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Mega Edition: Kohberger's Motion To Strike Death Penalty On Grounds Of Speedy Trial Is Denied (8/26/26) · 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 spinning back up to Moscow and we're
• 0:05
  Speaker 1: going to take a look at some more core documents
• 0:08
  Speaker 1: that have recently hit the docket. And this time we're
• 0:11
  Speaker 1: going to start taking a look at the motion to
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  Speaker 1: strike the death penalty on grounds of state speedy trial
• 0:16
  Speaker 1: preventing effective assistance of council. Case numbers CR twenty nine,
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  Speaker 1: Dash twenty two DASH twenty eighth five State of Idaho
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  Speaker 1: Plaintiff versus Brian C. Coberger. The defendant comes now, Brian C.
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  Speaker 1: Coburger buy and through his attorneys of record, and hereby
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  Speaker 1: moves this Honorable Court for an order striking the State's
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  Speaker 1: notice pursuant to Idaho Code Section nineteen for zero zero
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  Speaker 1: four to A on the grounds that Idaho's statutory and
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  Speaker 1: on constitutional guarantee to a speedy trial prevents effective assistance
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  Speaker 1: of counsel and death penalty cases. The issues one. Idaho
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  Speaker 1: requires all criminal defendants to be brought to trial in
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  Speaker 1: six months from the arraignment on an indict men pursuant
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  Speaker 1: to statute and its constitution A. In Idaho, the right
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  Speaker 1: to a speedy trial is defined by IC Section nineteen
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  Speaker 1: thirty five oh one as it was at the time
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  Speaker 1: of the adoption of the constitution. One, the Idaho Constitution
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  Speaker 1: guarantees a speedy trial, except where there is good cause
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  Speaker 1: for delay or the request for postponement came from the defendant.
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  Speaker 1: Two the Idaho Constitution requires a fixed amount of time
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  Speaker 1: constitute undue delay. This court should adopt the six month
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  Speaker 1: line adopted by our legislature. B A defendant in Idaho
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  Speaker 1: can never request additional time without losing his right to
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  Speaker 1: a speedy trial. Two, a capital case cannot be prepared
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  Speaker 1: in ten months. And three Idaho cannot force a defendant
• 1:47
  Speaker 1: to choose between his rights the procedural history. On November thirteenth,
• 1:53
  Speaker 1: twenty twenty two, law enforcement found the bodies of Madison Mogan, Killigan, Salvis,
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  Speaker 1: Zana Kernodle, and E Shapin. On December thirtieth, twenty twenty two,
• 2:03
  Speaker 1: law enforcement arrested mister Coberger at his parents' home in Pennsylvania.
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  Speaker 1: Mister Colberger, current council, filed for a limited appearance the
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  Speaker 1: same day. His first appearance in court in Idaho was
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  Speaker 1: January fifth, twenty twenty three. On January twelfth, twenty twenty three,
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  Speaker 1: mister Coeberger filed a notice of appearance, request for timely
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  Speaker 1: preliminary hearing, motion for bell reduction, and notice of hearing,
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  Speaker 1: which contained a demand for speedy trial pursuanto the sixth
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  Speaker 1: and fourteenth Amendments to the United States Constitution, Article one,
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  Speaker 1: Section seven thirteen, and eighteen of the Idaho Constitution and
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  Speaker 1: I see Section nineteen dash thirty five oh one. While
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  Speaker 1: mister Coburger prepared for a preliminary hearing, the state convened
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  Speaker 1: a grand jury on May twelfth, and by May sixteenth,
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  Speaker 1: twenty twenty three, and had an indictment for mister Colberger
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  Speaker 1: on four charges of murder in the first degree and
• 2:58
  Speaker 1: account of burglary. This Court arragn mister Coburger on May
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  Speaker 1: twenty second, twenty twenty three. On May twenty third, twenty
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  Speaker 1: twenty three, pursuing to mister Coberger's right to a speedy trial,
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  Speaker 1: this Court set mister Coberger's jury trial for October second,
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  Speaker 1: twenty twenty three, a mere ten months from his arrest.
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  Speaker 1: On August twenty third, twenty twenty three, mister Colberger waved
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  Speaker 1: his right to a speedy trial in order to secure
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  Speaker 1: his right to effective assistance of counsel the argument. Idaho
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  Speaker 1: requires all criminal defendants to be brought to trial in
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  Speaker 1: six months from the arraignment on an indictment pursuant to
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  Speaker 1: statute and its constitution. Pursuant Idaho Codes Section nineteen thirty
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  Speaker 1: five oh one two and five, a court must order
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  Speaker 1: the prosecution or indictment to be dismissed unless good cause
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  Speaker 1: to the country is shown If a defendant whose trial
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  Speaker 1: who has not been postponed upon his application is not
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  Speaker 1: brought to trial within six months from the date that
• 3:54
  Speaker 1: information is filed with the court. When a defendant who
• 3:58
  Speaker 1: invokes their statutory speedy trial run is not brought to
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  Speaker 1: trial within six months and shows that the trial was
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  Speaker 1: not postponed at his request, the burden then shifts to
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  Speaker 1: the state to demonstrate good cause for the delay. Good
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  Speaker 1: cause means that there was a substantial reason for the
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  Speaker 1: delay that rises to the level of legal excuse. Previously,
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  Speaker 1: there was not a fixed rule for determining good cause
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  Speaker 1: for the delay of a trial, and the matter was
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  Speaker 1: left to the discretion of the trial court. The Idaho
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  Speaker 1: Supreme Court has held that a thorough analysis of the
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  Speaker 1: reasons for the delay represents the soundest method for determining
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  Speaker 1: what constitutes good cause, and the court may rely in
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  Speaker 1: part on the Barker factors. Article one, section thirteen also
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  Speaker 1: protects the defendant's right to a speedy trial. As will
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  Speaker 1: be shown, the Idaho Supreme Court has wrongfully deviated from
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  Speaker 1: the right as it was defined by the Framers. Additionally,
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  Speaker 1: one of the underpinnings of the right, what constitutes undue delay,
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  Speaker 1: has ceased to exist and must be reinterpreted in the
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  Speaker 1: context of the model court system A. In Idaho. The
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  Speaker 1: right to a speedy trial is defined by Idaho Codes
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  Speaker 1: Section nineteen thirty five oh one as it was at
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  Speaker 1: the time of the adoption of the Constitution. When constructing
• 5:12
  Speaker 1: the Idaho Constitution, the primary objective is to determine the
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  Speaker 1: intent of the framers. In Clark, our Supreme Court found
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  Speaker 1: a statute in force at the time our Constitution was
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  Speaker 1: ratified to be controlling. In its interpretation of Article one,
• 5:27
  Speaker 1: section seventeen. In State versus Matthew's one, twenty nine Idaho
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  Speaker 1: eight sixty five, our Court considered the issue of whether
• 5:35
  Speaker 1: search warrants needed to be signed in order to be valid.
