Latest / Beyond The Horizon / Murder In Moscow: Judge Hippler's Order On Bryan Kohberger's Capital Punishment Motion (Part 7)

Transcript

Murder In Moscow: Judge Hippler's Order On Bryan Kohberger's Capital Punishment Motion (Part 7) · 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 getting right back to Judge Hippler's order
• 0:06
  Speaker 1: in regards to Brian Kolberger's motions to try and get
• 0:09
  Speaker 1: capital punishment taken off the table. To pros and cons
• 0:14
  Speaker 1: of the trifurcated approach. As in other capital schemes, the
• 0:18
  Speaker 1: bifurcated approach is the default rule in Idaho and has
• 0:21
  Speaker 1: discussed the one envisioned by statute. It necessarily results in
• 0:25
  Speaker 1: a wider spectrum of evidence subject to different evidentiary standards
• 0:30
  Speaker 1: being presented to the jury all at once, thus blurring
• 0:33
  Speaker 1: the line between the eligibility decision and the selection decision.
• 0:37
  Speaker 1: As outlined by one legal commentator analyzing the Federal Death
• 0:41
  Speaker 1: Penalty Act, the jury hears all the evidence of statutory
• 0:44
  Speaker 1: aggravating factors, non statutory aggravating factors, and mitigating factors in
• 0:49
  Speaker 1: a single proceeding before making these two determinations. Receiving all
• 0:54
  Speaker 1: of this information in a unitary proceeding creates a problem
• 0:57
  Speaker 1: because the jury's determination of what whether the defendant is
• 1:00
  Speaker 1: eligible for the death penalty may be influenced by irrelevant evidence.
• 1:05
  Speaker 1: The jury may find the defendant eligible for the death
• 1:08
  Speaker 1: penalty based on evidence that, even if established beyond a
• 1:12
  Speaker 1: reasonable doubt, fails to satisfy the statutory requirements of death eligibility.
• 1:17
  Speaker 1: Donald dem Hauser Reconciling Ring vers Arizona with current structure
• 1:22
  Speaker 1: of the Federal capital murder trial the Case for Trifurcation
• 1:26
  Speaker 1: Revised Addition two thousand and seven. This influence, noted by
• 1:30
  Speaker 1: the commentator is particularly acute with regard to victim impact evidence,
• 1:35
  Speaker 1: which may present danger of coloring the jury's determination in
• 1:38
  Speaker 1: the eligibility phase, despite the fact such evidence is not
• 1:42
  Speaker 1: relevant to any of the statutory aggravators, as noted by
• 1:46
  Speaker 1: one federal court. To pretend that such a victim impact
• 1:49
  Speaker 1: evidence is not potentially unfairly prejudicial on issues to which
• 1:54
  Speaker 1: it has little or no probative value is simply not realistic,
• 1:59
  Speaker 1: even if the core were to give a careful limiting instruction. Rather,
• 2:02
  Speaker 1: such potent emotional evidence is a quintessential example of information
• 2:07
  Speaker 1: likely to cause a jury to make a determination on
• 2:10
  Speaker 1: an unrelated issue on the improper basis of inflamed emotion
• 2:14
  Speaker 1: and bias sympathetic or antipathetic, depending on whether one is
• 2:20
  Speaker 1: considering the defendant or the victims' families United States versus Johnson,
• 2:25
  Speaker 1: three sixty two ft. Supp. Iowa, two thousand and five.
• 2:30
  Speaker 1: In addition, courts and commentators contend bifurcation can lead to
• 2:34
  Speaker 1: jerk confusion over what evidence is relevant to what decision
• 2:38
  Speaker 1: eligibility or selection, and what burden of proof applies. Margo
• 2:42
  Speaker 1: Rockland placed the death penalty on a tripod or make
• 2:45
  Speaker 1: it stand on its own two feet Rutgers fall of
• 2:49
  Speaker 1: two thousand and seven. Further courts have noted that bibrication
• 2:53
  Speaker 1: results in the presentation of lengthy, often emotionally charged, non statutory,
• 2:58
  Speaker 1: aggravating and mitigating evidence that may not be necessary should
• 3:02
  Speaker 1: this day fail to establish a statutory aggravator beyond a
• 3:06
  Speaker 1: reasonable doubt in the first place. Yet another problem cited
• 3:09
  Speaker 1: with a bifurcated system is a difficulty in applying at
• 3:12
  Speaker 1: post ring, which many state and federal courts and legal
• 3:16
  Speaker 1: commentators interpret as rendering the statutory aggravators elements of the
• 3:20
  Speaker 1: offense of capital murder as opposed to sentencing factors Rockland Supra.
