Court Filing
Electronically Filed
9/5/2024 2:48 PM
Second Judicial District, Latah County Anne Taylor Law, PLLC Julie Fry, Clerk of the Court
By: Tamzen Reeves, Deputy Clerk Anne C. Taylor, Attorney at Law
Bar Number: 5836 PO Box 2347 Coeur d'Alene, Idaho 83816
Phone: (208) 512-9611 iCourt Email: info@annetaylorlaw.com Jay W. Logsdon, Interim Public Defender Kootenai County Public Defender's Office PO Box 9000 Coeur d'Alene, Idaho 83816
Phone: (208)446-1700 Elisa G. Massoth, PLLC Attorney at Law P.O. Box 1003 Payette, Idaho 83661
Phone: (208) 642-3797; Fax: (208)642-3799 Assigned Attorney:
Anne C. Taylor, Public Defender, Bar Number: 5836 Jay W. Logsdon, Chief Deputy Public Defender, Bar Number: 8759 Elisa G. Massoth, Attorney at Law, Bar Number: 5647
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAН
STATE OF IDAHO CASE NUMBER CR29-22-2805
Plaintiff,
V. MOTION TO STRIKE NOTICE OF
INTENT TO SEEK THE DEATH
BRYAN C. KOHBERGER, PENALTY ON GROUNDS OF FAILURE
TO PRESENT AGGRAVATORS TO
Defendant. NEUTRAL FACT FINDER COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, hereby moves to strike the State's Notice Pursuant to Idaho Code § 19-4004A on the grounds that there was no check on the decision of the prosecutor to pursue the death penalty. This Motion is based on the
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Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States and Article I Sections 6 and 13 of the Idaho Constitution.
ISSUE
I. The Constitution requires a neutral fact finder to determine where the death penalty may be pursued.
The process provided to Mr. Kohberger up to this point has failed to adequately protect him from being arbitrarily selected for the death penalty in violation of the Eighth and Fourteenth Amendments in that no check was placed on the discretion of the prosecutor. The prosecutor has previously told this Court:
What the State is trying to do is to enforce the law that our Legislature has put in place that says, in cases such as this, in facts like this, a jury is in entitled to decide not only guilt but potential penalty. We are simply trying to fulfill our responsibilities under the law. To characterize it as the State is trying, is wanting, is trying to kill someone, is just simply appealing to raw emotion and it has no place in this courtroom. 1 However, as the prosecutor knows from his own experience in refusing to pursue the death penalty in State v. Lee, the decision to pursue the death penalty falls entirely and unreservedly to his own personal decision. See, Marty Trillhaase, Idaho's Death Penalty Faces its own Mortality, available at THE SPOKESMAN-REVIEW (Mar. 17, 2016) (https://www.spokesman.com/blogs/hbo/2016/mar/17/idaho-death-penalty-life-support/).
1 William Thompson, Argument, Jan. 26, 2024.
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A. Selecting Candidates for Death In Idaho, the decision to pursue the death penalty is the prosecutor's. I.C. § 18-4004 provides the penalty for first-degree murder is death or life imprisonment, but it may only be death where the prosecutor files notice of their intent to pursue death. I.C. § 18-4004A provides the prosecutor may drop their pursuit of the death penalty at any time, and if they do so death cannot be the outcome of a case.
The only limitation on the prosecutor's ability to seek the death penalty then is that it be a first degree murder case and that the prosecutor can find one circumstance of the case called an “ statutory aggravator ” listed in I.C. § 19-2515 (9). As explained in detail in Professor Cover's Narrowing Death Eligibility in Idaho: An Empirical and Constitutional Analysis, 57 IDAHO L.
REV. 559 (2022), due to the broad and vague nature of both what constitutes murder and what constitutes an aggravator, almost every murder is eligible for the death penalty at law. Professor Cover and her team analyzed first and second degree murder cases in Idaho file between June 2002 and the end of 2019. Id. at 561. They found that 86-90% of all murder convictions were factually first-degree murder cases and that 93-98% of those factually first degree murder cases were eligible for the death penalty under Idaho's scheme. Id. In fact, the scope of Idaho's death penalty is constitutionally defective in its own right, as will be argued in a separate motion.
