• 27:34
  Speaker 1: that this case did go before a grand jury and
• 27:36
  Speaker 1: that in the state versus Abdullah 158, Idaho 386, 458
• 27:42
  Speaker 1: and 59, 2015, the Idaho Supreme Court held that aggravators
• 27:47
  Speaker 1: do not have to be presented to the grand jury.
• 27:49
  Speaker 1: The decision in Abdullah is wrong and it should be overruled.
• 27:54
  Speaker 1: In brief, the court in Abdullah held that aggravators are
• 27:57
  Speaker 1: not elements and do not need to be presented to
• 28:01
  Speaker 1: a grand jury. That ruling only makes sense if one
• 28:04
  Speaker 1: ignores the purpose of the grand jury as standing between
• 28:07
  Speaker 1: citizens and their government. At the time the Constitution was adopted,
• 28:12
  Speaker 1: most felonies were death penalty cases, in which the only
• 28:16
  Speaker 1: possible outcome was death, and a grand jury would have
• 28:19
  Speaker 1: known it. Grand jurors routinely save defendants from death. See
• 28:24
  Speaker 1: Langbein at 45 for the years of 1600 through 1800.
• 28:28
  Speaker 1: Beatty found that the Surrey grand juries dismissed 11.5% of
• 28:34
  Speaker 1: the bills of indictments for property offenses punishable by death,
• 28:38
  Speaker 1: And 17.3% of those brought for non-capital property offenses, 14.9%
• 28:44
  Speaker 1: for murder, 27.4% for infanticide, 25.8% for wounding, and 44.4%
• 28:52
  Speaker 1: for rape. Thus, the question in Abdullah should not a
• 28:57
  Speaker 1: technical question of what counts as an element at law.
• 29:00
  Speaker 1: The question was and is whether a grand jury believes
• 29:04
  Speaker 1: the prosecution should pursue including the possible punishments. That is
• 29:08
  Speaker 1: why the issue must be seen through the lens of
• 29:11
  Speaker 1: the Eighth Amendment. 1. Arbitrary and Capricious The Eighth Amendment
• 29:16
  Speaker 1: to the Constitution of the United States prohibits the imposition
• 29:19
  Speaker 1: of cruel and unusual punishment. In 1972, the United States
• 29:24
  Speaker 1: Supreme Court determined that the death penalty had become cruel
• 29:28
  Speaker 1: and unusual through its disuse. On the one hand, the
• 29:31
  Speaker 1: court was deeply disturbed by the prospect that the death
• 29:34
  Speaker 1: penalty's apparent arbitrary application may be actually discriminatory application. Justice
• 29:41
  Speaker 1: Douglas wrote, in a nation committed to equal protection of
• 29:44
  Speaker 1: the laws, there is no permissible caste aspect of law enforcement.
• 29:49
  Speaker 1: Yet we know that the discretion of judges and juries
• 29:52
  Speaker 1: in imposing the death penalty enables the penalty to be
• 29:55
  Speaker 1: selectively applied. feeding prejudices against the accused if he is
• 29:59
  Speaker 1: poor and despised, and lacking political clout, or if he
• 30:02
  Speaker 1: is a member of a suspect or unpopular minority, and
• 30:06
  Speaker 1: saving those who by social position may be in a
• 30:09
  Speaker 1: more protected position. In ancient Hindu law, a Brahmin was
• 30:13
  Speaker 1: exempt from capital punishment under the law, generally in the
• 30:17
  Speaker 1: law books, punishment increased in severity as social status diminished.
• 30:22
  Speaker 1: We have, I fear, taken in practice the same position
• 30:25
  Speaker 1: partially as a result of making the death penalty discretionary
• 30:29
  Speaker 1: and partially as a result of the ability of the
• 30:32
  Speaker 1: rich to purchase the services of the most respected and
• 30:35
  Speaker 1: most resourceful legal talent in the nation. On the other hand,
• 30:40
  Speaker 1: members of the court were concerned about ensuring that the
• 30:42
  Speaker 1: death penalty be used in cases that merited its use. Thus,
• 30:47
  Speaker 1: Justice Brennan wrote, The basic concept underlying the clause is
• 30:51
  Speaker 1: nothing less than the dignity of man. While the state
• 30:54
  Speaker 1: has the power to punish, the clause stands to assure
• 30:57
  Speaker 1: that this power be exercised within the limits of civilized standards.