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  Speaker 1: The Court found that warrants do need to be signed,
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  Speaker 1: or else such pursue it to such a warrant will
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  Speaker 1: violate Article one, section seventeen of our Constitution. The Court
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  Speaker 1: arrived at this conclusion despite the fact that Article one,
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  Speaker 1: section seventeen is completely silent regarding whether a warrant needs
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  Speaker 1: a signature. The reason the Court was able to find
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  Speaker 1: a constitutional violation in this case was by acknowledging that
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  Speaker 1: the statutes which require a signature pre date the Constitution
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  Speaker 1: of the State of Idaho. Because these statutes which require
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  Speaker 1: a signature on warrants predated the Idaho Constitution, they create
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  Speaker 1: substantative right which existed prior to the adoption of the
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  Speaker 1: state's constitution. In State versus Rausch ninety nine Idaho five
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  Speaker 1: eighty six, five eighty six p. Two D six seventy one,
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  Speaker 1: nineteen seventy eight, our Supreme Court found the defendant was
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  Speaker 1: entitled to a constitutional relief for a violation of IC
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  Speaker 1: nineteen six eleven, not an announce After finding the rights
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  Speaker 1: contained in the statute were long standing at common law
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  Speaker 1: and deeply rooted in our heritage, the rouch Court was
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  Speaker 1: able to trace this deeply rooted heritage all the way
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  Speaker 1: back to sixteen oh three. In this case, IC Section
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  Speaker 1: nineteen thirty five oh one must color the court's interpretation
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  Speaker 1: of Article I, Section thirteen, because this statutory provision was
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  Speaker 1: in a fact at the time of ratification. At the
• 7:03
  Speaker 1: time of the adoption of our Constitution, the eighteen eighty
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  Speaker 1: seven Territorial Criminal Practice Act provided the court, unless good
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  Speaker 1: cause to the contrary is shown, must order the prosecution
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  Speaker 1: of indictment to be dismissed in the following cases if
• 7:18
  Speaker 1: a defendant whose trial has not been postponed upon his
• 7:20
  Speaker 1: application is not brought to trial at the next term
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  Speaker 1: of the court in which the indictment is triable after
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  Speaker 1: it is found. The right to a speedy trial was
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  Speaker 1: certainly well known to the framers of our Constitution. Section
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  Speaker 1: eighty two twelve had been in place for nearly three
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  Speaker 1: years prior to our Constitution's adoption. While the framers felt
• 7:40
  Speaker 1: it unnecessary to lay out the amount of time for
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  Speaker 1: a speedy trial, The reliance on terms of the court
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  Speaker 1: refers to RS. Eighteen eighty seven Section thirty eight thirty one,
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  Speaker 1: which reads as follows. Each term must be held until
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  Speaker 1: the business is disposed of or until a day fixed
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  Speaker 1: for the commencement of such other terms in the district court.
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  Speaker 1: This court may require some explanation for what may seem
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  Speaker 1: a vague directive in terms now only used by the
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  Speaker 1: Supreme Court were to be held until there was nothing
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  Speaker 1: left to do or the judge needed to be elsewhere.
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  Speaker 1: In the days of the territories of our country, it
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  Speaker 1: was unnecessary to employ vast numbers of district judges, as
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  Speaker 1: the cases appropriate for them, as defined in Idaho in
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  Speaker 1: eighteen eighty seven by RS. Eighteen eighty seven, Section thirty
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  Speaker 1: eight thirty, were typically few. In the Idaho territory, three
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  Speaker 1: judges handled all the work of the district courts and
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  Speaker 1: Supreme Court. Each of the three sat at a district judge,
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  Speaker 1: and they sat together as the Supreme Court. They exercised
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  Speaker 1: the jurisdiction of the local or territorial courts and of
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  Speaker 1: federal courts. Dennis C. Coulson Idaho Constitution the tie that
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  Speaker 1: binds two zero five two thousand and three addition, so
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  Speaker 1: as the judge put it in Michigan in eighteen twenty eight, heretofore,
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  Speaker 1: and until recently, the judges of this territory were required
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  Speaker 1: to hold but one term of the court annually, and
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  Speaker 1: that in Detroit. But as the country became more settled,
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  Speaker 1: new counties were organized, and it is deemed expedient to
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  Speaker 1: increase the number of terms and places too, of holding courts.
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  Speaker 1: The Legislative Council of the Territory, under the sanction of
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  Speaker 1: the Act of Congress of the twenty ninth of January
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  Speaker 1: eighteen twenty seven, have at its latest session, directed the
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  Speaker 1: court to beholden in each of the organized counties of
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  Speaker 1: the Peninsula, and given very ample jurisdiction to them, have
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  Speaker 1: required that all or a majority of the judges attend
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  Speaker 1: each term. The consequence of this new organization is that
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  Speaker 1: the judges collectively have now to hold fifteen courts annually
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  Speaker 1: instead of one, and to reverse, mostly on horseback, an
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  Speaker 1: immense country over roads not yet half formed, and some
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  Speaker 1: of which are exceedingly dangerous. The principle of this system
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  Speaker 1: is progressive. The number of courts to be holden will
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  Speaker 1: continue to increase with the advancing settlement of the country.