• 3:26
  Speaker 1: Page seven, ninety four. As a result, it has been
• 3:29
  Speaker 1: held that the evidentiary rules and confrontation rights, which courts
• 3:33
  Speaker 1: have long held do not apply the sentencing now apply
• 3:36
  Speaker 1: to the presentation of evidence of statutory aggravators, i e.
• 3:40
  Speaker 1: The eligibility decision, but not the selection decision id At
• 3:45
  Speaker 1: eight o six and eight oh seven. It's been observed
• 3:48
  Speaker 1: that a bifurcated approach, where rules of evidence and confrontation
• 3:51
  Speaker 1: rights apply to some evidence statutory aggravating circumstances and not
• 3:56
  Speaker 1: other non statutory aggravating and mitigation circule scumstances, would lead
• 4:01
  Speaker 1: to jury confusion and not ensure the protection of defendants
• 4:05
  Speaker 1: constitutional rights idea at page eight oh seven. In light
• 4:09
  Speaker 1: of these issues, some courts have opted for trifurcation between
• 4:13
  Speaker 1: the GIL phase, the eligibility decision, and the selection decision.
• 4:17
  Speaker 1: See David McCord, Honorable Mark W. Bennett the proposed Capital
• 4:21
  Speaker 1: Penalty phase Rules of Evidence Cardozo Revised Edition, twenty fourteen,
• 4:28
  Speaker 1: citing cases United States versus Bauer Pennsylvania twenty twenty three,
• 4:32
  Speaker 1: granting motion to trifurkate based on potential prejudicial introduction of
• 4:37
  Speaker 1: extensive victim impact testimony irrelevant to an eligibility determination, and
• 4:42
  Speaker 1: summarizing federal cases granting trifurcation in fact in Bowers. The
• 4:47
  Speaker 1: Court noted, where a request for trifurcation has been made,
• 4:51
  Speaker 1: the majority of courts grants such relief. There are, however,
• 4:55
  Speaker 1: downsides to trifurcation that have been recognized by courts and commentators.
• 5:00
  Speaker 1: It could significantly prolong proceedings, result in repetition in the
• 5:04
  Speaker 1: presentation of evidence and witness testimony to the extent proof
• 5:07
  Speaker 1: of the non statutory and statutory aggravators, overlap and delay
• 5:12
  Speaker 1: relief for the victims. Bowers, twenty twenty three, at five.
• 5:16
  Speaker 1: See also United States versus Bolden, five forty five F.
• 5:21
  Speaker 1: Three D six nine six nineteen eighth Circuit two thousand
• 5:24
  Speaker 1: and eight, finding motions to trifurcate should not be routinely
• 5:28
  Speaker 1: granted because trifurcation further extends and complicates what is already
• 5:33
  Speaker 1: a long and complicated proceeding, and concerns over jury confusion
• 5:37
  Speaker 1: can be remedied by clear instructions. In addition, trifurcation creates
• 5:42
  Speaker 1: a process where the mitigating evidence is left to the
• 5:45
  Speaker 1: end after the jury is heard prolonged inculpatory evidence and
• 5:50
  Speaker 1: may have already made up its mind. In other words,
• 5:53
  Speaker 1: a jury may be no less receptive to mitigating factors
• 5:56
  Speaker 1: if left to the end. See Adam Trehan and Daniel
• 5:59
  Speaker 1: Stewart examining the utility of front loading mitigation in capital cases.
• 6:04
  Speaker 1: When faced with overwhelming evidence of guilt, three, trifurcation is
• 6:09
  Speaker 1: not warranted. The defendant's arguments in favor of trifurcation into
• 6:13
  Speaker 1: a guilt phase, eligibility phase, and selection phase largely echo
• 6:17
  Speaker 1: those noted above. The defendant contends that operating under a
• 6:21
  Speaker 1: bifurcated model in his case would cause substantial prejudice, confuse
• 6:26
  Speaker 1: the jury, and violate his constitutional rights, including the right
• 6:30
  Speaker 1: to confrontation, his right to do process, his right to
• 6:33
  Speaker 1: a fair trial, and his protection against cruel and unusual punishment.
