Motion to Strike Future Dangerousness Aggravator

Electronically Filed
9/5/2024 2:48 PM

Second Judicial District, Latah County Julie Fry, Clerk of the Court
By: Tamzen Reeves, Deputy Clerk Anne Taylor Law, PLLC 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 LATAH

STATE OF IDAHO CASE NUMBER CR29-22-2805

Plaintiff,
V. MOTION TO STRIKE FUTURE

DANGEROUSNESS AGGRAVATOR

BRYAN C. KOHBERGER,

Defendant.

COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby moves to strike the future dangerousness aggravator listed in the state's Notice Pursuant to Idaho Code § 18-4004A. The State's aggravator should be struck because it fails to genuinely narrow MOTION TO STRIKE FUTURE DANGEROUSNESS AGGRAVATOR Page 1

the class of defendants eligible for death and provides no standards to the jury to avoid imposing the death penalty in an arbitrary and capricious manner.

ISSUES

I. I.C. § 19-2515 (9) (i) fails to narrow the class of death-eligible defendants.

II. I.C. § 19-2515 (9) (i) is impermissibly vague.

III. I.C. § 19-2515 (9) (i) is irrelevant to culpability and therefore cannot be an aggravator.

ARGUMENT

The United States Supreme Court has stated that the Eighth Amendment's prohibition against cruel and unusual punishment, made applicable to the states through the Fourteenth Amendment, prohibits a state from imposing the death penalty in an arbitrary and capricious manner. Instead, the sentencing body must be provided with standards which will genuinely narrow the class of crimes and the persons against whom the death penalty is imposed. Zant v.

Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742 (1983). See also Gregg v. Georgia, 428 U.S.

153, 206–07, 96 S.Ct. 2909, 2940–41, 49 L.Ed.2d 859, reh. denied 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976); Furman v. Georgia, 408 U.S. 238, 294, 92 S.Ct. 2726, 2754–55, 33 L.Ed.2d 346 (Brennan, J., concurring), reh. denied 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 164 (1972).

" To pass constitutional muster, a capital-sentencing scheme must ‘ genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. ” Lowenfield v.

Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554 (1988) citing Zant, 462 U.S. at 877, 103 S.Ct. at 2742; Gregg, 428 U.S. 153, 96 S.Ct. 2909. The Court stated: “ [T] he narrowing function required for a regime of capital punishment may be provided in either of these two ways: The legislature may itself narrow the definition of capital offenses, as Texas and Louisiana have done, so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital MOTION TO STRIKE FUTURE DANGEROUSNESS AGGRAVATOR Page 2

offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase. " Id. The clear provisions of the Idaho statute provide that the narrowing occur in the sentencing phase of the trial, particularly here, where the allegation is simply premediated murder.

See, State v. Hall, 163 Idaho 744, 788 (2018) (finding aggravating circumstances in Idaho are in both the definition of the crime and in the statutory aggravating circumstances).

That said, aggravating circumstances must meet two requirements: the circumstance may not apply to every defendant convicted of murder; it must apply only to a subclass of defendants convicted of murder (genuine narrowing), and the circumstance must not be unconstitutionally vague. Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 2635 (1994).

" Claims of vagueness directed at aggravating circumstances defined in capital punishment statutes are analyzed under the Eighth Amendment and characteristically assert that the challenged provision fails adequately to inform jurors what they must find to impose the death penalty and as a result leaves them and appellate courts with the kind of open-ended discretion held invalid in Furman v. Georgia. ” Maynard, 486 U.S. at 361–62, 108 S.Ct. at 1858. A statutory aggravating factor is unconstitutionally vague if it fails to furnish principled guidance for the choice between death and a lesser penalty. See, e.g., Maynard v. Cartwright, 486 U.S. 356, 361-364, 108 S.Ct.

1853, 1857-59, 100 L.Ed.2d 372 (1988); Godfrey v. Georgia, 446 U.S. 420, 427-433, 100 S.Ct.

1759, 1764-1767, 64 L.Ed.2d 398 (1980).