Thus, there is no jury " entitlement ” to the death penalty. There is only the decision of the prosecutor that sets the defendant upon this path. The consequence of placing no check on the prosecutor's discretion to seek the death penalty is a system in which geography plays the largest role in determining whether the accused will possibly be executed. As Justice Breyer found:
Geography also plays an important role in determining who is sentenced to death.
See Steven F. Shatz & Terry Dalton, Challenging the Death Penalty with Statistics:
Furman, McCleskey, and a Single County Case Study, 34 CARDOZO L. REV. 1227, 1253-56 (2013). And that is not simply because some States permit the death penalty while others do not. Rather within a death penalty State, the imposition of the death penalty heavily depends on the county in which a defendant is tried.
Robert J. Smith, The Geography of the Death Penalty and its Ramifications, 92 B.
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U. L. Rev. 227, 231–232 (2012); see also JJ Donohue III, An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?, 11 J. EMPIRICAL LEGAL STUDIES 637 (2014) (" [T] he single most important influence from 1973–2007 explaining whether a death-eligible defendant [in Connecticut] would be sentenced to death was whether the crime occurred in Waterbury [County] "). Between 2004 and 2009, for example, just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide. Smith 233. And in 2012, just 59 counties (fewer than 2% of counties in the country) accounted for all death sentences imposed nationwide. Richard C. Dieter, The 2% Death Penalty:
How A Minority of Counties Produce Most Death Cases At Enormous Costs to All, DEATH PENALTY INFORMATION CENTER, 9 (Oct. 2013).
Some studies indicate that the disparity in charging reflects the decision-making authority, the legal discretion, and ultimately the power of the local prosecutor. See, e.g., Greg Goelzhauser, Prosecutorial Discretion Under Resource Constraints: Budget Allocations and Local Death– Charging Decisions, 96 JUDICATURE 161, 162–163 (2013); Katherine Barnes et al., Place Matters (Most): An Empirical Study of Prosecutorial Decision – Making in Death – Eligible Cases, 51 ARIZ.
L. REV. 305 (2009) (analyzing Missouri); Donohue, at 681 (Connecticut); Justin Marceau et al.,
Death Eligibility in Colorado: Many Are Called, Few Are Chosen, 84 U. COLO. L. REV. 1069 (2013) (Colorado); Shatz & Dalton, at 1260–1261 (Alameda County).
As will be shown, the lack of a check on this discretion violates the Constitution.
B. Grand Jury Requirement of the Fifth Amendment The Fifth Amendment requires that a grand jury pass upon any case involving the death penalty. That right, as Mr. Kohberger has argued previously, was intended as a “ shield against government run amok ”. Motion to Dismiss Indictment on Grounds of Error in Grand Jury Instructions or in the Alternative to Remand for Preliminary Hearing at p. 7 (citing Brent Tomer,
Ring Around the Grand Jury: Informing Jurors of the Capital Consequences of Aggravating Factors, 17 CAP. DEF. J. 61, 65 (2004); see also John Langbein, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL, 45 (2003)). It was so revered by the colonists that Madison enshrined it in the Fifth Amendment, even as Hamilton argued against it. Id. at 9 (citing Akhil Amar, The Bill of
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Rights as a Constitution, 100 YALE L. J. 1131, 1184-85 (1991); Tomer, 17 CAP. DEF. J. at 67; THE FEDERALIST No. 83 (Alexander Hamilton)).
Despite this, the Supreme Court in Hurtado v. California, 110 U.S. 516 (1884), determined that the amendment should not apply to the states through the Fourteenth Amendment. The Supreme Court in Hurtado held that the Grand Jury requirement was simply a choice made by the writers of the federal Constitution, and certainly not one required by Due Process, if only because the words " due process ” appear in a separate clause. Hurtado, 110 U.S. at 528-29, 534-35. The Court held that the words “ due process ” that appear in the Fifth Amendment did not enshrine a particular form of procedure and allowed for the growth of the law. Id. The Court compared due process, upon the insistence of the defendant, to the words “ law of the land ” in the Magna Carta.
See id., at 521-32. The defendant's choice was a poor one, as the Court was easily able to show the many ways in which criminal procedures in England had changed since 1215. See, id. The Court went on to hold that an adversarial preliminary hearing before a Magistrate afforded the liberties of the defendant enough protection to qualify as Due Process. Id. at 538.
