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Mega Edition: Kohberger Responds To The Motion To Exclude Neuropsychological Evidence (8/22/26) · Beyond The Horizon

• 0:00
  Speaker 1: What's up everyone, and welcome back to the program. In
• 0:03
  Speaker 1: this episode, we're headed right back out to Moscow and
• 0:06
  Speaker 1: we're going to take a look at some more core documents.
• 0:08
  Speaker 1: This time, we're going to be taking a look at
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  Speaker 1: the defendant's response to the State's motion in Lemonae Neuropsychological
• 0:16
  Speaker 1: and Psychiatric Evidence, Case number CR zero one, Dash twenty
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  Speaker 1: four Dash three one sixty sixty five, State of Idaho,
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  Speaker 1: Plaintiff first Brian C. Coberger. The defendant comes now Brian C. Coburger,
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  Speaker 1: buying through his attorneys of record, and hereby response to
• 0:32
  Speaker 1: the State's motion in Lemona Neuropsychological and Psychiatric Evidence, filed
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  Speaker 1: on February twenty first, twenty twenty five. The State objects
• 0:42
  Speaker 1: to the proposed testimony of Rachel l Or and Eileen P. Ryan,
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  Speaker 1: arguing that the proposed testimony is outside of the mental
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  Speaker 1: condition evidence allowable under Idaho Code Section eighteen, Dash two
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  Speaker 1: seven three. This response is made pursuant to due process
• 1:00
  Speaker 1: Ire one oh six for a complete defense and a
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  Speaker 1: fair trial guaranteed by the fifth, sixth, and fourteenth Amendments
• 1:07
  Speaker 1: to the United States Constitution and Article one, Section thirteen
• 1:11
  Speaker 1: of the Idaho Constitution. The minute the jury selection begins,
• 1:15
  Speaker 1: jurors will begin to study and analyze mister Coberger's physical presence.
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  Speaker 1: They will watch us every move and pass judgment on
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  Speaker 1: him every minute of the jury trial, simply based on
• 1:25
  Speaker 1: how he looks and reacts to the presentation of certain
• 1:28
  Speaker 1: evidence and comments about him. Mister Coberger must be able
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  Speaker 1: to present testimony to the jury that he has certain
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  Speaker 1: physical disorders. It will assist the trier of fact to
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  Speaker 1: know his physical presentation, including nonverbal reactions in the courtroom,
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  Speaker 1: is explained by his physical condition. To exclude this evidence
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  Speaker 1: will result in unfair bias that could cause a wrongful conviction.
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  Speaker 1: This objection is supported by the declaration of Jeffrey Lewine,
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  Speaker 1: an expert in neuroscience and neuroimaging. Mister Coeberger in no
• 1:59
  Speaker 1: way suggests that expert testimony related to his autism spectrum
• 2:03
  Speaker 1: disorder asd obsessive compulsive disorder and developmental coordination disorder are
• 2:09
  Speaker 1: for the purpose of showing that he does not know
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  Speaker 1: right from wrong. He has at all times and continues
• 2:14
  Speaker 1: to assert his actual innocence in the case. The State
• 2:18
  Speaker 1: correctly noted in its motion mister Colberger's disclosure states that
• 2:22
  Speaker 1: doctor Orr's testimony and doctor Ryan's testimony is not intended
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  Speaker 1: to be mental element defense pursuing to Idaho Code Section
• 2:30
  Speaker 1: eighteen two oh seven, but rather this testimony about the
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  Speaker 1: state of mind, as well as factual defense testimony to
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  Speaker 1: anticipated testimony elicited by the state defendants Exhibit D seven A,
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  Speaker 1: Page thirty four, twenty four. Idaho Codes Section eighteendash two
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  Speaker 1: O seven is not limited to the admission of either
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  Speaker 1: direct or rebuttal expert testimony two elements of the crime
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  Speaker 1: State Versus Samuel one sixty five, Idaho, twenty nineteen. Because
• 2:59
  Speaker 1: of the statutes wrought application, the Idaho Supreme Court has
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  Speaker 1: determined that Idaho Codes Section eighteen two O seven applies
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  Speaker 1: to legal proceedings before trial, including pre trial motions. The
• 3:10
  Speaker 1: threshold test for the admission of expert testimony is whether
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  Speaker 1: the scientific or other specialized knowledge of the expert will
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  Speaker 1: assist the trier of fact to understand the evidence or
• 3:21
  Speaker 1: determine effect that issue Ire seven oh two. The function
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  Speaker 1: of the expert is to provide testimony that is beyond
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  Speaker 1: the common sense, experience and education of the average juror
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  Speaker 1: State vers Hester one fourteen Idaho six eighty eight, nineteen
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  Speaker 1: eighty eight. Where the normal experience and qualifications of lay
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  Speaker 1: jurors permit them to draw proper conclusions from giving facts
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  Speaker 1: and circumstances, then expert conclusions or opinions are admissible. In
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  Speaker 1: this case, it is not the normal experience and qualification
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  Speaker 1: of LAI jurors to understand ASD, OCD or developmental coordination disorder.
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  Speaker 1: Expert testimony is necessary autism spectrum disorder. The anticipated testimony
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  Speaker 1: of doctor Orr and doctor Ryan is relevant to explain
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  Speaker 1: that mister Coberger's ASD diagnosis is a physical condition and
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  Speaker 1: how it presents in his demeanor. Mister Coberger has met
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  Speaker 1: the criteria for the diagnosis since childhood, and that is
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  Speaker 1: not a convenient diagnosis given his current legal situation and
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  Speaker 1: jeopardy defend an Exhibit D thirteen B, page thirty nine,
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  Speaker 1: thirty eight. The anticipated testimony of doctor Orr and doctor
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  Speaker 1: Ryan is relevant to explaining how the behaviors and mannerisms
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  Speaker 1: presented by mister Coburger are consistent with the individual having ASD.
