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Murder In Moscow: Judge Hippler's Order On Bryan Kohberger's Capital Punishment Motion (Part 10) · 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 Hipler's order
• 0:06
  Speaker 1: denying Brian Kolberger's motions to remove the death penalty. I
• 0:11
  Speaker 1: Motion to strike State's Notice on grounds of means of execution.
• 0:16
  Speaker 1: Defendant seeks to strike the state's notice on grounds of
• 0:19
  Speaker 1: Idaho's statutory methods of execution and that they violate the
• 0:23
  Speaker 1: eighth and fourteenth Amendments of the United States Constitution and
• 0:27
  Speaker 1: its Idaho corollaries. Currently, there are two methods of execution
• 0:31
  Speaker 1: that are prescribed by Idaho statute, lethal injection and firing squad.
• 0:36
  Speaker 1: Defendant asserts that Idaho currently does not have the ability
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  Speaker 1: to kill a person by lethal injection, and the firing
• 0:42
  Speaker 1: squad is not only currently unavailable, it's cruel and unusual.
• 0:47
  Speaker 1: To this end, he provides the affidavit of Barbara Wolf
• 0:50
  Speaker 1: MD opining as to the conscious pain and suffering an
• 0:53
  Speaker 1: individual executed by firing squad will suffer. Defendant further argues
• 0:59
  Speaker 1: that this is unconstant institutional to allow him to sit
• 1:01
  Speaker 1: on death row without knowing how he will be executed.
• 1:06
  Speaker 1: The State responds that defendant's motion must be denied. As
• 1:09
  Speaker 1: it's not ripe, it is foreclosed by the United States
• 1:12
  Speaker 1: Supreme Court jurisprudence, and it is facially insufficient because he
• 1:17
  Speaker 1: fails to identify an alternative method of execution. The court
• 1:21
  Speaker 1: agrees one defendant's motion is not ripe. To be justiceable,
• 1:26
  Speaker 1: an issue must be ripe. Ripeness is a part of
• 1:29
  Speaker 1: justiceability that asked whether there is any need for court
• 1:32
  Speaker 1: action at the present time. A litigant must demonstrate that
• 1:37
  Speaker 1: an actual controversy exists and that the requested relief will
• 1:41
  Speaker 1: provide actual relief, not merely potential relief. There is no
• 1:46
  Speaker 1: heart and fast rule as to when a method of
• 1:48
  Speaker 1: execution claim becomes ripe. The Ninth Circuit holds that a
• 1:52
  Speaker 1: challenge to the method of execution becomes ripe when the
• 1:55
  Speaker 1: method is chosen Pazuto versus t Walt, nine ninety seven FT.
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  Speaker 1: Three D eight ninety three, nine oh two, Ninth Circuit,
• 2:02
  Speaker 1: twenty twenty one. Other courts have set forth other thresholds.
• 2:06
  Speaker 1: See Gallo verus State, two thirty nine, s W three
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  Speaker 1: D seven fifty seven seven eighty. Texas Criminal Appeals Court
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  Speaker 1: two thousand and seven challenged the lethal objection not ripe
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  Speaker 1: on direct appeal since there was no execution date and
• 2:21
  Speaker 1: current method of execution may not exist in the future.
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  Speaker 1: Ridgard Tink vers. State sixty six, South three d. Eight
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  Speaker 1: sixty six eight ninety seven to ninety eight, Florida, twenty eleven.