• 31:02
  Speaker 1: In determining whether a punishment comports with human dignity, we
• 31:07
  Speaker 1: are aided also by a second principle inherent in the
• 31:10
  Speaker 1: clause that the state must not arbitrarily inflict a severe punishment.
• 31:14
  Speaker 1: This principle derives from the notion that the state does
• 31:17
  Speaker 1: not respect human dignity when, without reason, it inflicts upon
• 31:21
  Speaker 1: some people a severe punishment that it does not afflict
• 31:24
  Speaker 1: upon others. Indeed, the very words cruel and unusual punishments
• 31:29
  Speaker 1: imply condemnation of the arbitrary infliction of severe punishments. And,
• 31:34
  Speaker 1: as we now know, the English history of the clause
• 31:37
  Speaker 1: reveals a particular concern with the establishment of a safeguard
• 31:41
  Speaker 1: against arbitrary punishments. As Wilkerson v. Utah suggests, when a
• 31:45
  Speaker 1: severe punishment is inflicted, in the great majority of cases
• 31:49
  Speaker 1: in which it is legally available, there is little likelihood
• 31:52
  Speaker 1: that the state is inflicting it arbitrarily. If, however, the
• 31:56
  Speaker 1: infliction of a severe punishment is something different from that
• 32:00
  Speaker 1: which is generally done, in such cases, Trott v. Dulles,
• 32:04
  Speaker 1: 356 U.S. 86, there is a substantial likelihood that the state,
• 32:09
  Speaker 1: contrary to the requirements of regularity, and fairness embodied in
• 32:12
  Speaker 1: the clause is inflicting the punishment arbitrarily. This principle is
• 32:17
  Speaker 1: especially important today. There is scant danger given the political
• 32:21
  Speaker 1: process in an enlightened democracy such as ours that extremely
• 32:25
  Speaker 1: severe punishments be widely applied. The more significant function of
• 32:30
  Speaker 1: the clause, therefore, is to protect against the danger of
• 32:34
  Speaker 1: their arbitrary infliction. In cases involving the death penalty, the
• 32:39
  Speaker 1: law must be able to discern those who merit the
• 32:42
  Speaker 1: ultimate punishment. Death is truly an awesome punishment. The calculated
• 32:46
  Speaker 1: killing of a human being by the state involves, by
• 32:49
  Speaker 1: its very nature, a denial of the executed person's humanity.
• 32:54
  Speaker 1: The contrast with the plight of a person punished by
• 32:57
  Speaker 1: imprisonment is evident. An individual in prison does not lose
• 33:01
  Speaker 1: the right to have rights. A prisoner retains, for example...
• 33:05
  Speaker 1: the constitutional rights to have free exercise of religion, to
• 33:08
  Speaker 1: be free of cruel and unusual punishments, and to treatment
• 33:12
  Speaker 1: as a person for purpose of due process of law
• 33:16
  Speaker 1: and the equal protection of the laws. A prisoner remains
• 33:19
  Speaker 1: a member of the human family. Moreover, he retains the
• 33:23
  Speaker 1: right of access to the courts. His punishment is not irrevocable.
• 33:27
  Speaker 1: Apart from the common charge grounded upon the recognition of
• 33:31
  Speaker 1: human fallibility, that the punishment of death must inevitably be
• 33:35
  Speaker 1: inflicted upon innocent men, we know that death has been
• 33:39
  Speaker 1: the lot of men whose convictions were unconstitutionally secured in
• 33:43
  Speaker 1: view of later, retroactively applied holdings of this court. The
• 33:47
  Speaker 1: punishment itself may have been unconstitutionally inflicted, see Witherspoon v. Illinois,
• 33:52
  Speaker 1: yet the finality of death precludes relief. An executed person
• 33:57
  Speaker 1: has indeed lost the right to have rights. As one
• 34:01
  Speaker 1: 19th century proponent of punishing criminals by death declared, when
• 34:04
  Speaker 1: a man is hung, there is an end of our
• 34:07
  Speaker 1: relations with him. His execution is a way of saying,
• 34:10
  Speaker 1: you are not fit for this world, take your chance elsewhere.
• 34:14
  Speaker 1: Through a divided court, decided Furman, the basic principle that
• 34:18
  Speaker 1: the punishment must fit the crime remains a bedrock of
• 34:21
  Speaker 1: the Eighth Amendment of jurisprudence. And it is for this
• 34:25
  Speaker 1: reason that the aforementioned arbitrariness in its imposition goes beyond
• 34:30
  Speaker 1: the issue of whether arbitrariness is but a mask for prejudice.