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  Speaker 1: In addition to the opinions of doctor Orr and doctor Ryan,
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  Speaker 1: the declaration of doctor Lewine explains that neuroimaging of mister
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  Speaker 1: Coberger's brain supports the ASD diagnosis. ASD is a neurological
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  Speaker 1: disorder that is physical and while most people ordinarily think
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  Speaker 1: of ASD as a mental health condition, it is a
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  Speaker 1: neu rological and developmental disorder that affects how people interact
• 5:04
  Speaker 1: with others, communicate, learn, and behave. Defendant's motion to strike
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  Speaker 1: penalty of death. Autism spectrum disorder, page four. According to
• 5:14
  Speaker 1: the United States Government National Institute of Mental Health, Autism
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  Speaker 1: spectrum disorder is a neurological and developmental disorder that affects
• 5:22
  Speaker 1: how people interact with others, communicate, learn, and behave. Autism
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  Speaker 1: spectrum disorder, National Institute of Mental Health LESS retrieved March sixteenth,
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  Speaker 1: twenty twenty five. As a neurological disorder, ASD is associated
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  Speaker 1: with structural and functional ie physical defects in the tissue
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  Speaker 1: of the brain that can't be seen when you look
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  Speaker 1: at a person, but it can be observed with proper
• 5:46
  Speaker 1: microscopic examination and in some individuals through the use of
• 5:50
  Speaker 1: quantitative analysis of magnetic resonance imaging of the brain, such
• 5:54
  Speaker 1: as the case with mister Kolberger. See attached declaration of
• 5:57
  Speaker 1: doctor Jeffrey Lewine. Research on large groups of persons with
• 6:02
  Speaker 1: ASD has indicated the presence of structural differences in the
• 6:05
  Speaker 1: brain of these groups versus those individuals with typical neurobiological development,
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  Speaker 1: which also supports the conclusion of NIMH and others that
• 6:17
  Speaker 1: ASD is a neurological disorder. Imaging of mister Colberger's brain
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  Speaker 1: is reported in doctor Lewine's attached declaration show findings of
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  Speaker 1: structural differences in the physical makeup of his brain in
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  Speaker 1: areas commonly associated with the control and expression of behaviors
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  Speaker 1: commonly seen in ASD and listed below as taken from
• 6:37
  Speaker 1: the NIMH website. Symptoms of an actual behavior commonly associated
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  Speaker 1: with obsessive compulsive disorder OCD are common in people with ASD.
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  Speaker 1: As a physical condition, ASD may not be as noticeable
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  Speaker 1: as some physical conditions, like a missing arm. If mister
• 6:56
  Speaker 1: Coberger had the physical disability of a missing arm, the
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  Speaker 1: jury would not require explanation about how such a physical
• 7:03
  Speaker 1: condition may impact the case. ASD is visible in some
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  Speaker 1: ways that will be apparent to a jury, but requires
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  Speaker 1: explanation Without explanation, the way that the public perceives the
• 7:15
  Speaker 1: behaviors and mannerisms of someone with ASD is not always
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  Speaker 1: favorable and may be prejudicial. While mister coburger presentation is
• 7:23
  Speaker 1: highly consistent with ASD, without explanation, others may misinterpret and
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  Speaker 1: misidentify mister Coberger's behaviors and cast them in a more
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  Speaker 1: sinister light. For example, he does not show emotion on
• 7:36
  Speaker 1: his face. He has a flat effect. He sits very
• 7:39
  Speaker 1: still and holds his hands in the same position. He
• 7:42
  Speaker 1: has a piercing stare. He does not show expected reactions.
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  Speaker 1: Facial expressions do not reflect what he is feeling. He
• 7:50
  Speaker 1: is stiff in body posture. He has prosody and speech,
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  Speaker 1: uses repetitive phrases in large words, and has developed dexterity problems.
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  Speaker 1: Many of his behavioral characteracteristics are known to be commonly
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  Speaker 1: associated with the presence of ASD and are clearly relevant
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  Speaker 1: to the interpretation of his behavior in the courtroom by
• 8:08
  Speaker 1: the jury, and may also be relevant evidence or regarding
• 8:11
  Speaker 1: the rebuttal of evidence as to the commission of the
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  Speaker 1: crime itself. Further explanation about ASD by the United States
• 8:18
  Speaker 1: government National Institute of Mental Health is helpful. The NIMH
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  Speaker 1: provides the following on its website. The list below gives
• 8:26
  Speaker 1: some examples of different types of behaviors that are common
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  Speaker 1: among people diagnosed with ASD. Not all people with ASD
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  Speaker 1: will have all behaviors, but most will have several of
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  Speaker 1: the behaviors listed below. Social communication and social interaction behaviors
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  Speaker 1: may include making little or inconsistent eye contact, appearing not
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  Speaker 1: to look or listen to people who are talking, infrequently
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  Speaker 1: sharing interest, emotion, or enjoyment of objects or activities, including
• 8:54
  Speaker 1: infrequently pointing at or showing things to others, not responding
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  Speaker 1: or being slow to respond to one's name or other
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  Speaker 1: verbal bids for attention. Having difficulty with the back and
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  Speaker 1: forth of conversation, often talking at length about a subject
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  Speaker 1: of interest without considering social cues or a conversational give
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  Speaker 1: and take, displaying facial expressions, movements, and gestures that do
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  Speaker 1: not match what is being said, having an unusual tone
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  Speaker 1: of voice that may sound flat, lacking emotion or tonal variation,
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  Speaker 1: having trouble understanding another person's point of view, or being
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  Speaker 1: unable to predict or understand other people's actions, difficulties adjusting
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  Speaker 1: behavior to different social situations, Difficulties sharing in imaginative play
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  Speaker 1: or in making friends. Restrictive repetitive behaviors may include repeating
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  Speaker 1: certain behaviors or having unusual behaviors such as repeating words
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  Speaker 1: or phrases, having a lasting intense interest in specific topics
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  Speaker 1: such as numbers, details, or facts, showing overly focused interests
• 9:57
  Speaker 1: such as with moving objects or with parts of objects,
• 10:01
  Speaker 1: becoming upset by slight changes in a routine, and having
• 10:04
  Speaker 1: difficulty with transitions. Autistic people often have sensory differences, such
• 10:10
  Speaker 1: as being more sensitive or less sensitive than other people
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  Speaker 1: to sensory inputs such as light, sound, clothing, or temperature.
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  Speaker 1: Based upon a reasoned analysis of discovery provided by the
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  Speaker 1: State to date mister Kolberger's behaviors that are attributed to
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  Speaker 1: his ASD and on his list of common behaviors of
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  Speaker 1: persons with ASD is provided by the NIMH, along with
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  Speaker 1: other behaviors attributable to his neurological condition, must be presented
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  Speaker 1: to the jury to confront and robut certain evidence to
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  Speaker 1: be proffered by the state. All right, we're going to
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  Speaker 1: wrap up part one right here, and in the next
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  Speaker 1: episode we're going to pick up with obsessive compulsive disorder
• 10:50
  Speaker 1: All of the information that goes with this episode, including
• 10:53
  Speaker 1: my contact information, can be found in the description box.
• 10:57
  Speaker 1: What's up everyone, and welcome back to the pro In
• 11:01
  Speaker 1: this episode, we're going to pick up where we left
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  Speaker 1: off with Brian Coohberger's response to the State's motion in
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  Speaker 1: lemona neuropsychological and psychiatric evidence. Obsessive compulsive disorder OCD. OCD
• 11:14
  Speaker 1: can be an independent diagnosis, but it also is a
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  Speaker 1: set of symptomatic behaviors that are often comorbid in ASD,
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  Speaker 1: as with mister Colberger's ASD. Notable, for example, on the
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  Speaker 1: above NI m H list of behavioral issues commonly associated
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  Speaker 1: with ASD. Mister Colberger has sleep difficulties and subsequently developed
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  Speaker 1: a habit of night driving or running to decompress such behavior,
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  Speaker 1: as being present most of his life. He also engages
• 11:44
  Speaker 1: in frequent compulsive handwashing, wears gloves to avoid germs, has
• 11:48
  Speaker 1: a fear of things getting into his eyes, changes his
• 11:51
  Speaker 1: shower curtain frequently to avoid exposure to mold, and avoids
• 11:54
  Speaker 1: anything he views as contaminating. Look, just interject, real quick,
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  Speaker 1: how does that train with somebody that's going to be
• 12:01
  Speaker 1: at crime scenes picking up all kinds of disgusting evidence.