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  Speaker 1: Method of execution claim becomes right when the death warrant
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  Speaker 1: is signed. State vers. Washington p. Three point thirty five
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  Speaker 1: ninety six six sixty two, Oregon, twenty fourteen, when all
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  Speaker 1: direct and collateral review proceedings have concluded and death warren
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  Speaker 1: has issued. State vers. Johnson, two forty four Missouri, two
• 2:54
  Speaker 1: thousand and eight. Harris Johnson fifth Circuit won execution by
• 2:59
  Speaker 1: lethal injection was an event reasonably likely to occur in
• 3:02
  Speaker 1: the future. Notably, in all of these cases the defendants
• 3:06
  Speaker 1: were already on death row. Defendant has presented no case
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  Speaker 1: where a capital defendant who has not yet been found
• 3:12
  Speaker 1: guilty of murder can challenge the method of execution. Instead,
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  Speaker 1: he claims it should be decided now to avoid his
• 3:19
  Speaker 1: own fate of ever increasing fear and distress. However, this
• 3:24
  Speaker 1: runs counter to the rightness doctrine, which requires that an actual,
• 3:28
  Speaker 1: not potential controversy the method of execution, that is currently
• 3:32
  Speaker 1: statutorily authorized in Idaho, lethal injection and if unavailable, firing
• 3:37
  Speaker 1: squad may change in the future. Assuming defendant is convicted
• 3:41
  Speaker 1: and that the death penalty is imposed, it would likely
• 3:44
  Speaker 1: be at least a decade before he is executed. To
• 3:48
  Speaker 1: decide now as to the constitutionality of any given method
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  Speaker 1: would amount to an advisory opinion. Avoidance of defendant's distress
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  Speaker 1: is not a basis to contravene well settled rules of
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  Speaker 1: justice aability. Consequently, the motion fails. Lethal injection and firing
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  Speaker 1: squad have been found constitutional by the US Supreme Court.
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  Speaker 1: Even if Defendant's motion were ripe, it has been foreclosed
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  Speaker 1: by prior United States Supreme Court precedent finding both lethal
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  Speaker 1: injection and the firing squad to be constitutional methods of execution.
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  Speaker 1: In Wilkerson versus Utah, the Court upheld the firing squad,
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  Speaker 1: finding it did not contravene the Eighth Amendment. While defendant
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  Speaker 1: disputes that Wilgerson actually found death by firing squad past
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  Speaker 1: the constitutional muster, that is precisely what Wilkerson held. Cruel
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  Speaker 1: and unusual punishments are forbidden by the Constitution, but the
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  Speaker 1: punishment of shooting as a mode of executing. The death
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  Speaker 1: penalty for the crime a murder in the first degree
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  Speaker 1: is not included in that category within the meaning of
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  Speaker 1: the Eighth Amendment. Moreover, the United States Supreme Court consistently
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  Speaker 1: cites to Wilkerson as upholding a sentence of death by
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  Speaker 1: firing squad imposed by territorial court, rejecting the argument that
• 5:01
  Speaker 1: such sentence constituted cruel and unusual punishment. Additionally, in Boz,
• 5:06
  Speaker 1: the Court found that the three drug protocol states commonly
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  Speaker 1: used for lethal injection did not violate the Eighth Amendment
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  Speaker 1: five point fifty three US thirty five two oh seven. Subsequently,
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  Speaker 1: in Glossip versus Gross, the Court approved of the use
• 5:21
  Speaker 1: of mid dasolam in lethal injection executions. Incited approvingly to
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  Speaker 1: a list of courts across the country that have held
• 5:29
  Speaker 1: that the use of petrol barbital in executions does not
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  Speaker 1: violate the Eighth Amendment. Defendant has not advanced any basis
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  Speaker 1: to question these holdings. Defendant has failed to identify an
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  Speaker 1: alternative method of execution. Finally, a prerequisite to an Eighth
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  Speaker 1: Amendment challenge to a method of execution is demonstrating an
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  Speaker 1: available alternative method which defendant is not done. The Eighth
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  Speaker 1: Amendment does not guarantee a prisoner a painless death. Defendant
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  Speaker 1: provides no basis for his assertion that death by lethal
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  Speaker 1: injection is not available in Idaho. In February of twenty
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  Speaker 1: twenty four, Idaho attempted to execute Thomas Creech by lethal injection,
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  Speaker 1: yet was unable to do so due to the inability
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  Speaker 1: to establish reliable in travenous access, not because the drugs
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  Speaker 1: were unavailable. Creach Verse State, twenty twenty four w L
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  Speaker 1: four six seven eight two two eight at seven, Idaho,
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  Speaker 1: November fifth, twenty twenty four. In fact, Creach was scheduled
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  Speaker 1: for a second attempt of execution by lethal injection on
• 6:29
  Speaker 1: November thirteenth, twenty twenty four, but it was suspended due
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  Speaker 1: to a stay imposed by Idaho's Federal District Court. Therefore,
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  Speaker 1: at the current time, it appears that death by lethal
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  Speaker 1: injection is an available means of execution in Idaho. Moreover,
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  Speaker 1: even if it were not, any anxiety defendant may experience
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  Speaker 1: from not knowing how he is going to be executed
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  Speaker 1: does not implicate the Eighth Amendment. Idea at seven psychological
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  Speaker 1: strain the subsequent nightmares and trauma creach experience. Preparing for
• 6:59
  Speaker 1: the failed executcution, and an anticipation of a second execution
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  Speaker 1: attempt is not an Eighth Amendment violation. The facility for
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  Speaker 1: the firing squad has not yet been built. The state
• 7:10
  Speaker 1: objected to live testimony by doctor Wolfe on grounds that
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  Speaker 1: because the issue is not ripe, her opinions would not
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  Speaker 1: aid the trier of fact in determining a fact of
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  Speaker 1: consequence Ire seven oh two. The Court orally granted the objection,
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  Speaker 1: finding doctor Wolf's affid David to be a sufficient proffer
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  Speaker 1: for purposes of this motion. In fact, the U. S.