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  Speaker 1: William Burt Bloom and Elizabeth Gasper Brown Territorial Courts in law.
• 10:09
  Speaker 1: Unifying factors in the development of American legal institutions. Part one.
• 10:13
  Speaker 1: Establishment of a standardized judicial system. In eighteen seventy one,
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  Speaker 1: the Idaho Territorial Supreme Court found that it determined when
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  Speaker 1: these terms were to occur. The Act of March second,
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  Speaker 1: eighteen sixty seven, a mandatory of the fifteenth section of
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  Speaker 1: the Organic Act of Idaho, provides that the Judges of
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  Speaker 1: the Supreme Court of said Territory, or a majority of them, shall,
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  Speaker 1: when assembled at the seat of the Government of said Territory,
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  Speaker 1: to find the judicial districts of said territory, and assign
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  Speaker 1: the judges who may be appointed for said territory to
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  Speaker 1: the several districts. And shall also fix the time and
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  Speaker 1: places for holding court in the several counties or subdivisions
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  Speaker 1: in each of said judicial districts, and alter the times
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  Speaker 1: and places of holding the courts as to them shall
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  Speaker 1: seem proper and convenient. District court terms could be extremely infrequent.
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  Speaker 1: It is also worth noting that the legislature set terms
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  Speaker 1: for the probate courts, which function much like the magistrate
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  Speaker 1: courts we have now. The importance of terms was more
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  Speaker 1: than simply the timing of trials. Until the term was adjourned,
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  Speaker 1: judgments were not considered final and could be revised see
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  Speaker 1: Moore versus Taylor, One, Idaho, six thirty six, thirty five
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  Speaker 1: and eighteen seventy six. When the constitution was adopted, there
• 11:33
  Speaker 1: was a lot of debate over whether to add additional judges.
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  Speaker 1: A vocal part of the delegation, led by William McConnell
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  Speaker 1: of Leta, argue that adding five additional judges to act
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  Speaker 1: solely as district judges was too much expense. When Weldon
• 11:47
  Speaker 1: Hayburn of Shoshone and the Judges argued that all courts
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  Speaker 1: were a month and months behind, McConnell's faction argued it
• 11:54
  Speaker 1: was the lawyers who were to blame. In the end,
• 11:58
  Speaker 1: it was the geography of our state that was to
• 12:00
  Speaker 1: decide the issue. The delegation overwhelmingly supported five new districts
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  Speaker 1: and judges. They rejected thereby a compromise of four districts,
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  Speaker 1: placing two judges in North Idaho and two in South
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  Speaker 1: as clearly unfair to the South, where some would have
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  Speaker 1: to travel twelve hundred miles to get to court. The
• 12:20
  Speaker 1: upshot was Article five, Section eleven, which states the state
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  Speaker 1: shall be divided into five judicial districts, for each of
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  Speaker 1: which a judge shall be chosen by the qualified electors
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  Speaker 1: thereof whose term of office shall be four years, and
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  Speaker 1: there shall be held a district court in each county
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  Speaker 1: at least twice in each year, to continue for such
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  Speaker 1: time in each county as may be prescribed by law.
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  Speaker 1: But the legislature may reduce or increase the number of districts,
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  Speaker 1: district judges, and district attorneys. This section shall not be
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  Speaker 1: construed to prevent the holding of special terms under such
• 12:55
  Speaker 1: regulations as may be provided by law. This Court should
• 12:59
  Speaker 1: note that the Constitution, through the district Judges, were provided
• 13:03
  Speaker 1: some leeway over the court and how it would be
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  Speaker 1: held in various counties. It had to occur at least
• 13:09
  Speaker 1: twice each year, and each term would only conclude when
• 13:12
  Speaker 1: the business was done or the next term was to begin. Additionally,
• 13:17
  Speaker 1: the legislature had and has the power to require special terms,
• 13:21
  Speaker 1: so whether or not the court is held is not
• 13:24
  Speaker 1: up to the judiciary. The right of Idaho citizens to
• 13:27
  Speaker 1: speedy justice, guaranteed by Article I, Section eighteen of our Constitution,
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  Speaker 1: is therefore not solely for the judiciary to define any
• 13:36
  Speaker 1: more than the right to a speedy trial for criminal defendants.
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  Speaker 1: All right, we're going to wrap up with episode one
• 13:41
  Speaker 1: right here, and in the next episode, we're going to
• 13:44
  Speaker 1: pick up with The Idaho Constitution guarantees a speedy trial
• 13:48
  Speaker 1: except where there is good cause for a delay or
• 13:51
  Speaker 1: the request for postponement came from the defendant. All of
• 13:54
  Speaker 1: the information that goes with this episode can be found
• 13:58
  Speaker 1: in the description box. What's up everyone, and welcome back
• 14:01
  Speaker 1: to the program. In this episode, we're picking up where
• 14:04
  Speaker 1: we left off with a motion to strike the death
• 14:07
  Speaker 1: penalty on grounds of state speedy trial preventing effective assistance
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  Speaker 1: of counsel. The Idaho Constitution guarantees a speedy trial except
• 14:17
  Speaker 1: where there is good cause for a delay or the
• 14:19
  Speaker 1: request for postponement came from the defendant. Our states speedy
• 14:23
  Speaker 1: trial must be as they were when the Constitution was adopted.
• 14:28
  Speaker 1: Not only is it clear from Clark and other authorities
• 14:31
  Speaker 1: that courts should first look to the understanding of the
• 14:34
  Speaker 1: Framers when considering the meaning of our constitutional rights, but
• 14:38
  Speaker 1: even the Idaho Supreme Court had held that our constitutional
• 14:42
  Speaker 1: right to a speedy trial was defined by IC Section
• 14:46
  Speaker 1: nineteen thirty five oh one before the Barker test was adopted.