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  Speaker 1: I don't buy any of this. If the state elicits
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  Speaker 1: testimony at trial related to these types of facts that
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  Speaker 1: are used to build circumstantially the elements of the crime
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  Speaker 1: to or show mister Coberger's actions as reflecting his state
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  Speaker 1: of mind or other elements of the crime, he will
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  Speaker 1: refute that evidence through expert testimony as behaviors related to
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  Speaker 1: his OCD and his ASD. By the way of specific example,
• 12:29
  Speaker 1: the state has continued to claim that mister Coburger was
• 12:32
  Speaker 1: wearing gloves on the night of his arrest and placing
• 12:35
  Speaker 1: trash in baggies. The state asserts that this demonstrates he
• 12:38
  Speaker 1: had a consciousness of guilt and he was trying to
• 12:41
  Speaker 1: either hide his DNA or engage in the cleaning of
• 12:44
  Speaker 1: his car. This is highly prejudicial and misleading. Mister Coburger
• 12:48
  Speaker 1: frequently wears gloves to avoid germs on surfaces, He was
• 12:52
  Speaker 1: not cleaning his car on the night of his arrest.
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  Speaker 1: He was awake at night, as his typical for him,
• 12:58
  Speaker 1: and he was cleaning his bathroom. While testimony related to
• 13:01
  Speaker 1: these topics may not be relevant until the state opens
• 13:05
  Speaker 1: the door by eliciting testimony on these issues, once it does,
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  Speaker 1: mister Coburger must be allowed to provide expert testimony refuting
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  Speaker 1: the state's witnesses. Such relevant evidence can assist the try
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  Speaker 1: or effect in evaluating circumstantial evidence the state may put forward,
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  Speaker 1: and since all such testimony would be subject to vigorous
• 13:24
  Speaker 1: cross examination, it would clarify and not confuse the jurors.
• 13:29
  Speaker 1: Developmental coordination disorder, mister Coburger suffers from deficits and fine
• 13:35
  Speaker 1: motor dexterity and visual motor function. Clearly, these are physical issues.
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  Speaker 1: He has experienced these physical impairments all of his life.
• 13:43
  Speaker 1: The state has disclosed evidence that law enforcement will testify
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  Speaker 1: that they did test runs at eleven twenty two King
• 13:49
  Speaker 1: Road and that it's possible to commit four homicides in
• 13:52
  Speaker 1: a time frame of only minutes, including walking to and
• 13:56
  Speaker 1: from a car and removing clothing that would be covered
• 13:59
  Speaker 1: in blood. Additionally, the state is disclosed a forensic pathologist
• 14:03
  Speaker 1: who will testify regarding manner of death, injuries, and specific
• 14:06
  Speaker 1: wounds on the deceased. Mister Coberger has disclosed a forensic
• 14:11
  Speaker 1: pathologist who has some differing opinions including injury and specific
• 14:15
  Speaker 1: wounds on the deceased. It will be relevant for the
• 14:18
  Speaker 1: jury to know that mister Coberger has a developmental coordination
• 14:21
  Speaker 1: disorder that impacts his fine motor dexterity and visual motor function,
• 14:26
  Speaker 1: such speed and coordination are not possible for him. Conclusion,
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  Speaker 1: mister Coberger has a right to confront the witnesses and
• 14:33
  Speaker 1: evidence presented by the state and due process under the fifth,
• 14:36
  Speaker 1: six and fourteenth Amendments to the United States Constitution and
• 14:40
  Speaker 1: Article I, Section thirteen of the Idaho Constitution. This includes
• 14:44
  Speaker 1: presenting evidence to rebut the case against them. The court
• 14:48
  Speaker 1: should deny the state's motion to eliminae to exclude neuropsychological
• 14:52
  Speaker 1: and psychiatric evidence. More specifically, the court should allow doctor
• 14:56
  Speaker 1: Orr and doctor Ryan to testify. The physical disorder of
• 15:00
  Speaker 1: ASD should be allowed at the outset of the trial.
• 15:03
  Speaker 1: Issues related to his OCD symptoms that are an outgrowth
• 15:06
  Speaker 1: of his neurological disorder AKAASD CNIMH quotes above and developmental
• 15:13
  Speaker 1: coordination disorder may depend on the evidence the State elicits
• 15:17
  Speaker 1: as the trial proceeds. This document was dated March seventeenth
• 15:21
  Speaker 1: of twenty twenty five and it was signed by Alissa
• 15:24
  Speaker 1: Massoff all Right. Moving on to the next document, and
• 15:28
  Speaker 1: that is the declaration of Jeffrey Wine bs MS, PhD. I,
• 15:34
  Speaker 1: Jeffrey David Lewine, swear, under penalty of perjury, that the
• 15:38
  Speaker 1: information in this declaration is true and correct to the
• 15:41
  Speaker 1: best of my knowledge. My name is Jeffrey David Lewine, PhD.
• 15:45
  Speaker 1: I'm over the age of eighteen, mentally competent and make
• 15:49
  Speaker 1: this declaration freely based on my own personal knowledge. I
• 15:53
  Speaker 1: have BSMS and PhD degrees in neuroscience from the University
• 15:57
  Speaker 1: of Rochester, plus postdoctoral training in biophysics and neuroscience as
• 16:02
  Speaker 1: a director's fellow at Los Alamos National Laboratory. Over my career,
• 16:07
  Speaker 1: I have held academic appointments in multiple university departments, including
• 16:11
  Speaker 1: appointments in Neurology University of Kansas, University of New Mexico,
• 16:16
  Speaker 1: Radiology University of New Mexico, University of Utah, and Psychiatry
• 16:21
  Speaker 1: and Behavioral Sciences University of Kansas. I presently hold multiple
• 16:27
  Speaker 1: academic and business related titles and positions as outlined below.
• 16:31
  Speaker 1: I'm the CEO and President of Neuroscience Expert Consulting Services
• 16:35
  Speaker 1: of America NECSOA provides data analysis and consulting services, especially
• 16:43
  Speaker 1: with respect to legal proceedings. I am the CEO and
• 16:47
  Speaker 1: CSO of the Center for Advanced Diagnostics, Evaluation and Therapeutics
• 16:52
  Speaker 1: CADET NM, Incorporated is involved in the development and evaluation
• 16:56
  Speaker 1: of novel therapeutics for neuro developmental disorders, tonitis and TBI.
• 17:03
  Speaker 1: I am the CEO and CSO of Cadet Scientific LLC.
