Motion to Strike Death Penalty Re Autism Spectrum Disorder

Electronically Filed
2/24/2025 5:30 PM

Fourth Judicial District, Ada County Anne Taylor Law, PLLC Trent Tripple, Clerk of the Court
By: Jennifer Keyes, Deputy Clerk Anne C. Taylor, Attorney at Law PO Box 2347 Coeur d'Alene, Idaho 83816
Phone: (208) 512-9611 iCourt Email: info@annetaylorlaw.com Elisa G. Massoth, PLLC Attorney at Law P.O. Box 1003 Payette, Idaho 83661
Phone: (208) 642-3797; Fax: (208)642-3799 Bicka Barlow Pro Hac Vice 2358 Market Street San Francisco, CA 94114
Phone: (415) 553-4110 Assigned Attorney:
Anne C. Taylor, Attorney at Law, Bar Number: 5836 Elisa G. Massoth, Attorney at Law, Bar Number: 5647 Bicka Barlow, Attorney at Law, CA Bar Number: 178723 Jay W. Logsdon, First District Public Defender, Bar Number: 8759
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 NUMBER CR01-24-31665

Plaintiff,
V. MOTION TO STRIKE DEATH

PENALTY

BRYAN C. KOHBERGER,

RE: AUTISM SPECTRUM DISORDER

Defendant.

COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby moves this Court to strike the death penalty as a sentencing option in his case because Mr.

Kohberger's autism spectrum disorder (ASD) reduces his culpability, negates the retributive and deterrent purposes of capital punishment, and exposes him to the unacceptable risk that he will be wrongfully convicted and sentenced to death. In making this motion, Mr. Kohberger relies on his MOTION TO STRIKE DEATH PENALTY RE: AUTISM SPECTRUM DISORDER Page 1

right to be free from cruel and unusual punishment, his right to due process, his right to a fair trial, his right to counsel, his right to present a defense, his right to a reliable sentencing determination, and other rights safeguarded by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article I, Sections 1, 2, 6, 7, and 13 of the Idaho State Constitution.

Mr. Kohberger is aware of the deadline previously imposed by the court's scheduling order but has good cause for filing this motion at this time. Good cause is laid out in an Affidavit, attached but filed under seal. (See Exhibit 1, Affidavit of Dr. Cecil Reynolds – A notarized signed copy will be provided once received from Dr. Reynolds)
TABLE OF CONTENTS

INTRODUCTION.......... 3

ARGUMENT.5

I. Due to Impairments in Communication, Reasoning, Social Skills, and Impulse Control, People with ASD Are Insufficiently Culpable to Be Executed........... 5 II. The Deterrent and Retributive Aims of the Death Penalty Are Not Met by Executing People with ASD........... 9 III. As Awareness of ASD Becomes More Widespread, Evolving Standards of Decency Condemn Execution of People with ASD. 11 IV. Death Sentences for People with ASD are Inherently Unreliable Because Defendants with ASD Cannot Present Mitigation Evidence that Will Be Meaningfully Considered by the Jury. 15 a. Defendants with ASD Are Less Able to Meaningfully Assist their Counsel..... 18 b. The Demeanor of a Defendant with ASD Will Likely Create an Unwarranted Impression of Lack of Remorse for their Crimes..20 c. People with ASD Make Poor Witnesses..23 d. Evidence of a Defendant's ASD Will Likely Be Perceived by the Jury as Aggravating Instead of Mitigating........ 24 V. Even if this Court Rejects a Categorical Approach, it Should Remove the Death Penalty Because Case-Specific Factors Create an Unacceptable Risk that a Death Sentence Will Be Imposed In Spite of Factors Requiring a Lesser Sentence, Including a Pervasive MOTION TO STRIKE DEATH PENALTY RE: AUTISM SPECTRUM DISORDER Page 2

Media Narrative that Assigns Sinister Meaning to Symptoms of Mr. Kohberger's Disability......... 27
CONCLUSION.30

INTRODUCTION

The United States Supreme Court has repeatedly emphasized the exceptional and irrevocable nature of the death penalty:
Death, in its finality, differs more from life imprisonment than a 100- year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.

Woodson v. North Carolina, 428 U.S. 280, 305 (1976). This heightened standard of reliability is “ a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different. ” Ford v. Wainwright, 477 U.S. 399, 411 (1986); see also, Lockett v. Ohio, 438 U.S. 586, 605 (1978) (“ Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases ").

Because " death is different, " when the State announces its intention to seek the death penalty in a case, it imposes an extraordinary burden upon the Court, the State, and defense counsel to ensure the fairness, accuracy, and reliability of the trial and any subsequent sentencing proceeding.