• 6:38
  Speaker 1: He anticipates there will be substantial evidence of non statutory aggravation,
• 6:43
  Speaker 1: including emotionally charged victim impact evidence, and evidence of his
• 6:46
  Speaker 1: own past and character, none of which is relevant to
• 6:49
  Speaker 1: the four statutory aggravator is charged by the state. He
• 6:54
  Speaker 1: argues he will be unfairly prejudiced by the free for
• 6:56
  Speaker 1: all presentation of statutory and non statutory aggravating evidence at once,
• 7:02
  Speaker 1: and there is good chance the jury will be unable
• 7:04
  Speaker 1: to segregate the evidence properly. Despite careful instructions. Moreover, he
• 7:09
  Speaker 1: contends that because the eligibility decision under ring akin to
• 7:13
  Speaker 1: the guild phase, it should be subjected to the rules
• 7:16
  Speaker 1: of evidence, just like any other enhancement evidence permitted under
• 7:20
  Speaker 1: Idaho law. The Court, however, does not believe trifurcation will
• 7:24
  Speaker 1: be as beneficial as defendant hopes since it was enacted
• 7:28
  Speaker 1: I see Section nineteen twenty five point fifteen has contemplated
• 7:32
  Speaker 1: a bifurcated process in capital cases. Thus, trifurcation, even if
• 7:36
  Speaker 1: permissible under Idaho statutory law, is an exception, not the rule.
• 7:41
  Speaker 1: The Court does not find the exception is warranted here. First,
• 7:44
  Speaker 1: as Defendant acknowledges, the Idaho Supreme Court has long held
• 7:48
  Speaker 1: that the rules of evidence do not apply at capital
• 7:51
  Speaker 1: sentencing proceedings. Then Lap one fifty five Idaho at three
• 7:55
  Speaker 1: seventy five. Instead, the admission of evidence in capital sentencing
• 7:59
  Speaker 1: proceeding is governed by Idaho Code Section nineteen twenty five
• 8:03
  Speaker 1: fifteen six, which provides that the state and the defendant
• 8:07
  Speaker 1: shall be entitled to present all relevant evidence in aggravation
• 8:11
  Speaker 1: and mitigation. The Court has also long held that the
• 8:14
  Speaker 1: confrontation clause is inapplicable to such proceedings. In Sivak versus State,
• 8:19
  Speaker 1: the Court held that the United States Constitution does not
• 8:22
  Speaker 1: require that a capital defendant be afforded the opportunity to
• 8:26
  Speaker 1: confront the cross examine live witnesses in its sentencing proceedings.
• 8:31
  Speaker 1: This holding was based in part on the belief that
• 8:33
  Speaker 1: modern penealogical policies, which favor sentencing based on the maximum
• 8:38
  Speaker 1: amount of information about the defendant, would be thwarted by
• 8:41
  Speaker 1: restrictive procedural and evidentiary rules. This Court is bound by
• 8:46
  Speaker 1: these holdings. Moreover, Ring does not warrant revisiting this law
• 8:50
  Speaker 1: in this regard, As the Idaho Supreme Court observed in Abdullah,
• 8:54
  Speaker 1: Ring did not elevate statutory aggravating circumstances and elements of
• 8:58
  Speaker 1: the underlying murder. Only the legislature has the power to
• 9:02
  Speaker 1: act so. Consequently, even if this Court were to trifurcate
• 9:06
  Speaker 1: the proceedings, it could not apply the rules of evidence
• 9:09
  Speaker 1: to the eligibility phase or subject it to the confrontation clause.
• 9:13
  Speaker 1: Without these evidentiary limits, there could undoubtedly be a significant
• 9:17
  Speaker 1: amount of evidence presented in aggravation and mitigation. However, the
• 9:22
  Speaker 1: Court is not concerned over the potential for jury confusion.