• 14:51
  Speaker 1: It was not until State versus Lindsay ninety six Idaho
• 14:54
  Speaker 1: for seventy four four seventy five, nineteen seventy five, that
• 14:58
  Speaker 1: our Supreme Court held that Barker was an appropriate test
• 15:02
  Speaker 1: for speedy trial under the Idaho Constitution. However, the Court
• 15:07
  Speaker 1: held that in Clark, that the good cause test of
• 15:09
  Speaker 1: IC Section nineteen thirty five oh one was not an
• 15:12
  Speaker 1: exact equivalent to the Barker test Section one thirty five
• 15:16
  Speaker 1: Idaho at two sixty. Therefore, the Court should hold that
• 15:20
  Speaker 1: the Lindsay and its progeny were wrongly decided in that
• 15:24
  Speaker 1: they did not properly consider Article one Section thirteen. By
• 15:28
  Speaker 1: starting from the understanding of our framers two, the Idaho
• 15:32
  Speaker 1: Constitution requires a fixed amount of time constitute undue delay.
• 15:36
  Speaker 1: This Court should adopt the six month line adopted by
• 15:40
  Speaker 1: our legislature. All that is left for discussion is what
• 15:44
  Speaker 1: has become of the Idaho constitutional right and the statutory
• 15:48
  Speaker 1: right pursuant to IC Section nineteen dash one oh six
• 15:53
  Speaker 1: to a speedy trial after the legislature repealed terms of
• 15:56
  Speaker 1: district courts in nineteen seventy five. See State versus Carter,
• 16:00
  Speaker 1: one oh three, Idaho, nine seventeen nine twenty, nineteen eighty one.
• 16:05
  Speaker 1: The Carter Court thought the question easily resolved by its
• 16:08
  Speaker 1: earlier ruling to rely on the Barker test. CID has
• 16:13
  Speaker 1: argued in the preceding paragraph. However, the federal right to
• 16:16
  Speaker 1: a speedy trial and the Idaho right are more equivalent.
• 16:20
  Speaker 1: Just as the Barker test does not and cannot replace
• 16:23
  Speaker 1: the test for good cause, the Barker unreasonable delay test
• 16:27
  Speaker 1: does not replace the next term of court tests. This
• 16:30
  Speaker 1: court must decide what would be equivalent to the next
• 16:32
  Speaker 1: term of court now that they are no longer in existence.
• 16:36
  Speaker 1: In State versus Benyon one twelve Idaho thirty two, nineteen
• 16:40
  Speaker 1: eighty six, the Idaho Supreme Court took up a similar
• 16:43
  Speaker 1: challenge when a defendant demanded a jury trial for an
• 16:46
  Speaker 1: infraction under Article one, section seven. As the Idaho Supreme
• 16:50
  Speaker 1: Court found, this court long and often has stated that
• 16:54
  Speaker 1: Article one and seven preserves the right to jury trial
• 16:58
  Speaker 1: as it existed at the common law law and under
• 17:01
  Speaker 1: the territorial statutes when the Idaho Constitution was adopted. This
• 17:05
  Speaker 1: standard of construction holds sway in the criminal as well
• 17:09
  Speaker 1: as the civil context. Most jurisdictions interpret their analogous constitutional
• 17:14
  Speaker 1: provisions in a specific way, the standard should not be
• 17:18
  Speaker 1: taken to extreme. The Framers did not intend to literally
• 17:22
  Speaker 1: freeze the law precisely as it existed in eighteen ninety.
• 17:26
  Speaker 1: To do so would yield the absurd result of affording
• 17:29
  Speaker 1: no right to jury trial to those accused of crimes
• 17:32
  Speaker 1: that happened not to be in statutory or in common
• 17:35
  Speaker 1: law existence at the arbitrary point in history. Benyon won twelve,
• 17:40
  Speaker 1: Idaho at thirty seven. The Court then reviewed the history
• 17:43
  Speaker 1: of the right to a jury trial in the common
• 17:45
  Speaker 1: law of England, other jurisdictions, and in Idaho at the
• 17:48
  Speaker 1: time of statehood. The Court found that the time of
• 17:51
  Speaker 1: statehood the territory of Idaho made two specific exceptions to
• 17:55
  Speaker 1: the otherwise all encompassing grant of the right to jury
• 17:58
  Speaker 1: trial in criminal acts. The Court then looked to the
• 18:02
  Speaker 1: Framers and the Constitution itself for meaning. The Court found
• 18:05
  Speaker 1: that the Framers had imprisonment and punitive measures in mind.
• 18:09
  Speaker 1: The Court determined that this history permitted summary proceedings if
• 18:13
  Speaker 1: the sanctions is decriminalized here As argued above, the history
• 18:17
  Speaker 1: of terms of court at the time of the adoption
• 18:20
  Speaker 1: of our Constitution would permit this Court to find that
• 18:23
  Speaker 1: the Framers did not wish for people to languish in
• 18:26
  Speaker 1: jail awaiting trial. The courts were not to have fewer
• 18:29
  Speaker 1: than two terms, meaning that stretching those terms to their limits,
• 18:32
  Speaker 1: a person could not have sat for more than a year. Additionally,
• 18:36
  Speaker 1: this requirement did not permit the judge to close court
• 18:39
  Speaker 1: and leave the district without having tried the defendant's case.
• 18:43
  Speaker 1: One can imagine the psychological effect that would have on
• 18:46
  Speaker 1: a defendant to wait in jail and have the only
• 18:49
  Speaker 1: person with the power to release them pack up and
• 18:52
  Speaker 1: leave the area. The framers also would have been aware
• 18:55
  Speaker 1: of the history of the right to a speedy trial.
• 18:57
  Speaker 1: As found by the United States Supreme Court, we hold
• 19:01
  Speaker 1: that the right to a speedy trial is a fundamental
• 19:04
  Speaker 1: as any right secured by the sixth Amendment. That right
• 19:08
  Speaker 1: has its roots at the very foundation of our English
• 19:11
  Speaker 1: law heritage. Its first articulation in modern jurisprudence appears to
• 19:17
  Speaker 1: have been made in the Magna Carta, wherein it was written,
• 19:21
  Speaker 1: we will sell to no man. We will not deny
• 19:24
  Speaker 1: or defer to any man, either justice or right. But
• 19:27
  Speaker 1: evidence of recognition of the right to speedy justice and
• 19:31
  Speaker 1: even earlier times, is found in the asees of Clarendon.