When a defendant's life is at stake, a court must be “ particularly sensitive to ensure that every safeguard is observed, ” Gregg v. Georgia, 428 U.S. 153, 187 (1976), and must take “ extraordinary measures ” to guarantee that a death sentence is not “ imposed out of whim, passion, prejudice, or mistake. " Eddings v. Oklahoma, 455 U.S. 104, 118 (1982) (O'Connor, J., concurring) (emphasis added). These “ extraordinary measures " must apply at both the merits phase and the sentencing phase of a capital trial. Beck v. Alabama, 447 U.S. 625, 638 (1980); see also, MOTION TO STRIKE DEATH PENALTY RE: AUTISM SPECTRUM DISORDER Page 3

Lockett v. Ohio, 438 U.S. 586, 604 (1978); Gardner v. Florida, 430 U.S. 349, 357-58 (1977).

In addition to imposing a heightened standard of reliability in cases where the State is seeking death, the United States Supreme Court has firmly held that capital punishment is only constitutional under the Eighth Amendment if it is reserved for those few offenders deemed extraordinarily culpable, and therefore uniquely deserving of execution. Zant v. Stephens, 462 U.S.

862, 877 (1983). While every murder is appalling, only the most extreme qualify for the death penalty. See Atkins v. Virginia, 536 U.S. 304, 319 (2002) (“ [T] he average murderer " is insufficiently culpable to “ justify the most extreme sanction available to the State. "); Roper v.

Simmons, 543 U.S. 551, 568 (2005) (a case may only be appropriately capital when it falls into a very “ narrow category of the most serious crimes, ” and also involves a defendant “ whose extreme culpability makes them the most deserving of execution ”). In laymen's terms, amongst the entire class of murderers, the death penalty must be reserved for “ the worst of the worst. ” Kansas v.

Marsh, 548 U.S. 163, 206 (2006) (Souter, J., dissenting) (citing Roper, 543 U.S. at 568).

Holding true to these constitutional principles of reliability and proportionality, the Court has categorically prohibited the imposition of the death penalty where a particular characteristic of the defendant renders him less culpable, negates the retributive and deterrent aims of capital punishment, or creates a risk of an erroneous death sentence. See Atkins, 536 U.S. at 320-21 (prohibiting the execution of the intellectually disabled); Roper, 543 U.S. at 572 (prohibiting the execution of juvenile offenders). This reasoning applies with equal force to defendants who, like Mr. Kohberger, have autism spectrum disorder (“ ASD ”). ASD is “ a neurological and developmental disorder that affects how people interact with others, communicate, learn, and behave. " Nat'l Inst. Mental Health, Autism Spectrum Disorder, https://www.nimh.nih.gov/health/topics/autism-spectrum-disorders-asd (last visited Feb. 10, 2025). People with ASD, including Mr. Kohberger, exhibit deficits in nearly all the same areas cited by the Court in concluding that it is unconstitutional for people with intellectual disabilities to be sentenced to death because such sentences are not proportional and cannot be reliably MOTION TO STRIKE DEATH PENALTY RE: AUTISM SPECTRUM DISORDER Page 4

imposed. Indeed, the pervasive media coverage emphasizing symptoms of Mr. Kohberger's disability demonstrates that the very risks recognized by the Court are already being realized to his prejudice. Accordingly, this Court must strike death as a sentencing option in this case.

ARGUMENT

I. Due to Impairments in Communication, Reasoning, Social Skills, and Impulse Control, People with ASD Are Insufficiently Culpable to Be Executed.

The death penalty is only appropriately sought in a case when it falls into a very “ narrow category of the most serious crimes ” and involves a defendant “ whose extreme culpability makes them the most deserving of execution. ” Roper, 543 U.S. at 568; see also Godfrey v. Georgia, 446 U.S. 420, 433 (1980) (the Eighth Amendment limits the death penalty to those offenders with “ a consciousness materially more depraved ” than that of the typical murderer); Kennedy v. Louisiana, 554 U.S. 407, 420 (2008) (the death penalty “ must be limited to those offenders whose extreme culpability makes them the most deserving of execution ").

In prohibiting execution of people with intellectual disabilities, the U.S. Supreme Court identified several characteristics that make such defendants “ categorically less culpable than the average criminal. ” Atkins, 543 U.S. at 316.

Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.

Id. at 318 (emphasis added).