• 17:07
  Speaker 1: Cadet Scientific is engaged in basic research on neurodevelopmental disorders TBI, PTSD,
• 17:14
  Speaker 1: and dementia. I am an affiliate Professor of Translational Neuroscience
• 17:19
  Speaker 1: in the Mind Research Network MRN. MRN is a five
• 17:22
  Speaker 1: oh one C three organization initially established through a sixty
• 17:27
  Speaker 1: million dollars allocation from the United States Congress. Activities focus
• 17:31
  Speaker 1: on the evaluation of brain structure, function, and health and disease.
• 17:36
  Speaker 1: I ow faculty appointments in the Departments of Neurology and
• 17:39
  Speaker 1: Psychology at the University of New Mexico. Activities include teaching
• 17:44
  Speaker 1: in student and faculty mentoring. I am the director of
• 17:48
  Speaker 1: Research for Beyond Barriers Therapeutics, a virtual pharmaceutical company developing
• 17:53
  Speaker 1: novel treatments for TBI, alphavirus exposure and organ phosphate poisoning.
• 18:00
  Speaker 1: I am the chief scientific and research officer for the
• 18:02
  Speaker 1: Research and Recognition Project, which has developed a new therapy
• 18:06
  Speaker 1: for PTSD. I have over thirty years of experience in
• 18:10
  Speaker 1: the neuroscientific evaluation of the neurobiological status of clients with
• 18:15
  Speaker 1: a wide range of conditions including neurodevelopmental disorders, autism, add ADHD,
• 18:23
  Speaker 1: and reading disorders, epilepsy, traumatic brain injury, PTSD, and tonightis
• 18:29
  Speaker 1: as outlined in my attached CV Exhibit one. I have
• 18:32
  Speaker 1: co authored more than one hundred scientific articles and book
• 18:35
  Speaker 1: chapters in support of my work. I have received more
• 18:38
  Speaker 1: than ten million in funding from federal, state, and philanthropic sources,
• 18:43
  Speaker 1: including the National Institutes of Health and National Science Foundation,
• 18:47
  Speaker 1: and the Department of Defense. This includes almost four million
• 18:51
  Speaker 1: specifically awarded for my work on neurodevelopmental disorders, including autism.
• 18:57
  Speaker 1: I've been asked by the Defense Counsel in the matter
• 18:59
  Speaker 1: of the State of Idaho vers Brian Colberger, to perform
• 19:03
  Speaker 1: quantitative volumetric analysis of mister Coberger's brain and to comment
• 19:08
  Speaker 1: on the neurobiological nature of his various conditions. In formulating
• 19:13
  Speaker 1: my opinions in matters like this, I routinely rely upon
• 19:16
  Speaker 1: my training and experience, the scientific literature, and client related
• 19:20
  Speaker 1: data and reports collected directly by myself or other professionals,
• 19:24
  Speaker 1: including radiologists, neurologists, psychiatrists, and psychologists. It's my understanding that
• 19:31
  Speaker 1: mister Coberger has received several diagnoses for appropriate and qualified
• 19:36
  Speaker 1: doctors for purposes of this declaration. For this motion, I
• 19:39
  Speaker 1: am addressing only three A autism spectrum disorder level one
• 19:44
  Speaker 1: without accompanying intellectual or language impairment, B developmental coordination disorder,
• 19:50
  Speaker 1: and C obsessive compulsive disorder with absent insight. It's also
• 19:56
  Speaker 1: my understanding that the State of Idaho has requested that
• 19:59
  Speaker 1: the court issue order in laminae prohibiting defendant from offering
• 20:03
  Speaker 1: testimony regarding neuropsychological evaluation and psychiatric evaluation of the defendant
• 20:09
  Speaker 1: in the guilt innocence phase of the trial. The state
• 20:12
  Speaker 1: argument relates to Idaho Code section eighteen two seven, which
• 20:16
  Speaker 1: provides that mental condition shall not be a defense to
• 20:19
  Speaker 1: any charge criminal conduct, except expert evidence on the issue
• 20:24
  Speaker 1: of any state of mind, which is an element of
• 20:26
  Speaker 1: the offense Idaho Code eighteen two seven to one and three.
• 20:32
  Speaker 1: In considering this, it therefore becomes relevant to distinguish diagnosis
• 20:36
  Speaker 1: and have evaluations related to mental verst physical conditions. I
• 20:40
  Speaker 1: have therefore been asked to discuss the relevant scientific evidence
• 20:44
  Speaker 1: with respect to ASD, DCD and OCD. As an expert neuroscientist,
• 20:50
  Speaker 1: I recognize three general categories of conditions that can impact
• 20:54
  Speaker 1: a person's functional abilities and state of mind. Almost all
• 20:57
  Speaker 1: conditions associated with psychological deay function have some neurobiological correlates
• 21:03
  Speaker 1: that in part vulnerabilities, but in most instances these are
• 21:07
  Speaker 1: not immediate causative factors. For example, consider a person who
• 21:12
  Speaker 1: experiences substantative depressive symptoms following a divorce. Unlike major depressive disorder,
• 21:18
  Speaker 1: which has strong neurobiological underpinning, the most likely appropriate diagnosis
• 21:23
  Speaker 1: in this situation would be an adjustment disorder. Adjustment disorders
• 21:28
  Speaker 1: can be associated with some biological dysregulation, but few would
• 21:32
  Speaker 1: argue that adjustment disorder is not a mental condition. In contrast,
• 21:36
  Speaker 1: some state of mind changes clearly reflect physical biological factors.
• 21:41
  Speaker 1: For example, als sometimes leads to mental health impairments such
• 21:45
  Speaker 1: as violence and disinhibition. These are most commonly a direct
• 21:50
  Speaker 1: consequence of structural and functional disruption of frontal low brain circuits,
• 21:55
  Speaker 1: as induced by the als. Here, the psychological disturbance should
• 21:59
  Speaker 1: not be considered a mental condition as it has clear
• 22:02
  Speaker 1: neurobiological basis separate from extreme psychological factors. Finally, there are
• 22:08
  Speaker 1: some conditions in the gray area with strong neurobiological and
• 22:12
  Speaker 1: psychological underpinning. For example, rachnophobia furis spiders has both biological
• 22:18
  Speaker 1: and psychological underpinnings. It's clearly triggered in relationship to external factors,
• 22:24
  Speaker 1: but it reflects an abnormal biological response of the brain,
• 22:29
  Speaker 1: as outlined by doctor Or in Exhibit D seven B.
• 22:32
  Speaker 1: Mister Koberger has multiple diagnostic conditions identified by qualified doctors.
