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Murder In Moscow: Judge Hippler's Order On Bryan Kohberger's Capital Punishment Motions (Part 6) · Beyond The Horizon

• 0:00
  Speaker 1: What's up everyone, and welcome back to the program. In
• 0:02
  Speaker 1: this episode, we're picking up where we left off with
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  Speaker 1: Judge Hipler's order denying Brian Kolberger's attempt to get death
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  Speaker 1: penalty removed Ice Section nineteen twenty five point fifteen. As
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  Speaker 1: the Ido Supreme Court has determined in Hall, the plain
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  Speaker 1: language of the statute clearly distinguishes the statutory aggravating circumstances
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  Speaker 1: enumerated in sub section nine and from all relevant evidence
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  Speaker 1: in aggravation and mitigation in sub section six, both of
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  Speaker 1: which may be considered by the jury when determining an
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  Speaker 1: individualized sentence one sixty three Idaho at seven ninety eight
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  Speaker 1: four nineteen page three, d At ten ninety six. If
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  Speaker 1: it wanted to restrict the evidence presented to that which
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  Speaker 1: is relevant only to the statutory aggravators, the legislature could
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  Speaker 1: have said something like all relevant evidence in support of
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  Speaker 1: the statutory aggravators in mitigation, but it did not. Over
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  Speaker 1: it is only with respect to the statutory aggravating circumstances
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  Speaker 1: that the statute imposes the condition of proof beyond a
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  Speaker 1: reasonable doubt. The statute is silent as to the burden
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  Speaker 1: of proof required for the non statutory evidence in aggravation.
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  Speaker 1: Had the legislature wished to impose such a burden on
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  Speaker 1: the non statutory evidence, it certainly could have done so.
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  Speaker 1: The fact it did not indicates that it did not
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  Speaker 1: intend for the same level of proof to apply. In fact,
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  Speaker 1: as the state points out, the Idaho Supreme Court has
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  Speaker 1: suggested that non statutory aggravating circumstances presented under IC Section
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  Speaker 1: nineteen twenty five to fifteen need not be found beyond
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  Speaker 1: reasonable doubt. In analyzing the Statute and Hall, the Idaho
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  Speaker 1: Supreme Court cited approvingly to a passage in its opinion
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  Speaker 1: in Creach where at first recognized the admissibility of non
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  Speaker 1: statutory aggravating circumstances under IC Section nineteen twenty five to fifteen.
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  Speaker 1: That passage provides this Court is not limited as to
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  Speaker 1: the circumstances it may find in aggravation to those listed
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  Speaker 1: as statutory aggravators. Thus, that section of the Court's findings
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  Speaker 1: denominated five facts and arguments found in aggravation, although including
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  Speaker 1: circumstances not statutorily listed and not expressly found beyond a
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  Speaker 1: reasonable doubt and not error. IC Section nineteen twenty five
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  Speaker 1: to fifteen a permits the court, upon the suggestion of
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  Speaker 1: either party that there are circumstances which might properly be
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  Speaker 1: considered in aggravation or mitigation, to hear those circumstances. That
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  Speaker 1: language strongly suggests that a judge should hear all relevant
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  Speaker 1: evidence which either party desires to set forth. Such an
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  Speaker 1: interpretation is not contradicted by IC Section nineteen twenty five
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  Speaker 1: to fifteen f, which merely lists the statutory aggravating circumstances,
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  Speaker 1: at least one of which must exist beyond a reasonable
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  Speaker 1: doubt if the ultimate sanction of death is to be imposed. Defendant, however,
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  Speaker 1: contends that the state over states the import of creach,
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  Speaker 1: given that it was decided under a pre ring version
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  Speaker 1: of IC nineteen twenty five to fifteen, when judges rather
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  Speaker 1: than the jury, had to provide written findings as to
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  Speaker 1: the statutory aggravators. The court's reference to the word expressly,
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  Speaker 1: according to Defendant, was solely in reference to what the
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  Speaker 1: judge had to put in the written findings. It did
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  Speaker 1: not hold that the non statutory aggravators could be found
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  Speaker 1: without proof beyond a reasonable doubt. While Defending is correct
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  Speaker 1: that creach holding did not go this far, his attempt
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  Speaker 1: to parts the meaning of expressly in Creach is unavailing.