People with ASD exhibit impairments in nearly all of these areas. There are two primary diagnostic criteria for ASD. First, a person must display persistent deficits in social communication and interaction across multiple contexts, as manifested by deficits in all three of the following areas: (1) social-emotional reciprocity, (2) nonverbal communicative behaviors used for social interaction, and (3) developing, maintaining, and understanding relationships. U.S. Ctr. Disease Control & Prevention, Clinical Testing and Diagnosis for Autism Spectrum Disorder, MOTION TO STRIKE DEATH PENALTY RE: AUTISM SPECTRUM DISORDER Page 5

https://www.cdc.gov/autism/hcp/diagnosis/index.html (last visited Feb. 10, 2025) (citing Am.

Psych. Ass'n, Diagnostic and Statistical Manual (5th ed. 2013)) [hereinafter CDC]. Second, a person must display restrictive, repetitive patterns of behavior, interests, or activities, as manifested by at least two of the following: (1) stereotyped or repetitive motor movements, use of objects, or speech, (2) insistence on sameness, inflexible adherence to routines, or ritualized patterns of verbal or nonverbal behavior, (3) highly restricted, fixated interests that are abnormal in intensity or focus, and (4) hyper- or hyporeactivity to sensory input or unusual interests in sensory aspects of the environment. Id. As a result of these deficits, “ Offenders with autism spectrum disorder tend to lack theory of mind (especially empathy and the ability to see from other perspectives), the ability to appreciate the whole context, executive functioning required for planning and organization, appreciation for the consequences of one's actions, and the ability to generalize learning from one situation to another. ” Astrid Birgden, Enabling the Disabled: A Proposed Framework to Reduce Discrimination Against Forensic Disability Clients Requiring Access to Programs in Prison, 42 MITCHELL HAMLINE L. REV. 637, 655 (2016). A comprehensive neuropsychological evaluation of Mr. Kohberger conducted by Dr. Rachel Orr, PsyD, ABPP-CN, found that Mr. Kohberger “ continues to exhibit all the core diagnostic features of ASD currently, with significant impact on his daily life. ” See Exhibit 2 (Report by Dr. Orr) at 17 (emphasis added).

Social deficits (including a diminished ability “ to understand the reactions of others, ” Atkins, 543 U.S. at 318) are perhaps the most widely recognized characteristics of ASD. People with ASD often have “ difficulty identifying the emotional or mental states (e.g., fear, anxiety) of others, and how to respond appropriately [.] ” Colleen M. Berryessa, Defendants with Autism Spectrum Disorder in Criminal Court: A Judge's Toolkit, 13 DREXEL L. REV. 841, 847 (2021) [hereinafter Berryessa 2021]; see also Jerrod Brown et al., Autism Spectrum Disorder (ASD) in the Criminal Justice System in FORENSIC MENTAL HEALTH: A SOURCE GUIDE FOR PROFESSIONALS, 21, 24, 27 (Jerrod Brown & Erv Weinkauf ed., 2018). Accordingly, it is difficult for people with ASD to interpret and respond to social cues, particularly when those cues are nonverbal. Berryessa MOTION TO STRIKE DEATH PENALTY RE: AUTISM SPECTRUM DISORDER Page 6

2021, supra, at 847; Brown, supra, at 24. As it relates to this case, Dr. Orr confirmed that Mr.

Kohberger has displayed lifelong deficits in social-emotional reciprocity, including “ limited perspective-taking ” and “ limited sharing of affect / emotions of others. ” Ex. A at 16.

Along with difficulty recognizing the emotions of others, people with ASD often struggle to recognize and regulate their own emotions. This can manifest as diminished capacity “ to control impulses, " Atkins, 543 U.S. at 318. See Brown, supra, at 27. Dr. Orr observed Mr. Kohberger's impulsive tendencies throughout her evaluation, which were also reported by his family. Ex. A at 9, 13, 14, 17. Additionally, a need to engage in repetitive behaviors or interests is one of the of diagnostic domains of ASD. CDC, supra. For many people with ASD, this manifests in compulsive behavior that cannot easily be controlled by rational thinking. See Berryessa 2021, supra, at 849. Since childhood, Mr. Kohberger has exhibited compulsions around hand-washing and other cleaning behaviors. Ex. A at 18.

Diminished ability “ to communicate, ” Atkins, 543 U.S. at 318, is another a hallmark of ASD. Language deficits are common among people with ASD, ranging from complete lack of verbal language skills to difficulty recognizing and understanding abstract language, sarcasm, and irony. Brown, supra, at 24. People with ASD “ universally struggle with pragmatics, or the appropriate use of language for the situation at hand. ” Id. These language deficits can become even more pronounced in stressful and anxiety-inducing situations. Id. Although Mr. Kohberger has strong verbal abilities, he failed to recognize multiple idioms during Dr. Orr's evaluation, Ex. A at 11, and Dr. Orr noted that his language was often overinclusive, disorganized, highly repetitive, and overly formal, id. at 9.