Strikingly, the Court in Hurtado does not discuss the function and purpose of the Grand Jury or the circumstances behind the amendment. In a sense, Hurtado was an affirmation of the sentiment against the jury system that was common in the late 19th Century. See, Dennis Colson, Idaho's Constitution, 45-62 (Special Legis. Ed. 2003); Jeremy Bentham, 1 Rationale of Judicial Evidence 524 (1827); Jeremy Bentham, 2 The Works of Jeremy Bentham 139-40 (John Bowring ed., 1843). For example, the Court also stated in dicta that jury trials were not required in criminal cases by the Due Process clause. See id. at 121. The jury trial was already guaranteed in Article III of the Constitution and the guarantee appears again in the Sixth Amendment. As the Supreme Court would eventually hold in Duncan v. Louisiana, 391 U.S. 145 (1968), it is clear that Due Process as it was understood by those who wrote the Constitution required a jury trial in criminal cases.
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More recently, the Supreme Court has found that all elements, sentencing factors, and any other fact that a jury would need to find at trial must be found by the Grand Jury in federal cases under the Fifth Amendment. See U.S. v. Cotton, 535 U.S. 625, 627 (2002) (citing Apprendi v. New Jersey, 530 U.S. 466, 476 (2000) (quoting Jones v. U.S., 526 U.S. 227, 243 n. 6 (1999)). This holding was in view of the Court's recent jurisprudence on the importance of the jury as a fundamental right of every citizen to protect them against governmental abuses of power. See, Blakely v. Washington, 542 U.S. 296, 306 (2004); Ring v. Arizona, 536 U.S. 584, 607 (2002);
Apprendi, 530 U.S. 466 at 479-80. See also, Ramos v. Louisiana, 590 U.S. ---, 140 S.Ct. 1390 (2020) (holding unanimous jury requirement of the Sixth Amendment for serious offenses applies to the states).
In view of the renewed interest in the intention behind the jury requirements contained in the Constitution, this Court should do what the Court in Hurtado chose not to do- consider the function of the Grand jury, how it came to be specifically required in the Fifth Amendment, or whether it was considered a part of Due Process when the Fourteenth Amendment was adopted.
See, 110 U.S. at 546-47, 557-58 (HARLAN, J., dissenting) This Court will find that the Grand Jury could not have been replaced by the preliminary hearing or the probable cause findings of Magistrates because the Grand Jury's main function was not the determination of probable cause but rather its ability to exercise discretion as to which cases were worth pursuing, as outlined above.
Thus, by doing away with the Grand Jury, those states that have done so have simply left their citizens at the mercy of the government. George Edwards wrote:
There are many cases of a trifling nature which are returned by the committing magistrates and when brought before the grand jury the indictments are ignored. In counties where the volume of business is small, it would be of little consequence if the grand jury found true bills in even these cases, but in counties where the volume of business is large, and this is particularly true of the great cities which frequently are coextensive with the boundaries of the county, if then becomes of vital
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importance that there should be a tribunal to sift from the great mass of cases those which are too trifling in their nature to require further prosecution. And this is a duty which could not well devolve upon a single officer, for unless testimony was heard by him there would be no feasible way to determine which cases should be prosecuted and which should be ignored. If evidence is therefore to be heard, it is wiser that it be heard and considered by a body impartially selected from the people than by a single officer whose training would incline him to find those grounds upon which the prosecution might be sustained. [emphasis added] It is absurd to contend that in a government such as ours, composed of a system of checks and balances, a committing magistrate is an individual whose discretion does not require review. They are chosen as a rule from men who have but little knowledge of the law and whose principal qualification is the political service rendered to their party and not the personal fitness of the individual for office. In a large number of cases the warrant will be issued by a magistrate, known either to the prosecutor or his counsel, who invariably is selected because of the acquaintanceship. That a defendant who is committed or held in bail under such circumstances should be entitled to have the judgment of the magistrate reviewed by a tribunal sufficiently large and without personal interest in the case, is but a reasonable requirement. Not that the magistrate may have acted improperly or violated the terms of his oath, but that prosecutions which are or may have been begun under such conditions, shall be declared by an impartial body to be well founded in fact before a defendant shall be obliged to answer.
