State Response to Motion to Strike Death Penalty

Electronically Filed
3/17/2025 5:45 PM

Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court
By: Jennifer Keyes, Deputy Clerk
LATAH COUNTY PROSECUTOR'S OFFICE

WILLIAM W. THOMPSON, JR., ISB No, 2613
PROSECUTING ATTORNEY

JEFF NYE, ISB 9238

SPECIAL ASSISTANT ATTORNEY GENERAL

Latah County Courthouse 522 S. Adams Street, Ste. 211 Moscow, ID 83843
Phone: (208) 883-2246 ISB No. 2613 paservice@latahcountyid.gov
IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA

STATE OF IDAHO, Case No. CR01-24-31665 Plaintiff,
STATE'S RESPONSE TO

V. DEFENDANT'S MOTION TO

STRIKE DEATH PENALTY

RE: AUTISM SPECTRUM

DISORDER

BRYAN C. KOHBERGER,

Defendant.

COMES NOW the State of Idaho, by and through the Latah County Prosecuting Attorney, and responds to Defendant's Motion to strike the death penalty on account of his alleged diagnosis of autism spectrum disorder (“ ASD ”). Defendant argues that it would violate the Eighth Amendment's prohibition on cruel and unusual punishment to impose a sentence of death because he has ASD. His argument fails for multiple independent reasons.

STATE'S RESPONSE TO DEFENDANT'S MOTION TO STRIKE DEATH PENALTY
RE: AUTISM SPECTRUM DISORDER 1

For starters, Defendant's argument contradicts both U.S. Supreme Court and Idaho Supreme Court precedent. The only mental disability that precludes imposition of the death penalty is intellectual disability as defined in Atkins v. Virginia, 536 U.S. 304 (2002) and Idaho Code § 19- 2515A. No other mental illness qualifies unless and until the U.S. Supreme Court or the Idaho Supreme Court holds differently. See State v. Dunlap, 155 Idaho 345, 380, 313 P.3d 1, 36 (2013).

Even setting that fatal flaw aside, Defendant has failed to prove the requisite national consensus to support his claim. A critical part of that consensus is the actions of state legislatures in addressing the punishment Defendant now claims is prohibited under the Eighth Amendment.

Defendant cites the actions of only two states: Ohio and Kentucky. His citations are both insufficient and inaccurate. See Atkins, 536 U.S. at 314 (observing “ two state enactments... do not provide sufficient evidence at present of a national consensus "); Ohio Rev. Code Ann.

§ 2929.025 (A) (1) (a) (prohibiting the execution of people with some mental illnesses but not including ASD); Ky. Rev. Stat. Ann. § 532.130 (3) (same).

Finally, if two reasons to deny Defendant's motion were not enough, Defendant has not shown that the rationale underpinning Atkins applies to people with ASD. All the concerns in Atkins trace back to intellectual disability, and a person with ASD does not necessarily have intellectual disabilities. Take, for example, Defendant, who was diagnosed with the least severe form of ASD " without accompanying intellectual impairment. " (Mot., Ex. 2, p.16.) This Court should deny Defendant's motion.

A. Idaho law only prohibits the death penalty for a mentally disabled person only when the elements of Idaho Code § 19-2515A are proven, and Defendant has failed to do so.

Consistent with the Eighth Amendment, Idaho law only prohibits the death penalty for a mental disability when the person qualifies as “ mentally retarded. ” I.C. § 19-2515A; see Atkins, 536 U.S. at 306-21. In Atkins, the U.S. Supreme Court put in place a constitutional prohibition on
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RE: AUTISM SPECTRUM DISORDER 2

the death penalty for “ mentally retarded offender [s]. " 536 U.S. at 321. But the Court left to the states " the task of developing appropriate ways to enforce the constitutional restriction. ” Id. at 317.

Idaho chose to enforce this constitutional restriction by enacting Idaho Code § 19-2515A, which defines “ mentally retarded ” in Idaho for purposes of the constitutional restriction on the death penalty for those with mental disabilities. The Idaho Supreme Court has read the statutory definition of “ mentally retarded ” to require proof of three elements: “ (1) an intelligence quotient (IQ) of 70 or below; (2) significant limitations in adaptive functioning in at least two of the ten areas listed; and (3) the onset of the offender's IQ of 70 or below and the onset of his or her significant limitations in adaptive functioning both must have occurred before the offender turned age eighteen. " Pizzuto v. State, 146 Idaho 720, 728-29, 202 P.3d 642, 650-51 (2008).

