Court Filing
Electronically Filed 3/24/2025 5:56 PM Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court By: Jennifer Keyes, Deputy Clerk Anne Taylor Law, PLLC 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 Attorneys: 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, REPLY TO STATE'S RESPONSE TO V. DEFENDANT'S MOTION TO STRIKE DEATH PENALTY BRYAN C. KOHBERGER, Defendant. RE: AUTISM SPECTRUM DISORDER COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby replies to the State's Response to Defendant's Motion to Strike Death Penalty Re: Autism Spectrum Disorder, filed on March 17, 2025. Mr. Kohberger relies on his right to be free from REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTIOΝ ΤΟ STRIKE DEATH PENALTY RE: AUTISM SPECTRUM DISORDER Page 1 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 incorporates herein Defendant's Response to State's Motion in Limine Re: Neuropsychological and Psychiatric Evidence, filed March 17, 2025. That Response provides neuroimaging showing that ASD has both physical and biological factors. ARGUMENT The Atkins standard for intellectual disability is much more than low IQ. Atkins v. Virginia, 536 U.S. 304 (2002). Mr. Kohberger fits the criteria set forth in Atkins in the following ways: impairment in communication, reasoning, social skills, and understanding the reactions of others. His deficits developed at an early age and continue to the present day; ASD is not something one outgrows. Very early in his education he was treated as a child with special needs, evaluated psychologically, and provided with instructional support. He was observed as " rocking " in the classroom, inattentive, and he had poor fine motor skills. He received reading support, speech therapy, reminders to stay on tasks, more time for homework, and organizational support. He lacked social-emotional reciprocity and had few friends, he did not understand nonverbal communicative behaviors used for social interaction, and had an inability to develop, maintain, and understand relationships. The State seeks death when Mr. Kohberger is a person with an intellectual and neurodivergent physical disability. Like people with intellectual disabilities, Mr. Kohberger's adaptive functioning is impaired. He lacks the skills to function in the real world of daily living, self-care, socialization, and communication. People with an IQ above 70, can still qualify as intellectually disabled due to diminished adaptive function. Hall v. REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTIOΝ ΤΟ STRIKE DEATH PENALTY RE: AUTISM SPECTRUM DISORDER Page 2 Florida, 572 U.S. 701 (2014). The DSM clearly states that intelligence is not a hedge against severe deficits in social functioning. “ Even those with average or high intelligence have an uneven profile of abilities. The gap between intellectual and adaptive functional skills is often large. " DSM-5, p. 55. The State is misguided in its argument that Mr. Kohberger has “ the least severe form of ASD " in support of its position that his disability is not Atkins or Roper qualifying. In United States v. Huseth, 18-CR-20027, Doc. 67 (D. Kan. 2018) the court dispelled the misconception among lay people that " high functioning ” or “ mild ” autism, terms used by researchers to denote individuals with average intelligence and communication skills, does not result in severe impairments. The court specifically rejected the contention that the defendant's ASD is “ mild ” because he has a high IQ, had attended college, and could drive a car. Huseth had a Full-Scale IQ of 123, “ [b] ut despite his high IQ, " the court stated, “ Huseth is severely impaired and, in many areas, functions at the level of an 8-year-old. " The court considered evidence that demonstrated that the defendant struggled with daily living skills and socialization, despite his high intelligence. 1 " Intelligence is not a hedge against severe impairment of adaptive functional ability, ” the court stated. Another example of the inappropriate reliance of a court on the term “ mild ” is from the Fourth Circuit. In United States v. Zuk, 874 F.3d 398 (4th Cir. 2017), the trial court's sentence was overturned on appeal and remanded, largely because of Mr. Zuk's autism being described in the record as " mild autism, " and the correlative failure to do adaptive testing which would have illustrated the true degree to which Mr. Zuk was impaired in relevant ways. The State relies on cases that do not address the facts in this case. It cites, U.S. v. Roof, 10 F.4th 314, 380 (4th 2021), which does not stand for the proposition that ASD is not included as falling under Atkins. In Roof, the court focused only on 1 See also Roper v. Simmons, 