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  Speaker 1: Supreme Court has never invalidated a state's chosen procedure for
• 7:36
  Speaker 1: carrying out a sentence of death as the infliction of
• 7:39
  Speaker 1: cruel and unusual punishment Blase five point fifty three, US
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  Speaker 1: at forty eight. To prevail on such a claim, a
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  Speaker 1: person must show a substantial risk of serious harm, an
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  Speaker 1: objectively intolerable risk of harm that prevents prison officials from
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  Speaker 1: pleading that they were subjectively blameless for purposes of the
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  Speaker 1: Eighth Amendment ID at fifty, quoting Farmer versus Brennan, five
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  Speaker 1: eleven US eight twenty five, eight forty two, eight forty six,
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  Speaker 1: and nine. Simply because an execution method may result in pain,
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  Speaker 1: either by accident or as an inescapable consequence of death,
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  Speaker 1: does not establish the sort of objectively intolerable risk of
• 8:17
  Speaker 1: harm that qualifies as cruel and unusual Buckloo versus Prekith
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  Speaker 1: five eighty seven US one nineteen, one thirty two, and
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  Speaker 1: thirty three twenty nineteen. Rather, it forbids long disused unusual
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  Speaker 1: forms of punishment that intensified the sentence of death with
• 8:34
  Speaker 1: a cruel super edition of terra pain or disgrace, quoting
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  Speaker 1: Blase five point fifty three US at forty eight, Thomas j.
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  Speaker 1: Concurring in judgment. Moreover, a requirement of all Eighth Amendment
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  Speaker 1: method of execution claims is identifying an available alternative IDEA
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  Speaker 1: one thirty six. As the Court pointed out in Buckloo,
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  Speaker 1: distinguishing between constitutionally permissible and impervisible degrees of pain is
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  Speaker 1: a necessarily comparative exercise to decide whether the state is
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  Speaker 1: cruelly superrated pain to the punishment of death is in
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  Speaker 1: something that can be accomplished by examining the state's proposed
• 9:13
  Speaker 1: method In a vacuum, but only by comparing that method
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  Speaker 1: with viable alternatives Glossip, seven seventy six US at one
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  Speaker 1: thirty five. Defendant acknowledges he has not identified an alternative method,
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  Speaker 1: but intends his claim is distinct from the method of
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  Speaker 1: execution claims in buck Law, Blaws and Glossip. He argues
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  Speaker 1: Idaho's chosen methods are unconstitutional because they threaten Idaho citizens
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  Speaker 1: with the means of execution that cannot be carried out
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  Speaker 1: without causing undue pain. However, this is not a distinction
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  Speaker 1: that can be drawn. Undue pain is precisely the question
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  Speaker 1: that the foregoing method of execution cases addresses. To strike
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  Speaker 1: a method of execution as unduly painful under the Eighth Amendment,
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  Speaker 1: defendant must come forward with an alternative method. Has not
• 10:00
  Speaker 1: done so, thus foreclosing his claim order based on the
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  Speaker 1: foregoing analysis, defendants death penalty motions are hereby denied. This
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  Speaker 1: document was signed on November nineteenth of twenty twenty four,
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  Speaker 1: and it was signed by Judge Hipler. All of the
• 10:16
  Speaker 1: information that goes with this episode can be found in
• 10:19
  Speaker 1: the description box.