Like people with intellectual disabilities, people with autism also have diminished capacities “ to understand and process information ” and “ to abstract from mistakes and learn from experience, ” Atkins, 543 U.S. at 318. Studies show that ASD is characterized by deficits in complex cognitive processing. Diane L. Williams et al., Associations Between Conceptual Reasoning, Problem Solving, and Adaptive Ability in High-functioning Autism, 44 J. AUTISM & MOTION TO STRIKE DEATH PENALTY RE: AUTISM SPECTRUM DISORDER Page 7

DEVELOPMENTAL DISORDERS 2908 (2014), https://pmc.ncbi.nlm.nih.gov/articles/PMC6067678/.

In particular, people with ASD are generally able to identify concepts and learn established rules, but struggle “ with concept formation or the ability to develop new concepts based upon experience. " Id. In other words, people with ASD may be able to comprehend information, but, like people with intellectual disabilities, they have difficulty extrapolating that information and applying it to a new domain. These deficits in conceptual reasoning and problem solving are apparent even among people with ASD who have average or above-average general intelligence.

Id. Indeed, despite his high baseline intelligence, Mr. Kohberger exhibits slow verbal processing and weaknesses in certain areas of executive functioning, including cognitive flexibility and organizational approach. Ex. A at 11. Dr. Orr observed that Mr. Kohberger “ tended to perceive information in a more piece-meal manner, ” id., and was highly distractable, id. at 9.

As a result of these impairments, people with ASD show diminished adaptive functioning much like people with intellectual disabilities. “ Adaptive functioning encompasses those skills essential for real-world, everyday functioning that generally fall within the broad areas of daily living skills (e.g., self-care), socialization (e.g., interpersonal skills), and communication (e.g., the ability to convey your wants and needs). ” Goldie A. McQuaid et al., The Gap between IQ and Adaptive Functioning in Autism Spectrum Disorder: Disentangling Diagnostic and Sex Differences, 25 AUTISM 1565 (2021), https://pmc.ncbi.nlm.nih.gov/articles/PMC8324508/.

Notably, people with ASD exhibit adaptive functioning that falls far below what would be expected given their cognitive ability. Id.; see also Williams et al., supra. In its post-Atkins jurisprudence, the Court has repeatedly emphasized that adaptive functioning is a key consideration in determining whether a person is intellectually disabled, and thus excluded from execution. Hall v. Florida, 572 U.S. 701, 723 (2014) (courts must permit defendants to present evidence of adaptive functioning to demonstrate intellectual disability where IQ score falls within margin of error); Moore v. Texas, 581 U.S. 1, 15-16 (2017) (same, and directing courts to focus adaptive-functioning inquiry on adaptive deficits rather than strengths). It follows that people with MOTION TO STRIKE DEATH PENALTY RE: AUTISM SPECTRUM DISORDER Page 8

ASD, who are similarly impaired in this area, should not be sentenced to death.

II. The Deterrent and Retributive Aims of the Death Penalty Are Not Met by Executing People with ASD.

In order for a death sentence to meet the Eighth Amendment's proportionality requirement, it must satisfy the two penological goals of capital punishment.

[In] Gregg v. Georgia, [this Court] identified “ retribution and deterrence of capital crimes by prospective offenders ” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a [] person “ measurably contributes to one or both of these goals, it is nothing more than the purposeless and needless imposition of pain and suffering, ' and hence an unconstitutional punishment. " Atkins, 536 U.S. at 319 (citing Gregg, 428 U.S. at 183; see also Kennedy, 554 U.S. at 441 (The death penalty " is excessive when it is grossly out of proportion to the crime or it does not fulfill the two distinct social purposes served by the death penalty: retribution and deterrence of capital crimes. "); Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality opinion) (“ A punishment might fail the test on either ground. ").

The Atkins Court concluded that neither aim was met by executing intellectually disabled defendants. Discussing retribution, the Court reasoned, If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.

Atkins, 536 U.S. at 319. As discussed in Part I, supra, the Court's conclusions regarding the diminished culpability of people with intellectual disabilities are equally applicable to people with ASD. Accordingly, if the retributive aim of the death penalty is not satisfied by executing people with intellectual disabilities, it is not met by executing people with ASD.

Turning to deter