• 22:38
  Speaker 1: In my opinion, these conditions span the range from neurodevelopmental
• 22:42
  Speaker 1: to mental conditions. Herein I will discuss the subset of
• 22:45
  Speaker 1: three conditions autism spectrum disorder, developmental coordination disorder, and obsessive
• 22:51
  Speaker 1: compulsive disorder, which are predominantly neurobiological rather than mental and
• 22:56
  Speaker 1: relevant to the guilt innocent phase of the trial as
• 22:59
  Speaker 1: argued by Council. References are provided in Exhibit two. The
• 23:03
  Speaker 1: other conditions may be relevant to a sentencing phase of
• 23:06
  Speaker 1: a trial if this case proceeds that far, and therefore
• 23:10
  Speaker 1: will be discussed in a separate report Autism spectrum disorder
• 23:14
  Speaker 1: Level one without intellectual or language impairment, Mister Coberger has
• 23:19
  Speaker 1: a current diagnosis of autism spectrum disorder. On the one hand,
• 23:24
  Speaker 1: his overall level of intellectual function and his general language
• 23:28
  Speaker 1: skills have been adequate to allow him to complete a
• 23:30
  Speaker 1: master's degree, but neuropsychological evaluation reveals deficits in several subdomains,
• 23:37
  Speaker 1: including motor skills, processing speed, and executive function. Perhaps most importantly,
• 23:42
  Speaker 1: he demonstrates substantative impairments in social cognition that date back
• 23:47
  Speaker 1: to early childhood. As noted by doctor Orr, he demonstrates
• 23:51
  Speaker 1: anomalies and nonverbal communication e g. Poor integration of verbalizations
• 23:56
  Speaker 1: and eye contact, limited use of descriptive gestures, restricts did
• 24:00
  Speaker 1: range of effect and a typical tone. Poor social emotional
• 24:04
  Speaker 1: reciprocity eg. Self focused conversation, awkward interaction, limited perspective talking,
• 24:10
  Speaker 1: limited sharing of effect emotions of others, and impaired relationships eg.
• 24:15
  Speaker 1: Superficial and logical descriptions of relationships, poor insight into his
• 24:21
  Speaker 1: role in relationships, all consistent with autistic patterns. Whereas most
• 24:26
  Speaker 1: patients with autism spectrum disorder ASD demonstrate intellectual and language impairments.
• 24:32
  Speaker 1: It's well established that there is a significant minority of
• 24:34
  Speaker 1: patients like Brian, where the dominant dysfunction is selectively seen
• 24:39
  Speaker 1: with respect to social cognition. In part, this likely reflects
• 24:43
  Speaker 1: the neurobiological reality of relatively distinct brain networks for language
• 24:48
  Speaker 1: verse social skills. Whereas there was a brief period of
• 24:52
  Speaker 1: history where autism was thought to be a psychological response
• 24:56
  Speaker 1: to environmental factors eg. Refrigerator parents than half a century,
• 25:01
  Speaker 1: it has been almost universally recognized to have a strong
• 25:05
  Speaker 1: biological basis. Indeed, although ASD diagnostic criteria are most formally
• 25:11
  Speaker 1: described within the DSMV Diagnostic and Statistical Manual of Mental Disorders,
• 25:16
  Speaker 1: the DSM clearly indicates the ASD to be a neuro
• 25:19
  Speaker 1: developmental disorder. Evidence that the ASDs are of a neurodevelopmental
• 25:25
  Speaker 1: and physical biological origin and not a mental condition caused
• 25:29
  Speaker 1: by external psychological factors or events comes from several sources,
• 25:34
  Speaker 1: including timeline of development, with typical onset prior to three
• 25:38
  Speaker 1: years of age, with many parents recognizing signs as early
• 25:41
  Speaker 1: as six months of age, very strong heritability estimated concordance
• 25:47
  Speaker 1: in identical twins sixty percent, with some chromosomal abnormalities leading
• 25:52
  Speaker 1: to very high incidents of comorbid autism, high co morbidity
• 25:58
  Speaker 1: with other clearly neurobiologes logical conditions, including epilepsy. More than
• 26:03
  Speaker 1: thirty percent of people with ASD experienced seizures by adolescents,
• 26:07
  Speaker 1: and upwards of sixty percent show epilepticform activity on EEG.
• 26:13
  Speaker 1: Strong evidence of brain abnormalities through autopsy, imaging, electrophysiology, and
• 26:19
  Speaker 1: neurochemical assessments. For Brian specifically, there is objective evidence of
• 26:24
  Speaker 1: disrupted brain structure in several nodes of the social network,
• 26:28
  Speaker 1: as outlined in detail and Exhibit three. Volumetric analysis of
• 26:32
  Speaker 1: magnetic resonance imaging data for Brian's brain reveals several brain
• 26:36
  Speaker 1: areas to demonstrate volume within the lowest ten percent diile
• 26:40
  Speaker 1: as compared to all sex in age range plus five
• 26:43
  Speaker 1: years match neurotypical control subjects drawn from a normative database
• 26:49
  Speaker 1: of over ten thousand subjects. Of particular relevance is evidence
• 26:53
  Speaker 1: of reduced volume of the left and right fusiform gyr,
• 26:57
  Speaker 1: the left and right orbital frontal area, and the left
• 26:59
  Speaker 1: temper pole and the right anterior singulate area. All regions
• 27:04
  Speaker 1: within the brain social network. The fus form, especially of
• 27:08
  Speaker 1: the right, is especially important for the recognition and evaluation
• 27:12
  Speaker 1: of the emotional characteristics of faces. The orbital frontal cortex
• 27:16
  Speaker 1: plays a key role in the emotional regulation of behavior.
• 27:20
  Speaker 1: The temporal pole plays a crucial role in social and
• 27:23
  Speaker 1: emotional processing, especially with respect to the integration of complex
• 27:28
  Speaker 1: perceptual inputs and visceral emotional responses. The anterior cingulate is
• 27:34
  Speaker 1: critical for social decision making and supporting empathy, pro social behavior,
• 27:39
  Speaker 1: and processing information about others' motivations. Developmental coordination disorder DCD
• 27:45
  Speaker 1: is a neuro developmental condition that can occur with but
• 27:49
  Speaker 1: which is distinct from, the ASDs. Also known as dyspraxia,
• 27:54
  Speaker 1: DCD is characterized by impairments in the development of motor
• 27:59
  Speaker 1: coordination inclines, voting, dexterity, limb speed, and gross and fine
• 28:02
  Speaker 1: motor skills. Like the ASD's, dyspraxia has high heritability on
• 28:08
  Speaker 1: the order of seventy percent, a strong indication of biological etiology.
• 28:13
  Speaker 1: DCD is associated with structural and functional disruption of motor
• 28:17
  Speaker 1: control and coordination networks with minimum modulation by psychological factors.
• 28:23
  Speaker 1: It is noteworthy that Brian continues to show evidence of
• 28:26
  Speaker 1: significant motor and coordination issues as revealed through formal testing
• 28:30
  Speaker 1: with doctor or obsessive compulsive disorder with absent insight. Brian
• 28:36
  Speaker 1: reportedly developed compulsive hand washing behaviors as a young child,
• 28:40
  Speaker 1: a fear of getting things in his eyes, and an
• 28:42
  Speaker 1: avoidance of germs. There is a substantial evidence that OCD
• 28:46
  Speaker 1: is primarily a neurobiological disorder, although it is not necessarily
• 28:50
  Speaker 1: a neurodevelopmental disorder. Evidence supports for its biological basis include
• 28:56
  Speaker 1: a large study of over fifteen thousand twin pairs indicates
• 28:59
  Speaker 1: that the heritability of OCD to buy about forty seven percent.