• 34:34
  Speaker 1: No death penalty scheme may permit people to be killed
• 34:37
  Speaker 1: for the same reasons it would spare another. 2. The
• 34:41
  Speaker 1: Prosecutor's Discretion in Selecting Candidates for Death The Prohibition on
• 34:46
  Speaker 1: arbitrariness extends to the discretion of the prosecutor. Justice White
• 34:50
  Speaker 1: wrote that the discretion of the prosecutor in deciding to
• 34:53
  Speaker 1: pursue the death penalty is broad. Greg v. Georgia. However,
• 34:57
  Speaker 1: he defined the permissible factors as the strength of their
• 35:01
  Speaker 1: case and the likelihood that a jury would impose the
• 35:03
  Speaker 1: death penalty if it convicts. Defendants will escape the death
• 35:07
  Speaker 1: penalty through prosecutorial charging decisions only because the offense is
• 35:11
  Speaker 1: not sufficiently serious or because the proof is insufficiently strong.
• 35:16
  Speaker 1: In other words, a prosecutor must make the objective decision
• 35:20
  Speaker 1: that the case merits the punishment and for no other reason. However,
• 35:23
  Speaker 1: when the court held in McCleskey v. Kemp that a
• 35:26
  Speaker 1: prosecutor's decision not to seek the death penalty in like
• 35:30
  Speaker 1: circumstances due to mercy could not be used to show
• 35:33
  Speaker 1: a constitutional violation, the Supreme Court in McCleskey left the
• 35:38
  Speaker 1: discretion of prosecutors to seek death undisturbed though it provided
• 35:42
  Speaker 1: no real assurance that the prosecutors would not use this
• 35:45
  Speaker 1: discretion in an arbitrary fashion. It is axiomatic that the
• 35:49
  Speaker 1: court and the people of our nation rely on safeguards
• 35:52
  Speaker 1: to make our jury trial system as fair as possible.
• 35:56
  Speaker 1: The safeguard intended to protect against the vast discretion of
• 36:00
  Speaker 1: prosecutors is the grand jury. As the prosecution has admitted
• 36:04
  Speaker 1: on several occasions in this case, the grand jury played
• 36:06
  Speaker 1: no part in the decision for death in this matter. 3.
• 36:11
  Speaker 1: the grand jury is check on the prosecutor's death decision.
• 36:15
  Speaker 1: Since 1962, the Eighth Amendment to the United States Constitution
• 36:20
  Speaker 1: has barred states from imposing cruel and unusual punishment where
• 36:24
  Speaker 1: the state failed to follow procedure. This is because when
• 36:27
  Speaker 1: the punishment of death has not truly been earned, it
• 36:30
  Speaker 1: is cruel. Thus, the United States Supreme Court held death
• 36:34
  Speaker 1: in its finality differs more from life imprisonment than a
• 36:38
  Speaker 1: 100-year prison term differs from one of only a year
• 36:42
  Speaker 1: or two. Because of the qualitative difference, there is a
• 36:45
  Speaker 1: corresponding difference in the need for liability in the determination
• 36:49
  Speaker 1: that death is the appropriate punishment in a specific case.
• 36:53
  Speaker 1: Since 1972, states have been required to find ways to
• 36:57
  Speaker 1: ensure that the death penalty is being imposed in a
• 37:00
  Speaker 1: manner that is not freakish or wanton. Furman v. Georgia,
• 37:04
  Speaker 1: 408 U.S. 238, 1972. The vast majority of decisions followed
• 37:10
  Speaker 1: that have been concerned with the process by which a
• 37:12
  Speaker 1: defendant is chosen for death have focused on sentencing. These
• 37:17
  Speaker 1: opinions essentially hold that to pass constitutional muster, a capital
• 37:21
  Speaker 1: sentencing scheme must genuinely narrow the class of persons eligible
• 37:25
  Speaker 1: for the death penalty and must reasonably justify the imposition
• 37:29
  Speaker 1: of a more severe sentence in the defendant compared to
• 37:32
  Speaker 1: others found guilty of murder. However, ensuring fairness and due
• 37:36
  Speaker 1: process in death cases requires going beyond the sentencing to
• 37:40
  Speaker 1: the safeguards of the proceedings. Prior to Furman, the Supreme
• 37:43
  Speaker 1: Court held that the 14th Amendment required additional process in
• 37:47
  Speaker 1: capital cases. In Powell v. Alabama, 287 U.S. 45, 1932,
• 37:53
  Speaker 1: the court held that the indigent must be provided counsel