The Idaho Supreme Court has flatly rejected Defendant's argument. See State v. Dunlap, 155 Idaho 345, 380, 313 P.3d 1, 36 (2013). In Dunlap, the defendant argued, like Defendant here, that “ the rationale underlying Atkins... compels the same conclusion for mentally ill defendants. ” Id. The Idaho Supreme Court disagreed. See id. The court did not evaluate how those with mental illnesses compare to the intellectually disabled discussed in Atkins because it saw no need to do so. See id. The court simply noted that neither the U.S. Supreme Court nor any other court had expanded Atkins since it was decided. See id. (“ We join these courts in holding that a defendant's mental illness does not prevent imposition of a capital sentence. ”). Dunlap is fatal to Defendant's argument.

Courts in other jurisdictions have similarly rejected efforts to expand Atkins to other mental disabilities, including ASD. See, e.g., United States v. Roof, 10 F.4th 314, 380 (4th 2021). In Roof, the defendant " suffer [ed] from ' autism spectrum disorder, ' ‘ other specified schizophrenia spectrum disorder and other psychotic disorder, ' and ' other specified anxiety disorder. ” Id. at 336.

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He argued that he too should benefit from the rationale underlying Atkins, but the Fourth Circuit made short work of his argument. Id. at 380. The court found the defendant “ has no plausible argument that he is protected by Atkins ” because “ [h] e has an IQ of 125. ” Id. The court explained that Atkins, and thus the Eighth Amendment, were limited to protecting the intellectually disabled, and Atkins " specifically defined such disability as involving ' subaverage intellectual functioning. " Id. (quoting Atkins, 536 U.S. at 321). “ Although ‘ significant limitations in adaptive skills such as communication ' are part of the Atkins test, they are not sufficient by themselves to render a defendant mentally incapacitated ” for purposes of the Eighth Amendment. Id. (quoting Hall v. Florida, 572 U.S. 701, 708 (2014)); see also Petersen v. State, 326 So.3d 535, 628 (Ala.

Ct. App. 2019) (refusing to apply Atkins to defendant with “ bipolar disorder with psychotic features, autism-spectrum disorder, a personality disorder, and schizophrenia ”); State v. Johnson, 207 S.W.3d 24, 51 (Mo. 2006) (“ Both federal and state courts have refused to extend Atkins to mental illness situations. "); State v. Hancock, 840 N.E.2d 1032, 1059 (2006) (refusing to extend Atkins because “ [m] ental illnesses come in many forms; different illnesses may affect a defendant's moral responsibility or deterrability in different ways and to different degrees ").

Defendant " has no plausible argument " that the Eighth Amendment prohibits the imposition of the death penalty based on his ASD. His IQ of 119 is far above the required IQ of 70 or lower. His IQ testing prior to age 18, while lower, is still above 70 and, as admitted by his own expert, " [c] learly... an underestimate of his ability from what we now know. ” (See Ex. D13- B, p.7 & n.10.) He has failed to prove two of the required three statutory elements to enjoy the Eighth Amendment's protection against the death penalty on account of his alleged mental disability. Idaho Code § 19-2515A and the holdings in Atkins, Pizzuto, and Dunlap therefore require this Court to deny his motion.

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B. Defendant's Eighth Amendment claim fails because he cannot show evolving standards of decency prohibit the death penalty for individuals with ASD.

Even if this Court could go beyond Dunlap, the conclusion remains the same: Defendant has no plausible argument under the Eighth Amendment. Defendant cannot show that evolving standards of decency prohibit use of the death penalty as to individuals with ASD, a requirement of his Eighth Amendment Claim. As the Atkins Court explained, “ [p] roportionality review under those evolving standards should be informed by objective factors to the maximum possible extent. ” 536 U.S. at 312 (internal quotations omitted). The Court has “ pinpointed that the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures. " Id. (internal quotations omitted). It is only in “ cases involving a consensus ” of state legislatures that the Court has “ brought to bear " its own judgment on whether a penalty violates the Eighth Amendment's prohibition on cruel and unusual punishment. Id.

Atkins concluded “ a national consensus has developed against ” using the death penalty on the intellectually disabled only after finding that eighteen states had adopted legislation to that effect, the Texas legislature had unanimously passed such a bill, and similar bills had passed in at least one house in two other states. Id. at 315-16. The Court found this number of states sufficient given " the consistency of the direction of change. ” Id. at 315.