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  Speaker 1: The version of statute at issue in Creach is not
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  Speaker 1: fundamentally different than its current form, with the exception that
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  Speaker 1: the jury now makes the written findings rather than the judge. Importantly,
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  Speaker 1: both versions differentiate between statutory aggravating circumstances and all relevant
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  Speaker 1: evidence in aggravation, and only require that the former be
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  Speaker 1: established beyond a reasonable doubt. Compare IC Section nineteen twenty
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  Speaker 1: five to fifteen c F. Nineteen seventy seven with IC
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  Speaker 1: Section nineteen twenty five to fifteen five A eight A
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  Speaker 1: one twenty twenty two to interpret creach use of the
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  Speaker 1: word expressly as suggesting that non statutory aggravators must also
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  Speaker 1: be found beyond a reasonable doubt, but need not be
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  Speaker 1: set forth in writing reads into the statute language that
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  Speaker 1: does not exist. Moreover, the case law cited by defendant
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  Speaker 1: in support of his suggested interpretation of IC Section nineteen
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  Speaker 1: twenty five to fifteen provides no support. In People versus Tennyson,
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  Speaker 1: the Supreme Court of Colorado considered whether Colorado's former death
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  Speaker 1: penalty statute required a jury to find beyond a reasonable
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  Speaker 1: doubt that the mitigating factors presented did not outweigh the
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  Speaker 1: proven statutory aggravating factors before death could be imposed. The
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  Speaker 1: court concluded it did, citing the strong concern for a
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  Speaker 1: liability of any sentence of death. Denison, however, speaks only
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  Speaker 1: to the proof required in the weighing process of mitigating
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  Speaker 1: evidence against statutory aggravators. It did not address whether non
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  Speaker 1: statutory aggravating evidence had to be proven beyond a reasonable doubt. Moreover,
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  Speaker 1: Idaho Statute already prescribes as standard of proof for this
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  Speaker 1: weighing the mitigating evidence must be sufficiently compelling when weighed
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  Speaker 1: against the statutory aggravating circumstance. I see Section nineteen twenty
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  Speaker 1: five to fifteen eight A two. Further, the Idaho Supreme
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  Speaker 1: Court has rejected the beyond a reasonable doubt standard in
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  Speaker 1: this weighing process, noting the weighing process, in our opinion,
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  Speaker 1: does not involve shifting the burden of persuasion, but is
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  Speaker 1: concerned instead with the presentation of relevant information to the
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  Speaker 1: sentencer in order that a reasoned and considered decision can
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  Speaker 1: be reached. The defendant's burden is merely to raise in
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  Speaker 1: the aggravation mitigation hearing any factors which might possibly tend
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  Speaker 1: to mitigate his culpability for the offense. He has full
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  Speaker 1: opportunity to present and argue those factors. The court below
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  Speaker 1: then evaluates those factors under the guideline set fourth in
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  Speaker 1: the statute. His decision, including his reasoning, is then set
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  Speaker 1: forth in detail, and his court reviews the entire process.
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  Speaker 1: While it's possible to speak of a burden of persuasion
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  Speaker 1: on the defendant to establish why he should receive leniency,
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  Speaker 1: we feel that under our sentencing process, the facts speak
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  Speaker 1: for themselves once presented. The completeness of the evaluative process below,
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  Speaker 1: and the mandatory review by this court, we feel withstands
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  Speaker 1: constitutional scrutiny Osborne one two Idaho At. Four seventeen six
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  Speaker 1: point thirty one p. Dot two d At one ninety nine.