• 29:04
  Speaker 1: OCD can actually be caused by certain viral infections, including
• 29:08
  Speaker 1: strep infection, which can lead to autoimmune condition. PANDAS imaging
• 29:13
  Speaker 1: studies also demonstrate a clear neurobiology for OCD with disruption
• 29:18
  Speaker 1: of the cordico striato philamo cortical loop. Importantly, this loop
• 29:24
  Speaker 1: includes the anterior cingulate and orbital frontal cortesses regions and
• 29:28
  Speaker 1: overlaps with the neurobiology of ASDs and which were found
• 29:33
  Speaker 1: to be disrupted on Brian's MRI. The severity and timing
• 29:36
  Speaker 1: of OCD behavior is admittedly partly influenced by psychological factors,
• 29:41
  Speaker 1: including stress. Also, the specific nature of each person's obsessions
• 29:46
  Speaker 1: and compulsions probably relate to learn factors rather than core neurobiology.
• 29:51
  Speaker 1: In general, OCD is not considered to be neurodevelopmental condition
• 29:55
  Speaker 1: per se, but it is biological in nature, and then
• 29:58
  Speaker 1: Brian's case manifested early in development. In summary, based on
• 30:02
  Speaker 1: my training experience, review of the scientific literature, and the
• 30:05
  Speaker 1: available data and reports on mister Colberger, I believe that
• 30:09
  Speaker 1: the conditions discussed above are a clear neurobiological and physical ideology.
• 30:15
  Speaker 1: Brian's developmental coordination disorder and autism spectrum disorder are specifically
• 30:20
  Speaker 1: neurodevelopmental conditions with physical origins in his brain structure and function.
• 30:26
  Speaker 1: His OCD also has predominantly neurobiological basis, although it's modulated
• 30:32
  Speaker 1: by psychological factors. This document was signed on March sixteenth,
• 30:37
  Speaker 1: twenty twenty five, and it was signed by doctor Lewine.
• 30:40
  Speaker 1: All of the information that goes with this episode, including
• 30:43
  Speaker 1: my contact information, can be found in the description box.
• 30:47
  Speaker 1: What's up everyone, and welcome back to the program. Our
• 30:51
  Speaker 1: look at the core documents of a Moscow is going
• 30:53
  Speaker 1: to continue in this episode, and this time we're taking
• 30:57
  Speaker 1: a look at Brian Kolberger's reply to the States where
• 31:00
  Speaker 1: response to Brian Colberger's motion to strike the death penalty
• 31:05
  Speaker 1: Autism Spectrum Disorder Case number c R zero one DASH
• 31:10
  Speaker 1: twenty four DASH three one sixty sixty five, State of
• 31:13
  Speaker 1: Idaho Plaintiff first Brian C. Coburger comes now Brian C.
• 31:18
  Speaker 1: Coburger buying through his attorney of record, and hereby replies
• 31:22
  Speaker 1: to the State's response to Defendant's motion to strike death
• 31:24
  Speaker 1: penalty Autism Spectrum Disorder, filed on March seventeenth, twenty twenty five.
• 31:30
  Speaker 1: Mister Coburger relies on his right to be free from
• 31:33
  Speaker 1: cruel and unusual punishment, his right to do process, his
• 31:37
  Speaker 1: right to affair trial, his right to counsel, his right
• 31:40
  Speaker 1: to present a defense, his right to a reliable sentencing determination,
• 31:44
  Speaker 1: and other rights safeguarded by the fifth, sixth, eighth, and
• 31:49
  Speaker 1: fourteenth Amendments of the United States Constitution and Article one,
• 31:53
  Speaker 1: Section one, two, six and seven, and thirteen of the
• 31:56
  Speaker 1: Idaho State Constitution. Mister Coburger in corprits herein Defendant's response
• 32:02
  Speaker 1: to State's motion in Lemanae neuropsychological and psychiatric evidence filed
• 32:07
  Speaker 1: March seventeenth, twenty twenty five. That response provides neuroimaging showing
• 32:12
  Speaker 1: that ASD has both physical and biological factors. The argument
• 32:18
  Speaker 1: the Atkins standard for intellectual disability is much more than
• 32:22
  Speaker 1: low iq. Atkins Verus, Virginia, two thousand and two. Mister
• 32:27
  Speaker 1: Kolberger fits the criteria set forth in Atkins in the
• 32:30
  Speaker 1: following ways impairment in communication, reasoning, social skills, and understanding
• 32:36
  Speaker 1: the reactions of others. His deficits developed at an early
• 32:39
  Speaker 1: age and continue to present to this day. ASD is
• 32:43
  Speaker 1: not something you want outgrows very early in his education.
• 32:47
  Speaker 1: He was treated as a child with special needs, evaluated psychologically,
• 32:51
  Speaker 1: and provided with instructional support. He was observed as rocking
• 32:56
  Speaker 1: in the classroom, inattentive, and he had poor fine motor skills.
• 33:00
  Speaker 1: He received reading support, speech therapy, reminders to stay on task,
• 33:05
  Speaker 1: more time for homework, and organizational support. He lacks social
• 33:09
  Speaker 1: emotional reciprocity and had few friends. He did not understand
• 33:13
  Speaker 1: nonverbal communicative behaviors used for social interaction, and he had
• 33:18
  Speaker 1: an inability to develop, maintain, and understand relationships. The state
• 33:23
  Speaker 1: seeks death when mister Coberger is a person with an
• 33:26
  Speaker 1: intellectual and neurodivergent physical disability. Like people with intellectual disabilities,
• 33:32
  Speaker 1: mister Colberger's adaptive functioning is impaired. He lacks the skills
• 33:37
  Speaker 1: the function in the real world of daily living, self care, socialization,
• 33:41
  Speaker 1: and communication. People with an IQ above seventy can still
• 33:45
  Speaker 1: qualify as intellectually disabled due to diminished adaptive function. Hall
• 33:50
  Speaker 1: versus Florida five seventy two seven oh one, twenty fourteen.
• 33:55
  Speaker 1: The DSM clearly states that intelligence is not a hedge
• 33:58
  Speaker 1: against severe deficits in social functioning. Even those with average
• 34:03
  Speaker 1: or higher intelligence have an uneven profile of abilities. The
• 34:07
  Speaker 1: gap between intellectual and adaptive functioning skills is often large.
• 34:12
  Speaker 1: The state is misguided in its argument that mister Kolberger
• 34:15
  Speaker 1: has the least severe form of ASD in support of
• 34:18
  Speaker 1: its position that his disability is not atkins or roper qualifying.