Here, Defendant cites “ [t] wo states ” to support his claim. (Mot. at 12 (citing Ohio and Kentucky).) That is two too many. Ohio's statute applies only to schizophrenia, schizoaffective disorder, bipolar disorder, and delusional disorder. See Ohio Rev. Code Ann. § 2929.025 (A) (1) (a).

Kentucky's statute is the same. See Ky. Rev. Code Ann. § 532.130 (3). All Defendant has succeeded in proving is that Ohio and Kentucky revised their death penalty prohibitions within the last five years and did not think it necessary to add ASD as a disqualifying condition. That is not the kind of “ consistency ” Defendant needs, and it is the wrong “ direction of change ” to support
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his claim. Atkins, 536 U.S. at 315.

Defendant's evolving standards argument goes downhill from there. He cites as proof that society has evolved to prohibit the use of the death penalty on individuals with ASD three appellate court decisions — two unpublished, all decided more than 15 years ago, and none involving the death penalty. (Mot. at 12-13.) Defendant also cites media reports regarding another death penalty case where the defendant has ASD. (Mot. at 13.) None of those reports, however, call for or suggest anyone else has called for a categorical prohibition on the death penalty for individuals with ASD.

Cf. Atkins, 536 U.S. at 313-14 & n.8 (noting “ public protests " over the execution of an intellectually disabled person because he was intellectually disabled and explaining the execution, at least in part, caused “ state legislatures across the country to address the issue ”). Even the defendant in that case, who is currently awaiting his execution, asserts his execution would violate the Eighth Amendment because he is innocent — not because he has ASD. See Petition¹ at 62 (arguing the defendant “ is actually innocent of the offense for which he was convicted and sentenced to death ” and “ [h] is execution would therefore be cruel and unusual and violate his due process rights under the Eighth and Fourteenth Amendments ”).

Defendant has failed entirely to demonstrate any kind of consensus to support his claim that individuals with ASD should be categorically precluded from receiving a sentence of death.

Thus, he cannot establish such a sentence violates the Eighth Amendment.

C. Autism spectrum disorder is not susceptible to Defendant's categorical approach.

This Court should reject Defendant's attempt to group together all individuals with any form of ASD for purposes of determining whether the Eighth Amendment prohibits imposition of 1 Petition for Commutation of Death Sentence to a Lesser Penalty, or, in the Alternative, a 180- day Reprieve, and Request for an Interview and Hearing on the Matter, available at https://drive.google.com/file/d/10tRZmfosl_j47r1Xn9QJuUvDeZ_LrYs/view
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the death penalty. The U.S. Supreme Court's categorical approach to the Eighth Amendment in the death penalty context has focused on groups who by-and-large share the same characteristics.

See Atkins, 536 U.S. at 306 (concluding that all intellectually disabled people “ do not act with the level of moral culpability that characterizes the most serious adult criminal conduct ” because “ of their disabilities in areas of reasoning, judgment, and control of their impulses "); Roper v.

Simmons, 543 U.S. 551, 569 (2005) (expounding on “ [t] he general differences between juveniles under 18 and adults ” and stating its “ reasoning applies to all juvenile offenders under 18 ").

Unlike the intellectually disabled and minors, everyone with autism spectrum disorder does not by-and-large share the same relevant characteristics for purposes of the Eighth Amendment.

“ The term ' spectrum ' indicates that wide range of autistic symptoms and severity. ” (Supplemental Response to Request for Discovery Regarding Expert Witnesses, Ex. D13-B, p.31., filed 1/23/25 (“ Ex. D13-B ").) Defendant “ would have met the DSM-IV criteria for Asperger's disorder. ” Id.

“ Asperger's disorder is a form of autistic spectrum disorder ” and even within that one subset of ASD “ all individuals with Asperger's are different. ” Id. One fluctuating co-occurring condition, for example, is accompanying intellectual disability. “ It used to be estimated that 70 percent of those with autistic spectrum disorder have a degree of intellectual disability, ” but “ that estimation has changed to about 50 percent. ” Id.

Even if a categorical approach to ASD were appropriate, the Eighth Amendment analysis would necessarily have to focus on those who have the least severe symptoms. This makes the specific facts of Defendant's case ideal because of his diagnosis. He was diagnosed with “ Autism Spectrum Disorder, level 1, without accompanying intellectual or language impairment. ” (Ex. 2,
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p.16.) Level 1 is the least severe of the 3 levels of ASD.2 D. Defendant's social impairment from ASD does not fall within the rationale articulated in Atkins for prohibiting the death penalty of the intellectually disabled.