• 37:57
  Speaker 1: in capital cases. The court held, in that case, let
• 38:01
  Speaker 1: us suppose the extreme case of prisoner charged with a
• 38:03
  Speaker 1: capital offense who is deaf and dumb, illiterate, and feeble-minded,
• 38:08
  Speaker 1: unable to employ counsel, with the whole power of the
• 38:10
  Speaker 1: state arrayed against him, prosecuted by counsel for the state,
• 38:14
  Speaker 1: without assignment of counsel for his defense, tried, convicted, and
• 38:18
  Speaker 1: sentenced to death. Such a result, which, if carried into execution,
• 38:23
  Speaker 1: would be little short of judicial murder. It cannot be
• 38:25
  Speaker 1: doubted would be a gross violation of the guarantee of
• 38:28
  Speaker 1: due process of law. The court has also held that
• 38:31
  Speaker 1: a defendant accused of a capital crime is constitutionally entitled
• 38:35
  Speaker 1: to a lesser included instruction. As the court held in Beck,
• 38:39
  Speaker 1: to ensure that the death penalty is indeed imposed on
• 38:42
  Speaker 1: the basis of reason rather than emotion, we have invalidated
• 38:46
  Speaker 1: procedural rules that tended to diminish the reliability of the
• 38:50
  Speaker 1: sentencing determination. The same reasoning must apply to the rules
• 38:53
  Speaker 1: that diminish the reliability of the guilt determination. Thus, if
• 38:57
  Speaker 1: the unavailability of a lesser included offense instruction enhances the
• 39:02
  Speaker 1: risk of an unwarranted conviction, Alabama is constitutionally prohibited from
• 39:07
  Speaker 1: withdrawing that option from the jury in a capital case.
• 39:11
  Speaker 1: Accepting that the Eighth Amendment requires additional process for the selection,
• 39:15
  Speaker 1: defendants to be placed in the pool of possible candidates
• 39:17
  Speaker 1: for death prior to sentencing, it's clear that the grand
• 39:21
  Speaker 1: jury process, as a check on prosecutorial discretion, is required.
• 39:25
  Speaker 1: As argued above, it's widely acknowledged that requiring that a prosecutor...
• 39:30
  Speaker 1: charging decision be vetted by a neutral fact finder serves
• 39:33
  Speaker 1: as a protection against unfounded threats that may be used
• 39:36
  Speaker 1: to coerce a plea to a lesser charge inflict trauma
• 39:40
  Speaker 1: upon the unjustly accused the coercive quality of threatening defendants
• 39:44
  Speaker 1: with massive though unwarranted penalties and the waste of community
• 39:48
  Speaker 1: resources Thus, it must be that in death penalty cases,
• 39:52
  Speaker 1: a neutral fact finder must find probable cause exists to
• 39:56
  Speaker 1: believe that the aggravators alleged by the state exist and
• 39:59
  Speaker 1: outweigh the mitigating factors in order to ensure that death
• 40:03
  Speaker 1: may be sought in order to comply with the Eighth Amendment.
• 40:07
  Speaker 1: Without this check, we have arbitrariness of the current system
• 40:10
  Speaker 1: where prosecutors are the driving force behind where death is sought.
• 40:14
  Speaker 1: Without this check, the freakish and wanton nature of the
• 40:17
  Speaker 1: death penalty cannot be resolved. Without this check, this nation
• 40:22
  Speaker 1: continues to fail to live up to the promises explicitly
• 40:25
  Speaker 1: listed in the Constitution to protect its citizens from the
• 40:29
  Speaker 1: death penalty. Conclusion The court must find that permitting the
• 40:33
  Speaker 1: prosecutor to sit in the place of the judge or
• 40:36
  Speaker 1: jury and decide that death should be permissible penalty in
• 40:39
  Speaker 1: this matter is unconstitutional. The decision as to whether a
• 40:43
  Speaker 1: matter is in fact a capital be checked by a
• 40:46
  Speaker 1: neutral decision-maker. This court should so find and strike the
• 40:50
  Speaker 1: notice pursuant to Idaho Code Section 19-4004A in this matter.
• 40:57
  Speaker 1: Counsel requests this matter be set for a hearing estimated
• 41:00
  Speaker 1: to last 30 minutes. This was signed by Jay Logsdon
• 41:04
  Speaker 1: and it was dated September 4th of 2024. All of
• 41:09
  Speaker 1: the information that goes with this episode can be found
• 41:12
  Speaker 1: in the description box.