• 34:23
  Speaker 1: In the United States versus Whosyth eighteen CR. Kansas twenty eighteen,
• 34:30
  Speaker 1: the Court dispelled the misconception among people that high functioning
• 34:34
  Speaker 1: or mild autism terms used by researchers to denote individuals
• 34:38
  Speaker 1: with average intelligence and communication skills does not result in
• 34:42
  Speaker 1: severe impairments. The court specifically rejected the contention that the
• 34:46
  Speaker 1: defendants asd is mild because he has a high IQ,
• 34:50
  Speaker 1: had attended college and could drive a car usith and
• 34:54
  Speaker 1: full scale IQ of one twenty three. But despite his
• 34:57
  Speaker 1: high IQ, the court stated, whos Sai is severely impaired
• 35:01
  Speaker 1: and in many areas functions at the level of an
• 35:04
  Speaker 1: eight year old child. The court considered evidence that demonstrated
• 35:08
  Speaker 1: that the defendant struggled with daily living skills in socialization
• 35:12
  Speaker 1: despite his high intelligence. Intelligence is not a hedge against
• 35:16
  Speaker 1: severe impairment of adaptive functional ability, the court stated. Another
• 35:21
  Speaker 1: example of the inappropriate reliance of a court on the
• 35:25
  Speaker 1: term mild is the Fourth Circuit. In US verse Zuke,
• 35:29
  Speaker 1: Fourth Circuit, twenty seventeen, the trial court sentence was overturned
• 35:33
  Speaker 1: on appeal and remanded, largely because mister Zeke's autism being
• 35:37
  Speaker 1: described in the record as mild autism and the correlative
• 35:41
  Speaker 1: failure to do adaptive testing, which would have illustrated the
• 35:44
  Speaker 1: true degree to which mister Zeke was impaired in relevant ways.
• 35:49
  Speaker 1: The state relies on cases that do not address the facts.
• 35:52
  Speaker 1: In this case, it cites Us verse Roof ten f.
• 35:56
  Speaker 1: Dot fourth three fourteen three eighty twenty twenty one, which
• 36:00
  Speaker 1: does not stand for the proposition that ASD is not
• 36:03
  Speaker 1: included in falling under Atkins. In Roof, the court focused
• 36:07
  Speaker 1: only on IQ as there was no full development of
• 36:10
  Speaker 1: an intellectual disability. The state's reliance on Dunlap and Pezuto
• 36:15
  Speaker 1: are equally misplaced, as the issues related to mental disability
• 36:19
  Speaker 1: were different. In Pezuto, the court hinged its decision on
• 36:23
  Speaker 1: a lack of data before age eighteen, and there was
• 36:25
  Speaker 1: no claim of ASD Pazuto verse State one forty six, Idaho,
• 36:29
  Speaker 1: two thousand and eight. In Dunlap, the argument focused on
• 36:33
  Speaker 1: mental illness and ASD was not a claim. State vers. Dunlap,
• 36:37
  Speaker 1: one fifty five, Idaho, twenty thirteen. Akins stated three reasons
• 36:42
  Speaker 1: why in that case the capital punishment was inappropriate. Less
• 36:46
  Speaker 1: culpability does not merit death, The death penalty does not
• 36:49
  Speaker 1: act as a deterrent for the intellectually disabled, and impairments
• 36:53
  Speaker 1: of the intellectually disabled can jeopardize the fairness of their proceedings.
• 36:57
  Speaker 1: These same factors apply and mister Kolberg case lesser culpability,
• 37:03
  Speaker 1: Mister Coberger has at all times asserted his innocence. Should
• 37:07
  Speaker 1: he be convicted of this crime, his neurological physical disorder
• 37:11
  Speaker 1: may very well be the reason the jury misjudgesm The
• 37:14
  Speaker 1: public sentiment of prejudice against him in prejudgment of guilt
• 37:17
  Speaker 1: resulted in a change of venue. Media coverage continues to
• 37:21
  Speaker 1: be negative, with an overall continued narrative claiming his guilt.
• 37:25
  Speaker 1: The reality is that he is in fact in a
• 37:27
  Speaker 1: category of persons who are less culpable. It's widely recognized
• 37:31
  Speaker 1: that autism does affect culpability, moral reasoning, and the ability
• 37:35
  Speaker 1: to foresee consequences of social interaction and process. People with
• 37:40
  Speaker 1: ASD face a childhood of victimization by their typically developing
• 37:44
  Speaker 1: peers because they are misunderstood. Inevitably, misunderstanding is going to
• 37:49
  Speaker 1: reprise itself in the court room, setting to the great
• 37:52
  Speaker 1: disadvantages of the autistic accused facing typically developed jurors. In
• 37:57
  Speaker 1: USA Verse Shore, seventeen five two, Pennsylvania July seventh, twenty twenty,
• 38:04
  Speaker 1: District Court Judge Timothy J. Savage stated, autism is a
• 38:08
  Speaker 1: neurodevelopmental disability involving the brain. It is characterized by the
• 38:12
  Speaker 1: presence of narrow repetitive behavior, and differences in difficulties in
• 38:17
  Speaker 1: social interaction, communication, and adjusting to change. A person suffering
• 38:22
  Speaker 1: from ASD is neurologically impaired in his ability to appreciate
• 38:27
  Speaker 1: the unacceptability of his conduct or why this conduct is unacceptable.
• 38:31
  Speaker 1: Because of his difficulty observing social norms. An ASD individual
• 38:35
  Speaker 1: may engage in socially disapproved or unacceptable behavior with no
• 38:40
  Speaker 1: consciousness of wrongdoing or real sense of how his behavior
• 38:44
  Speaker 1: is viewed by others. But the same factor is bearing
• 38:47
  Speaker 1: on juvenile's mental development and appreciation of his wrongdoing are
• 38:51
  Speaker 1: present in the case of a defendant with ASD. Sure
• 38:56
  Speaker 1: like others with ASD, shares the same characteristics with juveniles,
• 39:00
  Speaker 1: whom the Supreme Court is found are constitutionally different from
• 39:03
  Speaker 1: adults for purposes of sentencing Miller versus Alabama, five p.
• 39:07
  Speaker 1: Sixty seven US four sixty These include immaturity, impulsivity, and
• 39:13
  Speaker 1: failure to appreciate the risks and consequences of their actions.
• 39:17
  Speaker 1: The same analysis applies here. Death penalty is a deterrent.
• 39:22
  Speaker 1: It's well known that the death penalty is no deterrent
• 39:24
  Speaker 1: at all, and that's the reason that many states have
• 39:28
  Speaker 1: eliminated it, it's not a deterrent for anyone. Moreover, the
• 39:32
  Speaker 1: state argues that the death penalty does not act as
• 39:35
  Speaker 1: a deterrent for the intellectually disabled because they cannot process
• 39:39
  Speaker 1: the possibility of execution as a penalty. To the contrary,
• 39:43
  Speaker 1: Autism is often conceptualized as an executive functioning disorder. Part
• 39:48
  Speaker 1: of executive functioning is the ability to foresee consequences and
• 39:51
  Speaker 1: adjusting behavior to optimize one's course of action to obtain
• 39:55
  Speaker 1: beneficial and avoid negative consequences. Sir Coburger suffers from executive
• 40:02
  Speaker 1: function deficiencies such as disorganization and inability to plan ahead.
