Court Filing
Electronically Filed
10/9/2024 5:16 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 2613
PROSECUTING ATTORNEY
JEFF NYE, ISB 9238
SPECIAL ASSISTANT ATTORNEY GENERAL
Latah County Courthouse P.O. Box 8068 Moscow, ID 83843
Phone: (208) 883-2246 paservice@latahcountyid.gov
IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA
Case No. CR01-24-31665
STATE OF IDAHO,
Plaintiff, STATE'S OBJECTION TO DEFENDANT'S
MOTION TO STRIKE STATE'S NOTICE
V. PURSUANT TO IDAHO CODE §18-4004A ON
GROUNDS OF ARBITRARINESS
BRYAN C. KOHBERGER
Defendant.
COMES NOW the State of Idaho, by and through the Latah County Prosecuting Attorney, and hereby objects to Defendant's Motion to Strike State's Notice Pursuant to Idaho Code § 18- 4004A on Grounds of Arbitrariness (“ Motion ”). Citing a law review article, Defendant asserts two challenges to Idaho's capital sentencing statutes. First, Defendant claims Idaho's capital sentencing statutes do not sufficiently narrow the class of convicted first-degree murderers who are eligible for the death penalty. Second, Defendant argues that Idaho's capital punishment scheme is
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unconstitutional because of alleged geographic disparities. The Idaho Supreme Court has rejected both arguments. Even if there were some legal bases for Defendant's arguments, the law review article he cites does not reliably support his arguments.
A. Idaho's Capital Sentencing Statutes Narrow the Class of Persons Eligible for the Death Penalty as Required by the Eighth Amendment.
Idaho's capital sentencing scheme complies with the Eighth Amendment's narrowing requirement. Capital punishment “ may not be imposed under sentencing procedures that create a substantial risk that punishment will be inflicted in an arbitrary and capricious manner. ” Godfrey v. Georgia, 446 U.S. 420, 427 (1980). To avoid arbitrary application, a state's capital sentencing scheme “ must genuinely narrow the class of persons eligible for the death penalty. ” Arave v.
Creech, 507 U.S. 463, 474 (1993) (internal quotations omitted). Most states, including Idaho, have chosen to narrow the class of persons eligible for the death penalty by requiring the jury to find the presence of at least one aggravating circumstance before imposing the death penalty. See I.C. § 19-2515. Each aggravating circumstance “ may not apply to every defendant convicted of murder; it must apply only to a subclass of defendants convicted of murder. ” Tuilaepa v. California,
512 U.S. 967, 972 (1994).
The question of whether a state's capital sentencing scheme properly narrows the class of persons eligible for the death penalty is qualitative, not quantitative. See State v. Hall, 163 Idaho 744, 788, 419 P.3d 1042, 1086 (2018). In Hall, the defendant challenged the felony murder aggravating circumstance on the basis that it did not comply with the narrowing requirement. Id.
The aggravating circumstance applied to those murders that are committed in the perpetration of “ arson, rape, robbery, burglary, kidnapping or mayhem. ” Id. The court acknowledged that “ [t] his language may apply to many murders, ” but nevertheless found it passed the narrowing requirement
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because “ it certainly does not apply to every first-degree murder — which is all the narrowing required by Tuilaepa. ” Id. (emphasis in original).
The Idaho Supreme Court's interpretation of Tuilaepa as imposing a qualitative narrowing requirement is dispositive of Defendant's claim. Even assuming it is appropriate to aggregate the aggravating circumstances when alleging insufficient narrowing and even assuming Defendant's law review article accurately portrays the number of first-degree murders that are eligible for the death penalty in Idaho, according to Defendant's study, the combination of all the aggravating circumstances “ may apply to many murders, but it does not apply to every first-degree murder— which is all the narrowing required by Tuilaepa. ” Hall, 163 Idaho at 788, 419 P.3d at 1086; see also State v. Wood, 132 Idaho 88, 103, 967 P.2d 702, 717 (1998) (holding Idaho's statutes narrow those eligibility for the death penalty as required).
Moreover, Defendant is not the first to try and aggregate the aggravating circumstances in Idaho, and it did not end well for the first person. See State v. Hairston, 133 Idaho 496, 508, 988 P.2d 1170, 1182 (1999). The defendant in Hairston argued that the combination of all the aggravating circumstances in Idaho Code § 19-2515 “ apply equally to all first degree murder defendants " and thus fail to “ provide a meaningful way to distinguish between those who deserve capital punishment and those who do not. ” Id. The defendant urged the court to conduct a “ review of all Idaho first degree murder cases ” to analyze the aggregate effect of Idaho's aggravating circumstances. Id. But the court refused, finding “ no legal basis ” for such a review. Id. (emphasis added). Rather, the court held that aggravating circumstances are to be considered individually, not in the aggregate: “ Each aggravating circumstance must provide a principled basis for distinguishing between those who deserve the death penalty and those who do not. ” Id. Because the defendant did not “ challenge [] a particular aggravating circumstance, ” the court refused to find
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" Idaho's death penalty scheme as a whole to be arbitrary or capricious. ” Id.; see also Order on Defendant's Pretrial Motions, pp.18-20, State v. Ross, Case No. CR35-21-6092 (Oct. 10, 2023) (Monson, J.) (rejecting argument based on the law review article cited by Defendant).