• 19:35
  Speaker 1: By the late thirteenth century, justices arm with commissions of
• 19:39
  Speaker 1: gold delivery and or the terminer were visiting the countryside
• 19:44
  Speaker 1: three times a year. These justices, Sir Edward Coke, wrote
• 19:48
  Speaker 1: in Part two of his institutes, have not suffered the
• 19:51
  Speaker 1: prisoner to be long detained, but at their next coming
• 19:55
  Speaker 1: have given the prisoner full and speedy justice, without detaining
• 19:59
  Speaker 1: him long in prison. To Coke, prolonged attention without trial
• 20:02
  Speaker 1: would have been contrary to the law and custom of England.
• 20:06
  Speaker 1: But he also believed that the delay and trial by
• 20:08
  Speaker 1: itself would be an improper denial of justice. In his
• 20:12
  Speaker 1: explanation of Chapter twenty nine of the Magna Carta, he
• 20:15
  Speaker 1: wrote that the words we will sell to know men,
• 20:17
  Speaker 1: we will not deny or defer to any man either
• 20:20
  Speaker 1: justice or right, had the following effect. And therefore every
• 20:24
  Speaker 1: subject of the realm for injury done to him in
• 20:27
  Speaker 1: bonateriis vel persona by any other subject, may take his
• 20:31
  Speaker 1: remedy by the course of the law, and have justice
• 20:34
  Speaker 1: and the right for injury done to him freely without sale,
• 20:37
  Speaker 1: fully without the denial, and speedily without delay. Coke's institutes
• 20:42
  Speaker 1: were read in the American colonies by virtually every student
• 20:45
  Speaker 1: of the law. Indeed, Thomas Jefferson wrote that at the
• 20:48
  Speaker 1: time he studied law seventeen sixty two to seventeen sixty seven,
• 20:53
  Speaker 1: Coke Lyttleton was the universal elementary book of law students,
• 20:57
  Speaker 1: and to John Rutledge of South Carolina, the institute seemed
• 21:01
  Speaker 1: to be almost the foundation of our law. To Coke,
• 21:04
  Speaker 1: in turn, magna carta was one of the fundamental bases
• 21:08
  Speaker 1: of English liberty. Thus, it is not surprising that when
• 21:11
  Speaker 1: George Mason drafted the first of the colonial Bills of Rights,
• 21:14
  Speaker 1: he set fourth principle of magna carta, using phraseology similar
• 21:18
  Speaker 1: to that of Cokes in all capital or criminal prosecutions.
• 21:22
  Speaker 1: The Virginia Declaration of Rights of seventeen seventy six provided
• 21:26
  Speaker 1: a man hath a right to a speedy trial. That
• 21:29
  Speaker 1: this right was considered fundamental at this early period in
• 21:33
  Speaker 1: our history is evidenced by its guarantee in the constitutions
• 21:37
  Speaker 1: of several of the states of the new nation, as
• 21:40
  Speaker 1: well as by the prominent position in the sixth Amendment. Today,
• 21:44
  Speaker 1: each of the fifty States guarantees the right to a
• 21:46
  Speaker 1: speedy trial to its citizens. The history of the right
• 21:50
  Speaker 1: to a speedy trial and its reception in this country
• 21:52
  Speaker 1: clearly established that it's one of the most basic rights
• 21:55
  Speaker 1: preserved by our Constitution. Since nineteen seventy five, no defendant
• 22:00
  Speaker 1: needs to worry that a judge will become unavailable, leaving
• 22:03
  Speaker 1: them detained essentially in communicado. All the same, the weight
• 22:07
  Speaker 1: of imprisonment and awaiting trial cannot be made much easier
• 22:10
  Speaker 1: by having a judge available who does not hear your case,
• 22:14
  Speaker 1: though you ask him or her too. To some extent,
• 22:17
  Speaker 1: the feeling of begging for one's freedom and having it
• 22:19
  Speaker 1: fall on deaf fears as time drags on might be worse.
• 22:23
  Speaker 1: In nineteen eighty, the Idaho legislature amended IC nineteen thirty
• 22:27
  Speaker 1: five oh one to not permit a trial to be
• 22:29
  Speaker 1: prolonged beyond six months. This Court may consider the opinion
• 22:34
  Speaker 1: of the legislature, which is also reflected in other states.
• 22:37
  Speaker 1: See Francis c. Ammondola State provisions regarding speedy trials generally
• 22:43
  Speaker 1: twenty three CGS Criminal Procedure and the Rights of the Accused,
• 22:47
  Speaker 1: Section eight twenty of twenty twenty. This Court should draw
• 22:50
  Speaker 1: a firm line at six months in conformity with the
• 22:53
  Speaker 1: legislature in those other states. Drawing the line at eighteen
• 22:57
  Speaker 1: years of age is subject, of course, to the objections
• 22:59
  Speaker 1: always raised against categorical rules. The qualities that distinguished juveniles
• 23:04
  Speaker 1: from adults do not disappear when an individual turns eighteen.
• 23:08
  Speaker 1: By the same token, some under eighteen have already attained
• 23:11
  Speaker 1: the level of maturity some adults will never reach. For
• 23:14
  Speaker 1: the reasons we have discussed. However, a line must be
• 23:17
  Speaker 1: drawn the plurality opinion in Thompson through the line at sixteen.
• 23:21
  Speaker 1: In the intervening years, the Thompson plurality conclusion that offenders
• 23:25
  Speaker 1: under sixteen may not be executed has not been challenged.
• 23:29
  Speaker 1: The logic of Thompson extends to those who are under eighteen.