• 40:07
  Speaker 1: Impairment of intellectually disabled. Mister Coburger does have a diminished
• 40:11
  Speaker 1: ability to understand and process information, to learn from experience,
• 40:16
  Speaker 1: to engage in logical reasoning, and to control impulses. As
• 40:21
  Speaker 1: explained in the expert reports, he has poor working memory,
• 40:24
  Speaker 1: engages in a repetitive behaviors, and poor impulse control. His
• 40:29
  Speaker 1: neurological divergence is supported in neuroimaging. Persons with ASD make
• 40:33
  Speaker 1: poor witnesses. Research shows that if the jury is not
• 40:36
  Speaker 1: informed of the defendant's diagnosis of ASD, the impact of
• 40:40
  Speaker 1: a negative impression of demeanor may have a detrimental implication
• 40:44
  Speaker 1: for defendants with ASD. Perlin and Cucolo IV emphasize the
• 40:49
  Speaker 1: need for protections in these areas because the operation of
• 40:52
  Speaker 1: autistic traits makes it much more difficult for individuals with
• 40:56
  Speaker 1: ASD in the criminal justice system, especially when their fate
• 41:00
  Speaker 1: is to be decided by jurors who may not be
• 41:03
  Speaker 1: familiar with autism or who might be familiar with it
• 41:06
  Speaker 1: based on television stereotype, and who regularly consider demeanor evidence
• 41:11
  Speaker 1: and their audiosyncratic perceptions of how demeanor can be translated
• 41:15
  Speaker 1: into remorse, empathy, motive, and more inevaluating a witness's credibility.
• 41:21
  Speaker 1: Mister Colberger's ASD makes a fair and just trial a challenge.
• 41:26
  Speaker 1: The state argues news coverage is not informative on this topic.
• 41:29
  Speaker 1: The state benefits from the bias news media public sentiment
• 41:33
  Speaker 1: is that mister Colberger's physical presentation makes him look guilty
• 41:37
  Speaker 1: through no fault of his own. His flat effect, intense gaze,
• 41:41
  Speaker 1: awkward body posture, holding still in the courtroom, inability to
• 41:45
  Speaker 1: react and process what is happening in the courtroom, and
• 41:48
  Speaker 1: inability to show emotion could cause enough juror bias to
• 41:51
  Speaker 1: convict him without a doubt. His ability to testify and
• 41:54
  Speaker 1: trial and the decision to testify will nearly be impossible
• 41:58
  Speaker 1: for mister Colberger. He has no ability to perceive what
• 42:02
  Speaker 1: it will feel like and whether he should in fact testify.
• 42:05
  Speaker 1: His inability to read the room, understand the threat that
• 42:09
  Speaker 1: cross examination will present, or explain himself in socially acceptable
• 42:13
  Speaker 1: ways without prosody of speech presents insurmountable hurdles for him.
• 42:18
  Speaker 1: The state picked fragmented sentences in the expert reports to
• 42:22
  Speaker 1: support its position that mister Colberger does not present with
• 42:25
  Speaker 1: asd challenges. In doing so, the state cannot be more
• 42:29
  Speaker 1: wrong in comparing mister Kolberger's ability to testify in a
• 42:32
  Speaker 1: court room to the average person. He suffers from multiple
• 42:36
  Speaker 1: vulnerabilities impacting first deciding whether or not to testify, and
• 42:40
  Speaker 1: then competently testifying with no ability to eliminate the physical
• 42:44
  Speaker 1: conditions that exist within his body due to his divergence.
• 42:49
  Speaker 1: He fits exactly the Atkins typical poor witness. The failure
• 42:53
  Speaker 1: of the police or a court to consider the extent
• 42:56
  Speaker 1: to which the appearance of the accused is accounted for
• 42:59
  Speaker 1: by his autism has resulted in reversals on purely evidentiary
• 43:03
  Speaker 1: sufficiency grounds. See State vers. Suber two thousand and eight,
• 43:08
  Speaker 1: Minnesota two thousand and eight. Failure to rule out ASD
• 43:12
  Speaker 1: as the cause of impairment in operating motor vehicle as
• 43:15
  Speaker 1: opposed to marijuana. United States versus Coatrel. Ninth Circuit two
• 43:18
  Speaker 1: thousand and nine, reversal for failure to consider evidence of
• 43:21
  Speaker 1: Asperger's condition in determining the specific intent required for conviction. Finally,
• 43:27
  Speaker 1: the state argues that mister Colberger is competent, and for
• 43:30
  Speaker 1: that reason Atkins does not apply. Competence is constantly being assessed,
• 43:34
  Speaker 1: and the reason doctor Ryan's report refers to the issue
• 43:38
  Speaker 1: is because his ASD impacts his ability to assist counsel
• 43:42
  Speaker 1: and understand the proceedings he faces. He has an inability
• 43:46
  Speaker 1: to assist with mitigation evidence and understand the magnitude of
• 43:49
  Speaker 1: his case. By the way of example, when he was
• 43:52
  Speaker 1: arrested in his home with a full swat team, doors broken,
• 43:55
  Speaker 1: and parent ziptide, he made small talk with the detectives
• 43:59
  Speaker 1: in the back of a car. During the ride to
• 44:01
  Speaker 1: the police station. He asked the officer about his education
• 44:04
  Speaker 1: and suggested that they get coffee at a later date.
• 44:07
  Speaker 1: He did not receive the profoundly serious nature of the
• 44:10
  Speaker 1: moment and exhibited no perception of what was happening. While
• 44:14
  Speaker 1: competency has not been raised in this case, at this time,
• 44:17
  Speaker 1: mister Colberger's team and assisting experts are constantly analyzing the
• 44:21
  Speaker 1: issue conclusion. For all the reasons addressed above and in
• 44:26
  Speaker 1: mister Colberger's initial brief, the death penalty must be struck
• 44:29
  Speaker 1: as a possible penalty in this case. The court has
• 44:32
  Speaker 1: notified the parties at fifteen minutes will be allowed on
• 44:35
  Speaker 1: this motion. This is a matter that requires an evidentiary
• 44:39
  Speaker 1: hearing with expert testimony. Mister Colberger will continue to pursue
• 44:43
  Speaker 1: his legal issue throughout the trial if this motion is denied.
• 44:47
  Speaker 1: Given his disability, a jury should never be allowed to
• 44:50
  Speaker 1: consider putting him to death. This document was dated March
• 44:54
  Speaker 1: twenty fourth, twenty twenty five, and it was signed by
• 44:57
  Speaker 1: Elisa G. Massoff. All of the information that goes with
• 45:01
  Speaker 1: this episode, including my contact information, can be found in
• 45:05
  Speaker 1: the description box.