The Idaho Supreme Court's decision to reject aggregating the aggravating circumstances put the court in good company. See, e.g., State v. Hidalgo, 390 P.3d 783, 789-90 (Az. 2017) (" Observing that at least one of several aggravating circumstances could apply to nearly every murder is not the same as saying that a particular aggravating circumstance is present in every murder. ") cert denied, 583 U.S. 1196 (2018); Steckel v. State, 711 A.2d 5, 12-13 (Del. 1998) (“ [W] e find the relevant inquiry to be whether ‘ the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death sentence, ' not... whether, taken in combination, Delaware's statutory aggravating circumstances apply to virtually all defendants convicted of first degree murder. ”). In fact, as far as the State can tell, every court across the country that has heard this argument has rejected it. See, e.g., Karis v. Calderon, 283 F.3d 1117, 1141 n.11 (9th Cir. 2002); United States v. Le, 327 F. Supp.2d 601, 608-09 (E.D. Va. 2004); Lawlor v. Commonwealth, 738 S.E.2d 847, 893 (Va. 2013); see also Sam Kamin & Justin Marceau, Hidalgo v. Arizona and Non-Narrowing Challenges, 51.3 Colum. Hum. Rts. Law Rev. 1101, 1109- 11 (2020) (proponents of same argument acknowledging they have a “ zero for eight record ” in Colorado trial courts).
Moreover, Defendant's myopic focus on the statutory aggravating circumstances ignores other mechanisms in Idaho's capital sentencing scheme that help perform the necessary narrowing.
After all, “ [t] he use of ‘ aggravating circumstances ' is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons, and thereby channeling the jury discretion. ”
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Lowenfield v. Phelps, 484 U.S. 231, 244-45 (1988). The Idaho legislature used more than just aggravating circumstances to narrow the class of persons eligible for the death penalty in Idaho.
Even where an aggravating circumstance can be proven beyond a reasonable doubt, the legislature excluded from death eligibility those individuals who commit murder where “ all the mitigating circumstances, when weighed against the aggravating circumstance, are sufficiently compelling that the death penalty would be unjust. " See I.C. § 19-2515 (8) (a). Clearly, that portion of the statute also has a narrowing effect on death eligibility.
Take, for example, a mentally ill individual who kills multiple people at once. Even though the State would have no problem proving the multiple murder aggravating circumstance, the perpetrator would not be eligible for the death penalty in Idaho if the mental illness were severe enough such that imposition of the death penalty would not be just. In that, and many other potential scenarios, the requirement for the jury to weigh all the mitigating circumstances narrows the class of death-eligible persons. Defendant's refusal to consider this additional narrowing aspect of Idaho's capital sentencing scheme is likewise fatal to his argument.
B. Defendant Has Failed to Show Idaho's Capital Sentencing Scheme is Unconstitutionally Arbitrary Based on Geography.
Defendant's second argument fails both legally and factually. Like his first argument, Defendant's geography-based argument has already been rejected by the Idaho Supreme Court.
See State v. Hairston, 133 Idaho 496, 517-18, 988 P.2d 1170, 1191-92 (1999). In Hairston, the defendant challenged the constitutionality of the death penalty using a study that showed, at best, " a statistical discrepancy between the imposition of the death penalty in urban versus non-urban counties. ” Id. The court held that “ such a discrepancy does not implicate any constitutional concerns " and no such study would implicate constitutional concerns until it connected to “ one or more impermissible factors. ” Id. As a legal matter, Hairston is dispositive of Defendant's claim.
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Defendant's argument fails factually too. Defendant supports his geography-based argument by relying on Professor Cover's article. But the article expressly states it does not support Defendant's conclusion: “ I cannot report findings about whether Idaho's system is ' arbitrary and capricious ' in the sense that the distribution of death sentences across the universe of deatheligible cases can be explained not by the merits of the case (i.e., the weight of the aggravating and mitigating circumstances), but rather by an arbitrary factor such as. geography. ” (Mot., Ex. A, p.539.) Defendant also fails to account for the fact that multiple death penalty notices have been filed since the article was published. See, e.g., Order on Defendant's Pretrial Motions, pp.18-20, State v. Ross, Case No. CR35-21-6092 (Oct. 10, 2023) (Monson, J.).
Finally, the State notes Defendant's geography-based argument is a thinly veiled repeat of the argument he asserts in a separate motion that Idaho's capital sentencing scheme leaves too much discretion to the county prosecuting attorneys. (Cf. Defendant's Motion to Strike Notice of Intent to Seek the Death Penalty on Grounds of Failure to Present Aggravators to a Neutral Fact Finder.) As the State explains in its response to that motion, the U.S. Supreme Court has already rejected the argument that a state violates the Eighth Amendment simply because “ the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for capital offenses. " Gregg v. Georgia, 428 U.S. 153, 199 (1976).