• 23:33
  Speaker 1: The age of eighteen is the point where society draws
• 23:36
  Speaker 1: the line for many purposes between childhood and adulthood. It is,
• 23:40
  Speaker 1: we conclude, the age of which the line for death
• 23:42
  Speaker 1: eligibility ought to rest. Similarly, here where Idaho framers intended
• 23:48
  Speaker 1: a fixed line for when a defendant had waited for
• 23:51
  Speaker 1: long trial, but the foundation for that line has been erased.
• 23:54
  Speaker 1: It is for the courts to do their duty and
• 23:57
  Speaker 1: ensure that the intentions of the Constitution and its protections
• 24:00
  Speaker 1: remain b A defendant in Idaho can never request additional
• 24:05
  Speaker 1: time without losing his right to a speedy trial. As
• 24:08
  Speaker 1: noted I see Section nineteen thirty five oh one and
• 24:12
  Speaker 1: its territorial predecessor that fixed the right to a speedy
• 24:15
  Speaker 1: trial for the Idaho Constitution. RS. Eighteen eighty seven Section
• 24:20
  Speaker 1: eighty two twelve do not permit a speedy trial claim
• 24:23
  Speaker 1: when the trial was postponed upon the defendant's application. This
• 24:28
  Speaker 1: language could have been interpreted any number of ways, but
• 24:31
  Speaker 1: in State versus Kaiser one sixteen Idaho nine ninety two,
• 24:34
  Speaker 1: nine ninety nine, nineteen eighty nine, the Idaho Supreme Court,
• 24:38
  Speaker 1: with no analysis, declared that any request for delay from
• 24:41
  Speaker 1: a defendant waive the statutory right entirely. As the territorial
• 24:46
  Speaker 1: statute defining the constitutional right has the same language, this
• 24:50
  Speaker 1: court can safely presume that the Idaho Supreme Court, if
• 24:53
  Speaker 1: it ever revisits the issue of what the constitutional right
• 24:57
  Speaker 1: consists of, will hold the same as too. Thus, no
• 25:01
  Speaker 1: defendant may ever request a delay in Idaho if they
• 25:04
  Speaker 1: want to preserve their right to a speedy trial. All right,
• 25:07
  Speaker 1: we're going to wrap up right here and in the
• 25:09
  Speaker 1: next episode we're going to pick up with a capital
• 25:11
  Speaker 1: case cannot be prepared in ten months. All of the
• 25:15
  Speaker 1: information that goes with this episode can be found in
• 25:18
  Speaker 1: the description box. What's up everyone, and welcome back to
• 25:21
  Speaker 1: the program. In this episode, we're picking up where we
• 25:24
  Speaker 1: left off with the motion to strike the death penalty
• 25:27
  Speaker 1: on grounds of state speedy trial preventing effective assistance of
• 25:32
  Speaker 1: counsel two. A capital case cannot be prepared in ten months.
• 25:38
  Speaker 1: With this six months to trial as a backdrop, modern
• 25:41
  Speaker 1: death penalty work becomes impossible. Undersigned counsel is unable to
• 25:46
  Speaker 1: fulfill requirements of the ABA Guidelines for the Appointment and
• 25:51
  Speaker 1: Performance of Defense Counsel in Death Penalty Proceedings here and
• 25:55
  Speaker 1: after performance Guidelines and the Supplementary Guidelines for Mitigation function
• 26:00
  Speaker 1: of Defense Teams in death penalty cases, which have been
• 26:03
  Speaker 1: adopted by Idaho and accepted by the US Supreme Court
• 26:07
  Speaker 1: as a defining standard for effective representation in capital cases.
• 26:11
  Speaker 1: Death penalty cases must be considered differently compared to non
• 26:14
  Speaker 1: death penalty cases. They must be subjected to heighten constitutional scrutiny.
• 26:20
  Speaker 1: Put simply, so long as mister Colberger's execution is a
• 26:23
  Speaker 1: possible result in this case, the State of Idaho must
• 26:26
  Speaker 1: take basic, if not extraordinary, measures to protect his constitutional rights.
• 26:31
  Speaker 1: This is abundantly clear from the sixth and Fourteenth Amendments,
• 26:35
  Speaker 1: and is enunciated precisely in the case of eight versus Oklahoma.
• 26:41
  Speaker 1: The Court has long recognized that when the state brings
• 26:44
  Speaker 1: its judicial power to bear on an indigent defendant in
• 26:47
  Speaker 1: a criminal proceeding, it must take steps to assure the
• 26:50
  Speaker 1: defendant has a fair opportunity to present his defense. This
• 26:54
  Speaker 1: elementary principle, grounded in significant part on the Fourteenth Amendments
• 26:58
  Speaker 1: due process guarantee of fundation. Mental fairness derives from the
• 27:02
  Speaker 1: belief that justice cannot be equal where simply as a
• 27:05
  Speaker 1: result of his poverty, a defendant is denied the opportunity
• 27:09
  Speaker 1: to participate meaningfully in a judicial proceeding in which its
• 27:13
  Speaker 1: liberty is at stake. Unquestionably, the prosecution's intent to seek
• 27:18
  Speaker 1: the death penalty ratchets up the demand on defense counsel.