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  Speaker 1: See also ic Ji seventeen twenty two. The existence of
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  Speaker 1: mitigating factors need not be proven beyond a reasonable doubt.
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  Speaker 1: In some In interpreting ic Section nineteen twenty five fifteen,
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  Speaker 1: the court cannot insert in statutes terms or provisions which
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  Speaker 1: are obviously not there. To adopt the defendant's position would
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  Speaker 1: require the court to do just that. Consequently, his motion
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  Speaker 1: is denied e motion to trifurcate proceedings and apply rules
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  Speaker 1: of evidence at eligibility phase. While defendant acknowledges that Idaho's
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  Speaker 1: death penalty scheme provides for two phases, a guilt phase
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  Speaker 1: and a penalty phase, he contends it must be trifurcated
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  Speaker 1: to ensure his constitutional rights are maintained. To this end,
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  Speaker 1: he argues the penalty phase should be divided into two
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  Speaker 1: parts when addressing whether he is eligible for death penalty,
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  Speaker 1: i e. Whether there is proof of a statutory aggravator
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  Speaker 1: beyond a reasonable doubt, and one determining the appropriate punishment
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  Speaker 1: weighing all relevant evidence. The state is permitted to present
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  Speaker 1: all evidence relevant to both statutory and non statutory aggravating
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  Speaker 1: circumstances at one time. Defendant contends a jury may be
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  Speaker 1: confused as to what evidence applies to what status tory
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  Speaker 1: aggravator and misapply the evidence. Trifurcating would ensure that the
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  Speaker 1: jurors consider the appropriate aggravator at the appropriate time. He
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  Speaker 1: also contends that once trifurcated, the Idaho rules of evidence
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  Speaker 1: should apply to the eligibility phase, given that it is
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  Speaker 1: akin to a guilt phase. The state responds that the
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  Speaker 1: defendant's position is simply one of public policy and ignores
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  Speaker 1: the plain language of IC Section nineteen twenty five to
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  Speaker 1: fifteen and binding appellate decisions. It points out that IC
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  Speaker 1: Section nineteen twenty five to fifteen calls for a single
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  Speaker 1: sentencing proceeding, which has been the general practice of capital
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  Speaker 1: cases in Idaho and contemplated by Idaho's death penalty sentencing instructions.
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  Speaker 1: The State further points that the defendants proportions of leaving
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  Speaker 1: the presentation of mitigating evidence to the last phase would
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  Speaker 1: have the unintended consequence of highlighting aggravating evidence. This issue
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  Speaker 1: is a matter of first impression in Idaho, balancing the
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  Speaker 1: benefits and detriments that may be posed by trifurcation, and
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  Speaker 1: considering trifurcation is an exception to the rule, the court
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  Speaker 1: will proceed in accordance with IC Section nineteen twenty five
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  Speaker 1: point fifteen, rather than depart on any extra statutory, quixotic
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  Speaker 1: journey through trifurcation. One the birth of bifurcated death penalty
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  Speaker 1: proceedings in Idaho in nineteen seventy two case of Furman
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  Speaker 1: versus Georgia, the United States Supreme Court determined that the
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  Speaker 1: death penalty constituted cruel and unusual punishment in violation of
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  Speaker 1: the Eighth Amendment if it was administered arbitrarily or discriminately.
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  Speaker 1: The decision served to invalidate most every capital punishment scheme
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  Speaker 1: adopted by the states for giving too much discretion to
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  Speaker 1: the sentencer. In response, state legislature, including Idaho's, revamped their
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  Speaker 1: death penalty statutes. One of the statutory structures that emerged
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  Speaker 1: allowed the sentencer to weigh aggravating and mitigating circumstances in
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  Speaker 1: a separate sentencing phase conducted after the guilt phase. In
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  Speaker 1: greg the United States Supreme Court considered an approved one
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  Speaker 1: such scheme adopted by Georgia. Georgia's scheme specified statutory aggravating circumstances,
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  Speaker 1: one of which must be found by the sentencer beyond
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  Speaker 1: a reasonable doubt before a defendant was eligible for a
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  Speaker 1: death penalty. The sentencer was also permitted to consider any
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  Speaker 1: other appropriate aggravating or mitigating circumstances prior to recommending a
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  Speaker 1: sentence of death. To accomplish this, Georgia adopted a bifurcated
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  Speaker 1: system that segregated the guilt phase from the penalty phase.