C. Defendant's Reliance on the Law Review Article is Misplaced.
Defendant's motion relies heavily on a law review article that summarizes information collected about various homicide cases in Idaho. The article opines that “ Idaho's capital punishment scheme fails to adequately narrow death eligibility in Idaho. ” (Mot., Ex. A, p.561.) There are at least three reasons why this Court should give the article little or no weight:
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First, this Court cannot conclude with any confidence that the author of the article reviewed the materials necessary to accurately draw the conclusions contained in the article. The author set out to decide whether individuals convicted of murder between June 2002 and 2019 were eligible for the death penalty under Idaho law. (Mot., Ex. A, p.561.) But, by the author's own admission, “ [t] here was a wide variety in the quantity and quality of available information in different cases. ” Id. at 582. The “ most useful ” information the author could find was in “ change of plea and sentencing hearing transcripts. ” Id. Yet, by their nature, neither of those hearings necessarily contain any kind of comprehensive summary of the evidence in the case.
More problematic still, “ such hearing transcripts were unavailable ” to the author “ in many cases. " Id. In how many cases? We are not told. The author merely indicates that in those “ many cases " she had to rely on documents that were even less helpful, including “ court filings such as indictments and notices of intent to seek the death penalty. ” Id. But death penalty notices would have been available in only a relative few of the cases and typically only identify the aggravating circumstances without providing any factual basis, see Hall, 163 Idaho at 789-90, 419 P.3d at 1087-88 (explaining the death penalty notice does not need to provide a factual basis), and the indictment “ must be a plain, concise and definite written statement of the essential facts constituting the offense charged, ” I.C.R. 7 (b). Surely (and rightfully) a county prosecutor who decided whether a defendant was eligible for the death penalty by reviewing the indictment and notice of death penalty drafted by his deputy would be open to criticism. In the real world, determinations of death eligibility in Idaho are made by county prosecutors and courts who undoubtedly possess and review far more information than the author had available for the article.
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Second, Defendant failed to provide this Court with sufficient information to verify the article's conclusions as to death-penalty eligibility. In fact, the article itself omits plenty of information that was readily available to the author and that would be helpful for verification. For example, the author did not include in the article (and Defendant did not provide separately) the list of the cases reviewed or the specific aggravating circumstance or circumstances that the author concluded applied to each case. Instead, the author categorized the aggravating circumstances into two groups, “ clear ” and “ fuzzy, ” and provided only statistics showing whether she believed a " clear " aggravator, “ fuzzy ” aggravator, or both applied. (Mot., Ex. A., pp.587-88.) Such high-level statistics are insufficient to raise any kind of concrete constitutional claim. See Hidalgo v. Arizona, 138 S.Ct. 1054, 1058 (2018) (Breyer, J., statement for joining denial of cert) (“ We do not have evidence, for instance, as to the nature of the 866 cases (perhaps they implicate only a small number of aggravating factors). ”). If, for example, there were a problem with Idaho's capital sentencing scheme — and there is not — the problem may be caused by just one or two aggravating circumstances. In that case, the appropriate challenge would be to those individual aggravating circumstances and, in the event a defendant proved a problem, the appropriate remedy would be to strike those individual aggravating circumstances.
Third, the author of the article did not “ catalog all possible aggravating and mitigating circumstances ” (Mot., Ex. A, p.593), which means her death-eligibility decisions failed to account for those cases where the mitigating evidence removed the perpetrator from death eligibility.
Eligibility for the death penalty in Idaho does not depend exclusively on aggravating circumstances. Rather, if an aggravating circumstance is proven beyond a reasonable doubt, the " defendant shall be sentenced to death unless mitigating circumstances which may be presented are found to be sufficiently compelling that the death penalty would be unjust. " I.C. § 19-
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2515 (3) (b) (emphasis added). Because the author of the article did not conduct an empirical review of the mitigation evidence in each case, she could not have accurately concluded whether each defendant was, in fact, eligible for the death penalty under Idaho law.
RESPECTFULLY SUBMITTED this 9th day of October 2024.
Jeff Nye Special Assistant Attorney General William W. Thompson, Jr.
Prosecuting Attorney
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CERTIFICATE OF DELIVERY
I hereby certify that true and correct copies of the STATE'S OBJECTION TO
DEFENDANT'S MOTION TO STRIKE STATE'S NOTICE PURSUANT TO IDAHO CODE
§18-4004A ON GROUNDS OF ARBITRARINESS was served on the following in the manner Anne Taylor Mailed Attorney at Law E-filed & Served / E-mailed PO Box 2347 Faxed Coeur D Alene, ID 83816-9000 Hand Delivered indicated below:
Dated this 9th day of October 2024.
Kim K Workman Kim K. Workman
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