• 27:22
  Speaker 1: Nowhere are these demands more clearly enunciated than in the
• 27:26
  Speaker 1: ABA Guidelines for the appointment and performance of Defense counsel
• 27:30
  Speaker 1: in death penalty proceedings, defense counsel incurs the immediate obligation
• 27:35
  Speaker 1: to conduct a thorough investigation at every stage of the case,
• 27:39
  Speaker 1: and this duty is intensified, as are many duties, by
• 27:42
  Speaker 1: the unique nature of the death penalty, as has been
• 27:45
  Speaker 1: emphasized by recent statutory changes and is broadened by the
• 27:49
  Speaker 1: bifurcation of capital trials. The duty to investigate, of course,
• 27:54
  Speaker 1: includes all numerous issues related to the guilt phase of
• 27:58
  Speaker 1: homicide charges carrying the possibility of capital punishment, witness interviews,
• 28:04
  Speaker 1: forensic analysis, crime scene investigation, charging documents, police conduct, codefendants,
• 28:10
  Speaker 1: alibi etc. However, the penalty phase alone can necessitate an
• 28:15
  Speaker 1: even wider investigation, with virtually limitless avenues for mitigating evidence,
• 28:21
  Speaker 1: all of which must be pursued. The penalty phase investigation
• 28:25
  Speaker 1: requires an extensive and generally on parallel look into the
• 28:29
  Speaker 1: defendant's personal and family history, beginning with the moment of
• 28:33
  Speaker 1: conception Performance Guidelines at ten twenty two just the starting
• 28:37
  Speaker 1: point for the defense council includes one medical history including hospitalizations,
• 28:43
  Speaker 1: mental and physical illness or injury, alcohol and drug use,
• 28:47
  Speaker 1: prenatal and birth trauma, malnutrition, developmental delays, and neurological damage. Two.
• 28:54
  Speaker 1: Family and social history including physical, sexual, or emotional abuse,
• 28:58
  Speaker 1: family history of mental illnesses, cognitive impairments, substance abuse or
• 29:03
  Speaker 1: domestic violence, poverty, familial instability, neighborhood environment, and pure influence.
• 29:09
  Speaker 1: Other traumatic events such as exposure to criminal violence, the
• 29:13
  Speaker 1: loss of a loved one, or a natural disaster. Experiences
• 29:16
  Speaker 1: of racism or other social or ethnic bias, cultural or
• 29:20
  Speaker 1: religious influences. Failures of the government or social intervention e g.
• 29:25
  Speaker 1: Failure to intervene or provide necessary services. Placement in poor
• 29:30
  Speaker 1: quality foster care or juvenile detention facilities. Educational history including achievement, performance,
• 29:36
  Speaker 1: behavior and activities, special educational needs including cognitive limitations and
• 29:42
  Speaker 1: learning disabilities and opportunity or lack thereof. And activities. For
• 29:48
  Speaker 1: military service including length and type of service, conduct, special training,
• 29:52
  Speaker 1: combat exposure, health and mental health services. Five. Employment and
• 29:57
  Speaker 1: training history, including skills and p performance and barriers to employability.
• 30:02
  Speaker 1: Six Prior juvenile and adult correctional experiences, including conduct while
• 30:07
  Speaker 1: under supervision in institutions of education or training, and regarding
• 30:12
  Speaker 1: clinical services. None of this material is necessarily easy to procure.
• 30:17
  Speaker 1: His most personal experiences may be extremely difficult for the
• 30:21
  Speaker 1: client to discuss. Indeed, defense counsel must build a special
• 30:25
  Speaker 1: rapport with his client for all proceedings. He is asking
• 30:28
  Speaker 1: the client to trust counsel with his life and even
• 30:31
  Speaker 1: the information defense counsel can collect then requires the collection
• 30:36
  Speaker 1: of corroborating information from multiple sources, a time consuming task
• 30:40
  Speaker 1: to ensure the reliability and persuasiveness of the evidence. That
• 30:45
  Speaker 1: is not the type of investigation that can wait until
• 30:48
  Speaker 1: the week or even month before the trial. To the contrary,
• 30:51
  Speaker 1: the very possibility of the penalty phase proceedings weighs heavily
• 30:55
  Speaker 1: on the defense council's preparations from the moment they begin
• 30:58
  Speaker 1: to work on the case see id at ten twenty three.
• 31:02
  Speaker 1: The mitigation investigation should begin as quickly as possible because
• 31:06
  Speaker 1: it may affect the investigation of first phase defenses, decisions
• 31:10
  Speaker 1: about the need for the expert evaluations, motion practice and
• 31:14
  Speaker 1: plea negotiations. The penalty phase, in that sense, is a
• 31:19
  Speaker 1: misnomer for the defendant. The penalty phase begins as soon
• 31:23
  Speaker 1: as the possibility of a death sentence arises, whether or
• 31:26
  Speaker 1: not he has yet been found guilty. The mitigation investigation, furthermore,
• 31:31
  Speaker 1: runs in parallel with the many tasks of defense counsel
• 31:34
  Speaker 1: to prevent or prepare for trial on the original charges.
• 31:39
  Speaker 1: It is no surprise, then, that one study estimates that
• 31:42
  Speaker 1: the average capital trial consumes nearly nineteen hundred hours of
• 31:46
  Speaker 1: defense council's time, over sixteen times the average hours spent
• 31:51
  Speaker 1: on non capital homicide cases. That estimate itself is not
• 31:55
  Speaker 1: an indictment of the capital punishment system. It reflects, in part,
• 31:59
  Speaker 1: the extra ordinary measures required to ensure a fair hearing
• 32:02
  Speaker 1: for a defendant accused of a capital crime. However, the
• 32:07
  Speaker 1: demands on capital council becomes a constitutional problem when, as
• 32:11
  Speaker 1: an Idaho, the state's speedy trial requirement hamstring's defense council's
• 32:16
  Speaker 1: ability to commit the requisite time. The state, with its
• 32:19
  Speaker 1: one hand, can dramatically escalate the demands on mister Coberger
• 32:23
  Speaker 1: and defense counsel by noticing intent to seek death. Yet
• 32:27
  Speaker 1: with the other hand, it rigs the system so that
• 32:29
  Speaker 1: it can be assured that defense council cannot meet those
• 32:32
  Speaker 1: demands or must counsel a client to give up his
• 32:36
  Speaker 1: rights to a speedy trial. Part three, Idaho cannot force
• 32:40
  Speaker 1: the defendant to choose between his rights as the first
• 32:43
  Speaker 1: line of defense for individual liberties. This Court's foremost duty
• 32:47
  Speaker 1: is to safeguard the rights of Idaho's citizens and deliver
• 32:50
  Speaker 1: remedies for wrongs and justice freely and without purchase, completely
• 32:55
  Speaker 1: and without denial, promptly and without delay. Any number of
• 33:00
  Speaker 1: these remedies is available to the Court through the use
• 33:03
  Speaker 1: of its inherent powers to supervise cases. The Court also
• 33:07
  Speaker 1: has authority to state proceedings in the interests of justice.