• 9:26
  Speaker 1: Juries are presumed to follow their instructions, and the icjis
• 9:30
  Speaker 1: governing death penalty proceedings are clear as to how the
• 9:33
  Speaker 1: jury is to apply the evidence. Thus, the risk that
• 9:36
  Speaker 1: the jury will consider in proper evidence or apply the
• 9:39
  Speaker 1: wrong standard in determining whether a statutory aggravat or applies
• 9:44
  Speaker 1: is negligible. Moreover, any risk of jury confusion is outweighed
• 9:49
  Speaker 1: by the very real concern that the defendant will be
• 9:51
  Speaker 1: prejudiced by trifurcation because mitigating evidence will be left for
• 9:55
  Speaker 1: the final phase. Similarly, the court finds persuasive the legal
• 10:00
  Speaker 1: commentators who have advocated for more front loaded mitigating evidence
• 10:04
  Speaker 1: in capital proceedings, rather than leaving it until the end,
• 10:08
  Speaker 1: after jurors have been exposed to nothing butting culpatory evidence.
• 10:12
  Speaker 1: This could potentially dilute the impact mitigating evidence they have,
• 10:17
  Speaker 1: thus leading to a post conviction claim similar to that
• 10:19
  Speaker 1: pending in Renfro. The most compelling reason to trifurcate the
• 10:23
  Speaker 1: proceedings is to avoid the risk that the victim impact
• 10:26
  Speaker 1: evidence may color the jury's perception of the mitigating evidence.
• 10:30
  Speaker 1: There's no question that the victim impact evidence will be
• 10:33
  Speaker 1: heart wrenching and difficult to hear. However, victims have rights
• 10:36
  Speaker 1: as well, including the right to be heard at sentencing. Further,
• 10:40
  Speaker 1: there are several proceedings and precautions to guard against undue prejudice. First,
• 10:45
  Speaker 1: and homicides, only immediate family members may offer impact statements. Further,
• 10:50
  Speaker 1: the family members are statutorily limited in what they can say.
• 10:54
  Speaker 1: They're not permitted to offer characterizations or opinions about the crime,
• 10:58
  Speaker 1: about the defendant, or about the appropriate sentence. They are
• 11:02
  Speaker 1: merely permitted to present a quick glimpse of the life
• 11:05
  Speaker 1: the defendant shows to extinguish. Additionally, references to or arguments
• 11:10
  Speaker 1: using religious authority as the basis for punishment or improper
• 11:14
  Speaker 1: and have been condemned by virtually every court to consider
• 11:17
  Speaker 1: their use. The Idaho Supreme Court opined that this is
• 11:21
  Speaker 1: so because the death penalty may only be imposed when
• 11:24
  Speaker 1: the fact finder carefully focuses on the specific statutory factors,
• 11:29
  Speaker 1: and because reference to religious authority undermines the fact finder's
• 11:33
  Speaker 1: role and sense of responsibility in sentencing a defendant to death. Finally,
• 11:38
  Speaker 1: the court can further impose restrictions on victim impact evidence
• 11:42
  Speaker 1: to ensure that it's not unduly prejudicial. The court may
• 11:46
  Speaker 1: require that victim impact statements be presented in writing prior
• 11:50
  Speaker 1: to the sentencing hearing so they can be reviewed to
• 11:52
  Speaker 1: ensure that they stay within the permitted parameters. The court
• 11:57
  Speaker 1: may also instruct the victims to read from their statement
• 12:00
  Speaker 1: and avoid emotional outbursts when speaking together. These precautions will
• 12:05
  Speaker 1: help avoid a potential that victim impact evidence will tank
• 12:08
  Speaker 1: the jury's eligibility decision in a way that leads to
• 12:11
  Speaker 1: undue prejudice. Consequently, the Court does not find that trifurcation
• 12:16
  Speaker 1: is necessary to protect defendant's rights. All right, we're going
• 12:20
  Speaker 1: to wrap up right here, and in the next episode,
• 12:22
  Speaker 1: we're going to pick up with f motion to strike
• 12:24
  Speaker 1: death penalty on grounds of state speedy trial preventing effective
• 12:28
  Speaker 1: assistance of counsel. All of the information that goes with
• 12:32
  Speaker 1: this episode can be found in the description box.