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  Speaker 1: In finding the bifurcated system best addressed the constitutional deficiencies
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  Speaker 1: identified in Furman. The greg Court quoted approvingly from the
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  Speaker 1: drafters of the Model Penal Code to wit, if a
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  Speaker 1: unitary proceeding is used, the determination of the punishment must
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  Speaker 1: be based on less than all the evidence that has
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  Speaker 1: a bearing on the issue, such for example, as previous
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  Speaker 1: criminal record of the accused, or evidence must be admitted
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  Speaker 1: on the grid rounds that it is relevant to sentence,
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  Speaker 1: though it would be excluded as irrelevant or a prejudicial
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  Speaker 1: with respect to guilt or innocence alone. Trial lawyers understandably
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  Speaker 1: have little confidence in a solution that admits the evidence
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  Speaker 1: and trust to an instruction to the jury that it
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  Speaker 1: should be considered only in determining the penalty and disregarded
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  Speaker 1: in assessing guilt. The obvious solution is to bifurcate the proceeding,
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  Speaker 1: abiding strictly by the rules of evidence until and unless
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  Speaker 1: there is a conviction, but once again until guilt has
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  Speaker 1: been determined, opening the record to the further information that
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  Speaker 1: is relevant to the sentence. This is an analog of
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  Speaker 1: the procedure in the ordinary case when capital punishment is
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  Speaker 1: not the issue, then courts conduct a separate inquiry before
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  Speaker 1: imposing sentence. While the court was clear that George's scheme
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  Speaker 1: was not the only way a death penalty statute could
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  Speaker 1: pass the constitutional muster, it indicated that it was the best.
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  Speaker 1: Like Georgia, Idaho revamped its death penalty scheme in response
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  Speaker 1: to Furman by Inderalia, providing for a separate sentencing phase
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  Speaker 1: during which the court would weigh circumstances in aggravation and mitigation.
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  Speaker 1: This bifurcated process continues to this day. During the guilt phase,
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  Speaker 1: the jury decides whether a defendant is guilty of a
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  Speaker 1: first degree murder. During a penalty phase or a special
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  Speaker 1: sentencing proceeding, the state and the defendant may present all
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  Speaker 1: relevant evidence in aggravation and mitigation, including victim impact evidence,
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  Speaker 1: which is a form of non statutory aggravating evidence. The
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  Speaker 1: jury must then decide one whether the state is proven
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  Speaker 1: at least one aggravating circumstance beyond a reasonable doubt eligibility decision,
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  Speaker 1: and if so too, whether all the mitigating circumstances, when
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  Speaker 1: weighed against the statutory aggravating circumstance, is sufficiently compelling that
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  Speaker 1: the death penalty would be unjust id at nineteen twenty
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  Speaker 1: five to fifteen three B eight. Because the penalty phase
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  Speaker 1: is a sentencing hearing, the rules of evidence do not apply,
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  Speaker 1: nor is it subject to the Conference tentation clause stayed
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  Speaker 1: verus done, Lap one fifty five, Idaho, twenty thirteen. All Right,
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  Speaker 1: we're going to wrap up right here, and in the
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  Speaker 1: next episode we're gonna pick up where we left off.
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  Speaker 1: And that's two pros and cons of the trifurcated approach.
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  Speaker 1: All of the information that goes with this episode can
• 13:16
  Speaker 1: be found in the description box.