• 33:11
  Speaker 1: There are circumstances that are likely to prejudice the accused
• 33:15
  Speaker 1: that the cost of litigating their effect in a particular
• 33:18
  Speaker 1: case is unjustified. The hallmark of such situations is that,
• 33:23
  Speaker 1: although counsel is available to assist the accused during trial,
• 33:27
  Speaker 1: the likelihood that any lawyer, even a fully competent one,
• 33:30
  Speaker 1: could provide effective assistance, is so small that a presumption
• 33:34
  Speaker 1: of prejudice is appropriate without inquiry into the actual conduct
• 33:38
  Speaker 1: of the trial. In such cases, the defendant has been
• 33:42
  Speaker 1: constructively denied the right to counsel and need not wait
• 33:46
  Speaker 1: to assert his claim in post conviction proceedings. The United
• 33:49
  Speaker 1: States Supreme Court has had few opportunities to opine on
• 33:53
  Speaker 1: the full array of circumstances that give rise to a
• 33:56
  Speaker 1: presumption of prejudice but it has applied that presumption when
• 34:00
  Speaker 1: council has a definite conflict of interest with the defendant.
• 34:04
  Speaker 1: The Holloway Court explained that a presumption is necessary in
• 34:08
  Speaker 1: such cases because the prejudice inquiry would not be susceptible
• 34:12
  Speaker 1: of intelligent, even handed application. Courts would face the intractable
• 34:16
  Speaker 1: problem of identifying after the fact what council refrained from
• 34:21
  Speaker 1: doing both before and during the trial. Because of the
• 34:25
  Speaker 1: record on appeal rarely illuminates the reasons for inaction, assessing
• 34:29
  Speaker 1: the impact of a conflict of interest on the attorney's options, tactics,
• 34:33
  Speaker 1: and decisions would be virtually impossible. State courts have applied
• 34:37
  Speaker 1: this wisdom to conflicts created by resource shortages when states
• 34:42
  Speaker 1: have failed to provide adequate funding to public defenders. Courts
• 34:45
  Speaker 1: have recognized this results in a conflict of interest is
• 34:48
  Speaker 1: inevitably created when a public defender is excessive caseload forces
• 34:53
  Speaker 1: him to choose between the rights of the various indigen criminals.
• 34:56
  Speaker 1: He represents here the choice of the prosecution to see
• 35:00
  Speaker 1: the death penalty in conjunction with the requirements for a
• 35:03
  Speaker 1: defense in a capital case as required by Idaho, essentially
• 35:07
  Speaker 1: forced mister Colberger to abandon his right to a speedy trial.
• 35:11
  Speaker 1: Courts in Idaho have long recognized that forcing citizens to
• 35:15
  Speaker 1: choose between their rights is the same as depriving them
• 35:18
  Speaker 1: of those rights. The United States Supreme Court has held
• 35:22
  Speaker 1: the same. The State of Idaho may not force this
• 35:25
  Speaker 1: Hobson's choice on mister Colberger. However, it did, and now
• 35:29
  Speaker 1: the court has a waiver of a right based upon it.
• 35:32
  Speaker 1: A waiver, however, must be voluntary, and the Court should
• 35:35
  Speaker 1: indulge every reasonable presumption against waiver. Thus, this situation has
• 35:41
  Speaker 1: created an undeniable tension within this case, without question, the
• 35:45
  Speaker 1: surest way at a safeguard mister Colberger's rights is to
• 35:48
  Speaker 1: strike the death penalty and restore his right to a
• 35:51
  Speaker 1: speedy trial. Striking the death penalty will balance mister Colberger's
• 35:56
  Speaker 1: right to effective assistance of counsel with his right to
• 35:58
  Speaker 1: a speedy trial. Furthermore, a death penalty structure that violates
• 36:02
  Speaker 1: the Constitution is by its nature unconstitutional. Idaho's system of
• 36:08
  Speaker 1: obtaining death convictions is unconstitutional at this time. This was
• 36:12
  Speaker 1: recently recognized in State versus Value. In that matter, it
• 36:16
  Speaker 1: was recognized that within the time limits required for a
• 36:19
  Speaker 1: speedy trial, neither the state nor the defense could appropriately
• 36:23
  Speaker 1: function and a just outcome be reached. See ret. Nelson
• 36:28
  Speaker 1: Judge removes death penalty, addresses evidence motions in Lorie Dabell
• 36:32
  Speaker 1: murder case. Conclusion based upon the foregoing an argument to
• 36:37
  Speaker 1: be presented at the hearing here on, This Court is
• 36:40
  Speaker 1: respectfully requested to grant this motion that a the State's
• 36:44
  Speaker 1: notice of intent to seek death penalty be struck. B
• 36:47
  Speaker 1: the Court seat a jury which is not death qualified.
• 36:50
  Speaker 1: See the Court preclude the admission of any evidence of
• 36:53
  Speaker 1: aggravating circumstances during the trial of this case. And D
• 36:58
  Speaker 1: the Court not instruct the jury on any aggravated punishment.
• 37:02
  Speaker 1: This was dated September fourth of twenty twenty four and
• 37:05
  Speaker 1: it was signed by Jay Logsden. All Right, well, obviously
• 37:09
  Speaker 1: we have a relatively busy time ahead of us, considering
• 37:14
  Speaker 1: all of the new documents that have hit the docket,
• 37:16
  Speaker 1: the new order that we have to get to, and
• 37:18
  Speaker 1: obviously the biggest gorilla in the room the actual venue
• 37:21
  Speaker 1: change itself. So we'll keep on keeping on by adding
• 37:25
  Speaker 1: some more meat to the bone. All of the information
• 37:29
  Speaker 1: that goes with this episode can be found in the
• 37:32
  Speaker 1: description box