543 U.S. 551 (2005) (drawing the line at age 18 is subject to objections), ASD impacts the functional age of adults who suffer from the disorder. Often times the functional age is that of a juvenile. When that is the case, the protections of Roper to be death ineligible arguably apply. REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTIOΝ ΤΟ STRIKE DEATH PENALTY RE: AUTISM SPECTRUM DISORDER Page 3 IQ as there was no full development of an intellectual disability. The State's reliance on Dunlap and Pizzuto are equally misplaced, as the issues related to mental disability were different. In Pizzuto, the court hinged its decision on a lack of data before age 18 and there was no claim of ASD. Pizzuto v. State, 146 Idaho 720,728-29 (2008). In Dunlap, the argument focused on mental illness and ASD was not a claim. State v. Dunlap, 155 Idaho 345,380 (2013). Atkins stated three reasons why, in that case, Capital Punishment was inappropriate: lesser culpability does not merit death, the death penalty does not act as a deterrent for the intellectually disabled, and impairments of the intellectually disabled can jeopardize the fairness of their proceedings. These same factors apply in Mr. Kohberger's case. Lesser culpability- Mr. Kohberger has all times asserted his innocence. Should he be convicted of this crime, his neurological, physical disorder may very well be the reason the jury misjudges him. The public sentiment of prejudice against him and pre-judgment of guilt resulted in a change of venue. Media coverage continues to be negative with an overall continued narrative claiming his guilt. The reality is that he is in fact, in a category of persons who are less culpable. It is widely recognized that autism does affect culpability, moral reasoning, and the ability to foresee consequences of social interaction and processes. People with ASD face a childhood of victimization by their typically developing peers because they are misunderstood. Inevitably, misunderstanding is going to reprise itself in the courtroom setting to the great disadvantage of the autistic accused facing typically developed jurors. In USA v. Shore, 17-cr-502, Doc. 50 (E.D. Pa. July 7, 2020) District Court Judge Timothy J. Savage stated: Autism is a (sic) neuro-developmental disability involving the brain. It is characterized by the presence of narrow, repetitive behavior and differences and difficulties in social interaction, communication, and adjusting to change. A person suffering from ASD is neurologically impaired in his ability to appreciate REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTIOΝ ΤΟ STRIKE DEATH PENALTY RE: AUTISM SPECTRUM DISORDER Page 4 the unacceptability of his conduct or to intuit why this conduct is unacceptable. Because of his difficulty observing social norms, an ASD individual may engage in socially disapproved or unacceptable behavior, with no consciousness of wrongdoing or a real sense of how his behavior is viewed by others But, the same factors bearing on the juvenile's mental development and appreciation of his wrongdoing are present in the case of a defendant with ASD.... Shore, like others with ASD, shares the same characteristics with juveniles whom the Supreme Court has found are “ constitutionally different from adults for purposes of sentencing. " Miller v. Alabama, 567 U.S. 460, 471 (2012). These include immaturity, impulsivity, and failure to appreciate the risks and consequences of their actions. The same analysis applies here. USA v. Shore, Doc. 50, Memorandum Opinion, p. 7. Death penalty as deterrent- it is well known that the death penalty is no deterrent at all. That is the reason that many states have eliminated it. It is not a deterrent for anyone.2 Moreover, the State argues that “ 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 declares that this does not apply in the case of autism. To the contrary, autism is often conceptualized as an executive functioning disorder.3 Part of executive functioning is the ability to foresee consequences and adjusting behavior to optimize one's course of action to obtain beneficial and avoid negative consequences. Mr. Kohberger suffers from executive function deficiencies such as disorganization and inability to plan ahead. Impairment of intellectually disabled: Mr. Kohberger does have a “ diminished ability to understand and process information, to learn from experience, to engage in logical reasoning or to control impulses. ” As explained in the expert reports, he has poor working memory, engages 2 See https://deathpenaltyinfo.org/research-halting-the-use-of-the-death-penalty-did-not-result-in-an-increase-inhomicide-rates (last visited March 24, 2025). 