Even if there were a consensus of state legislatures, Defendant has failed to show that his social impairment from ASD falls within the rationale underpinning the Court's “ independent evaluation " in Atkins. 536 U.S. at 321. The Atkins Court gave three reasons why it agreed with " the legislatures that have recently addressed the matter ”: (1) the lesser culpability of the intellectually disabled does not merit the death penalty, (2) the death penalty does not act as a deterrent for the intellectually disabled because they cannot process the possibility of execution as a penalty, and (3) the impairments of the intellectually disabled can jeopardize the fairness of their proceedings. See id. at 306-07, 317-21. None of these reasons support striking the death penalty in this case.

First, Defendant has failed to show that his ASD would in any way make him less culpable for murder. The Atkins Court found the intellectually disabled less culpable because of the " powerful evidence ” of the “ large number of States prohibiting the execution of mentally retarded persons. " 536 U.S. at 315-16. Defendant has no such evidence. See supra Part B. The evidence Defendant has offered on that front proves the opposite: Kentucky and Ohio found people with specific mental illnesses less morally culpable, but they did not include people with ASD. See Ohio Rev. Code Ann. § 2929.025 (A) (1) (a); Ky. Rev. Stat. Ann. § 532.130 (3).

Nor do the specific factors discussed in Atkins support Defendant's argument. Atkins explained the intellectually disabled were less morally culpable because of “ cognitive and behavioral impairments ” including “ the diminished ability to understand and process information, 2 See Autism Spectrum Disorder (ASD), Center for Disease Control, available at https://www.cdc.gov/autism/hcp/diagnosis/index.html.

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to learn from experience, to engage in logical reasoning, or to control impulses. " Id. at 320.

Defendant's ASD does not result in cognitive impairments. He was diagnosed with “ Autism Spectrum Disorder, level 1, without accompanying intellectual or language impairment. ” (Ex. 2, p.16.) His type of ASD is “ characterized by severe and sustained impairments in social interaction, but not by cognitive ability. ” (Ex. D13-B, p.16 n.21.) His examination revealed “ no evidence of a formal thought disorder or thought disorganization ” (Ex. D13-B, p.18), and “ no evidence of difficulty understanding " the examiner. (Ex. 2, p.9.) While Defendant's ASD may cause behavioral impairments such as “ [i] mpulsive tendencies, ” nothing in his reports suggest such impulsive tendencies manifest through physical aggression or that his lack of impulse control had any connection to the crimes with which he is charged. (Ex. 2, p.9.) Second, Defendant has failed to show that the imposition of the death penalty in his case would not act as a deterrent to similarly situated individuals with ASD. The Court expressed concern in Atkins that the intellectually disabled did not have the intellectual capacity to " process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. ” 536 U.S. at 320. Here, again, this does not apply to Defendant because his ASD diagnosis excludes any accompanying intellectual impairment. (Ex. 2, p.16.) In fact, one of Defendant's own experts found that he is “ highly intelligent and has a factual understanding of the proceedings against him ” including “ the penalty he is possibly facing. ” (Ex.

D13-B, p.33.) That is an unsurprising conclusion given that his ASD did not prevent him from graduating with “ a master's degree ” in “ Criminal Justice in January 2023 with a GPA of 4.0. ” (Ex.

D13-B, p.9.) Third, Defendant has failed to show his ASD will jeopardize the fairness of the proceedings against him. Atkins emphasized that people with intellectual disabilities are more prone to false
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confessions, are typically poor witnesses, may be less able to give meaningful assistance to their counsel, and may have demeanor that creates an unwarranted impression of lack of remorse for their crimes. See 536 U.S. at 320-21 & n.25. The Court also noted that “ mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury. ” Id. at 321.

None of the Court's concerns weigh in favor of striking the death penalty in this case.

Neither the concern about false confessions nor the concern about a lack of remorse apply in this case because Defendant has not confessed and " maintains that he is innocent of the offenses with which he is charged. ” (Ex. D13-B, p.3.) Even as a categorical matter, Defendant has provided no evidence to suggest that people with ASD are more likely to falsely confess to a crime, which sufficiently distinguishes them from the intellectually disabled people in Atkins. To the extent that