If it be said the cases are not analogous in that the grand jurors are laymen who review the decision of a magistrate learned in the law, it may be answered that the laymen review not the law, but the facts of the case, and as to those facts all the legal learning which the magistrate may possess will not make him a better judge of the truth of the facts for the credibility of witnesses.
Edwards, at 35-39. These truths now appear stronger than ever as the result of allowing career prosecutors to determine who shall be accused. The people and the courts grow cognizant of the fact that prosecutors with unhampered discretion tend to overcharge cases to coerce pleas, and that the concept of prosecutorial discretion has become substantially eroded by the self-selecting pool of modern prosecutors who file the most serious charge that they can in every case presented to them. See, e.g., Transcript of Oral Argument at p. 42, L. 6-25, U.S. v. Johnson, -- U.S. --, 135 S.Ct.
2551 (2015) (No. 13-7120) (Roberts, C.J. commenting on prosecutors ' use of a vague statute to coerce pleas); Transcript of Oral Argument at p. 27, L. 10-25, p. 28, L. 1-25, p. 29, L. 1-25, p. 30, L. 1-25, p. 31, L. 1-5, U.S. v. Yates, -- U.S. --, 135 S.Ct. 1074 (2015) (No. 13-7451) (Scalia, J., Ginsburg, J., and Roberts, C.J. questioning the practices of the Attorney General to charge the
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most serious charge in every case, the lack of common sense shown by the prosecutors bringing the charges, and the use of serious charges to coerce pleas).
Many of these issues are also discussed by Justice Harlan in his dissent in Hurtado. But in addition to these points, he also found that when the Fourteenth Amendment was adopted:
all the states of the Union-some in terms, all substantially-declared, in their constitution, that no person shall be deprived of life, liberty, or property otherwise than ' by the judgment of his peers or the law of the land, ' or ‘ without due process of law. When that amendment was adopted the constitution of each state, with few exceptions, contained, and still contains, a bill of rights, enumerating the rights of life, liberty, and property, which cannot be impaired or destroyed by the legislative department. In some of them, as in those of Pennsylvania, Kentucky, Ohio, Alabama, Illinois, Arkansas, Florida, Mississippi, Missouri, and North Carolina, the rights so enumerated were declared to be embraced by ‘ the general, great, and essential principles of liberty and free government; ' in others, as in those of Connecticut, in 1818, and Kansas, in 1857, to be embraced by ‘ the great and esssential principles of free government. ' Now, it is a fact of momentous interest in this discussion, that, when the fourteenth amendment was submitted and adopted, the bill of rights and the constitutions of 27 states expressly forbade criminal prosecutions, by information, for capital cases; while in the remaining 10 states such prosecutions were impliedly forbidden by a general clause declaring that no person should be deprived of life otherwise than by ‘ the judgment of his peers or the law of the land, ' or ' without due process of law. ' It may be safely affirmed that, when that amendment was adopted, a criminal prosecution, by information, for a crime involving life, was not permitted in any one of the states composing the Union.
110 U.S. at 557 (footnotes omitted).
Considering the intentions of those that wrote the Constitution and the importance they placed on the grand jury, Hurtado must be overruled, and the right to a grand jury in infamous and capital cases guaranteed by the Fifth Amendment to the United States Constitution should be applied to the states.
C. Grand Jury Requirement of the Eighth Amendment This Court is likely to note that this case did go before a grand jury, and that in State v.
Abdullah, 158 Idaho 386, 458-59 (2015), the Idaho Supreme Court held that aggravators do not have to be presented to the grand jury. The decision in Abdullah is wrong and should be overruled.
In brief, the Court in Abdullah held that aggravators are not elements and do not need to be
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presented to a grand jury. Id. That ruling only makes sense if one ignores the purpose of the grand jury as standing between citizens and their government. At the time the constitution was adopted, most felonies were death penalty cases, in which the only possible outcome was death, and a grand jury would have known it. See, Range v. Attorney General United States of America, 69 F.4th 96, 105 (3rd Cir.2023) (citations omitted). Grand jurors routinely saved defendants from death. See, Langbein, at 45 (“ For the years 1660-1800 Beattie found that the Surrey grand juries dismissed 11.5 percent of the bills of indictments for property offenses punishable by death and 17.3 percent of those brought for noncapi