3 Volkmar, et al, An Introduction to Autism and the Autism Spectrum, Ch. 1 in: Volkmar, F.R., Loftin, R., Westphal, A., Woodbury-Smith, M. (eds) Handbook of Autism Spectrum Disorder and the Law. Springer, Cham. (2021). REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTIOΝ ΤΟ STRIKE DEATH PENALTY RE: AUTISM SPECTRUM DISORDER Page 5 in repetitive behaviors, and poor impulse control. His neurological divergence is supported in neuro imaging. Persons with ASD make poor witnesses. Research shows that if the jury is not informed of the defendant diagnosis of ASD, the impact of a negative impressions of demeanor may have a detrimental implication for defendants with ASD. Perlin & Cucolo⁴ emphasize the need for protections in these areas because the operation of autistic traits makes it much more difficult for individuals with ASD in the criminal justice system, especially when their fate is to be decided by jurors who may either have no familiarity with autism or whose " familiarity " is based on a television stereotype, and who regularly consider demeanor evidence (and their idiosyncratic perceptions of how " demeanor " can be translated into remorse, empathy, motive and more in evaluating a witness's credibility). Mr. Kohberger's ASD makes a fair and just trial a challenge. The State argues news coverage is not informative on this topic. The State benefits from the biased news media. Public sentiment is that Mr. Kohberger's physical presentation makes him look guilty, through no fault of his own. His flat affect, intense gaze, awkward body posture, holding still in the court room, inability to react and process what is happening in the court room, and inability to show emotion could cause enough juror bias to convict him. Without a doubt, his ability to testify in trial and the decision to testify will be nearly impossible for Mr. Kohberger. He has no ability to perceive what it will feel like and whether he should in fact testify. His inability to read the room, understand the threat that cross examination will present, or explain himself in socially acceptable way without prosody of speech, presents insurmountable hurdles for him. The State 4 Perlin, Michael L. and Cucolo, Heather, ' Something's Happening Here / But You Don't Know What It Is ': How Jurors (Mis) Construe Autism in the Criminal Trial Process, 82 UNIV PITTSBURGH LAW REVIEW 586 (2021), available at SSRN: https://ssrn.com/abstract=3664705 or http://dx.doi.org/10.2139/ssrn.3664705. REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTIOΝ ΤΟ STRIKE DEATH PENALTY RE: AUTISM SPECTRUM DISORDER Page 6 picked fragments of sentences in the expert reports to support its position that Mr. Kohberger does not present with ASD challenges. In doing so, the State could not be more wrong in comparing Mr. Kohberger's ability to testify in a courtroom to the average person. He suffers from multiple vulnerabilities impacting, first, deciding whether or not to testify, and then competently testifying, with no ability to eliminate the physical conditions that exist within his body due to his neurodivergence. He fits exactly the Atkins “ typical poor witness. ” The failure of the police or a court to consider the extent to which the appearance of the accused is accounted for by his autism has resulted in reversals, on pure evidentiary sufficiency grounds. See State v. Suber, 2008 WL 942622 (Minn.2008) (failure to rule out ASD as the cause of indicia of impairment in operating motor vehicle, as opposed to marijuana); United States v. Cottrell, 333 F. App'x 213 (9th Cir. 2009) (reversal for failure to consider evidence of Asperger's condition in determining the specific intent required for conviction). Finally, the State argues that Mr. Kohberger is competent and for that reason, Atkins does not apply. Competence is constantly being assessed and the reason Dr. Ryan's report refers to the issue is because his ASD impacts his ability to assist counsel and understand the proceedings he faces. He has an inability to assist with mitigation evidence and understand the magnitude of his case. By way of example, when he was arrested in his home, with a full swat team, doors broken, and parents zip tied, he made small talk with the detective in the back of the car during the ride to the police station. He asked the officer about his education and suggested that they get coffee at a later date. He did not perceive the profoundly serious nature of the moment and exhibited no perception of what was happening. While competency has not been raised in this case, at this time, Mr. Kohberger's team and assisting experts are constantly analyzing this issue. REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTIOΝ ΤΟ STRIKE DEATH PENALTY RE: AUTISM SPECTRUM DISORDER Page 7 CONCLUSION For all the reasons addressed above and in Mr. Kohberger's initial brief, the death penalty must be struck as a possible penalty in this case. The Court has notified the parties that fifteen (15) minutes will be allowed on this motion. This is a matter that requires an evidentiary hearing with expert testimony. Mr. Kohberger will continue to pursue this legal issue throughout trial if this motion is denied. Given his disability, a jury should never be allowed to consider putting him to death. DATED this 24th day of March, 2025. ELÍSA G. MASSOTH ELISA G. MASSOTH, PLLC ATTORNEY CERTIFICATE OF DELIVERY I hereby certify that a true and correct copy of the foregoing was personally served as indicated below on the 24 day of March, 2025, addressed to: Latah County Prosecuting Attorney –via Email: paservice@latahcountyid.gov Elisa Massoth – via Email: emassoth@kmrs.net Jay Logsdon – via Email: Jay.Logsdon@spd.idaho.gov Bicka Barlow, Attorney at Law – via Email: bickabarlow@sbcglobal.net Jeffery Nye, Deputy Attorney General – via Email: Jeff.nye@ag.idaho.gov Dul REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTION TO STRIKE DEATH PENALTY RE: AUTISM SPECTRUM DISORDER Page 8 Case 2: 18-cr-20027-JAR-ADM Document 73 Filed 10/22/21 Page 1 of 35 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS UNITED STATES OF AMERICA, Plaintiff, V. Case No. 18-20027-JAR ERIK M. HUSETH, Defendant. MEMORANDUM AND ORDER ON SENTENCING On August 27, 2018, Defendant Erik Huseth pled guilty to Count 3 of a three-count Information, charging him with possession of child pornography, in violation of 18 U.S.C. § 2252 (a) (4) (B). The charges stemmed from the FBI's search and seizure of Huseth's computer in 2014, which contained child pornography images and videos. This matter is now before the Court on Huseth's Sentencing Memorandum and Motion for Downward Departure or Variance (Doc. 31). Neither party objects to the Sentencing Guidelines calculations in the Presentence Investigation Report. The calculations are: a base offense level of 18, a two-level enhancement for knowingly engaging in distribution via the use of peer-to-peer software, a two-level enhancement for use of a computer, a two-level enhancement for materials involving prepubescent minors, a four-level enhancement for materials depicting the sexual exploitation of infants or toddlers, a five-level enhancement for possessing more than 600 images, and a threelevel reduction for acceptance of responsibility. The total offense level is 30, and Huseth's criminal history category is I, resulting in a correctly calculated Guidelines range of 97 to 120 months. Case 2: 18-cr-20027-JAR-ADM Document 73 Filed 10/22/21 Page 2 of 35 Huseth seeks a substantial departure downward under U.S.S.G. § 5H1.4 (Physical Condition) and a substantial variance downward on the basis of his lifelong condition of Autism Spectrum Disorder (“ ASD ”), his significant cognitive impairments, his particularized vulnerability, and his need for treatment. Huseth requests a sentence of probation, with any conditions the Court finds appropriate. The government advocates for a two-level downward variance in recognition of this Court's prior rulings that the two-level enhancement for use of a computer is no longer a distinguishing specific offense characteristic in an age when virtually all such crimes are committed through the use of a computer.¹ The government thus advocates for a sentence of 78 months, the bottom of the Guidelines range of 78 to 97 months for a total offense level of 28 and criminal history category of I. In the three years since Huseth pled guilty, the parties have engaged in extensive discovery concerning Huseth's ASD and whether he has Pedophilic Disorder. The parties have obtained evaluations, diagnoses, reports, and testimony from experts and have presented evidence at several sentencing hearings. The Court has the benefit of the opinions of five experts. Sarah Dettmer, a psychologist, has treated Huseth since 2013 for ASD. Defense expert Dr. Rachel Loftin, a psychologist who specializes in ASD, did extensive testing of Huseth and his parents and a comprehensive evaluation. Defense expert Dr. George Athey, a neuropsychologist who specializes in treatment of sex offenders, tested and evaluated Huseth and concluded that Huseth does not have Pedophilic Disorder. The government's experts, Dr. Eric Imhof and Dr. Kimberly Spence, interviewed Huseth and reviewed the reports of Dr. Loftin 1 See U.S. Sent'g Comm'n, Federal Sentencing of Child Pornography Non-Production Offenses 9 (2021). 2 Case 2: 18-cr-20027-JAR-ADM Document 73 Filed 10/22/21 Page 3 of 35 and Dr. Athey. Dr. Spence opined that