In State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), the Idaho Supreme Court upheld the propensity aggravating circumstance as being constitutional. In doing so the Court construed the word " propensity ” as follows:
We would construe “ propensity " to exclude, for example, a person who has no inclination to kill but in an episode of rage, such as during an emotional family or lover's quarrel, commits the offense of murder. We would doubt that most of those convicted of murder would again commit murder, and rather we construe the " propensity ” language to specify that person who is a willing, predisposed killer, a killer who tends toward destroying the life of another, one who kills with less than MOTION TO STRIKE FUTURE DANGEROUSNESS AGGRAVATOR Page 3

the normal amount of provocation. We would hold that propensity assumes a proclivity, a susceptibility, and even an affinity toward committing the act of murder.

Id. at 370–71, 670 P.2d at 471–72. The Court noted that:
In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Court rejected an argument that the circumstance of “ a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society " was unconstitutionally vague. There the appellant had contended that the provision required the court to predict the future. It was noted that such speculation on future behavior is made by courts countless times daily in every sentencing decision and in every determination of bail, and by parole authorities constantly in probation decisions. Jurek, supra, 428 U.S. at p. 275, 96 S.Ct. at p. 2957 (opinion of Stewart, J., joined by Powell and Stevens, JJ.). White, J., joined by Chief Justice Burger and Rehnquist, J., concurred in the holding that the statutory aggravating circumstances of the Texas statute were sufficiently narrow in definition to withstand a challenge for vagueness. Accord Proffitt v. Florida, 428 U.S. 242, 255, 96 S.Ct. 2960, 2968, 49 L.Ed.2d 913 (1976).

Id.

Both holdings are problematic within the jurisprudence outlined above. First, the Idaho Supreme Court's definition of propensity to commit murder matches and even makes use of the language from the definition of murder. Essentially, the Court excluded manslaughter. Second, the United States Supreme Court failed to recognize that the vagueness inherent in the question of whether a particular individual poses a threat to society is that the very factors that might lead one person to conclude they should die may be thought of by another as a reason for mercy. It is not clear from the decades of authorities on the subject whether the homicidally inclined are to be despised or pitied. Finally, such evidence is not relevant to determining which defendants are culpable of acts worthy of the death penalty.

I. I.C. § 19-2515 (9) (i) fails to narrow the class of death-eligible defendants.

The gloss placed on future dangerousness by the Idaho Supreme Court makes anyone who is found guilty of murder a candidate for death. This is because the Court's holding differentiates MOTION TO STRIKE FUTURE DANGEROUSNESS AGGRAVATOR Page 4

murder from manslaughter, rather than creating a subclass of murders. Murder is defined in Idaho as:
the unlawful killing of a human being including, but not limited to, a human embryo or fetus, with malice aforethought or the intentional application of torture to a human being, which results in the death of a human being. Torture is the intentional infliction of extreme and prolonged pain with the intent to cause suffering. It shall also be torture to inflict on a human being extreme and prolonged acts of brutality irrespective of proof of intent to cause suffering. The death of a human being caused by such torture is murder irrespective of proof of specific intent to kill; torture causing death shall be deemed the equivalent of intent to kill.

I.C. § 18-4001. The Supreme Court's interpretation of future dangerousness would clearly catch all torturers within its ambit, so the only question is whether those who unlawfully kill with malice aforethought are meaningfully separate out by the Court's gloss. The legislature defines malice aforethought as:
Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. [emphasis added]
I.C. § 18-4002.

This language corresponds almost exactly with that use by the Supreme Court to define those with a propensity to kill:
We would construe “ propensity ” to exclude, for example, a person who has no inclination to kill but in an episode of rage, such as during an emotional family or lover's quarrel, commits the offense of murder. We would doubt that most of those convicted of murder would again commit murder, and rather we construe the “ propensity ” language to specify that person who is a willing, predisposed killer, a killer who tends toward destroying the life of another, one who kills with less than the normal amount of provocation. We would hold that propensity assumes a proclivity, a susceptibility, and even an affinity toward committing the act of murder.- [emphasis added] Id. at 370–71, 670 P.2d at 471–72. These definitions are essentially the same:
(1) Both definitions rely on a lack of provocation.

(2) A propensity, an inclination, a willingness, an affinity, and a tendency toward murder are all synonymous within this context. Inclination / propensity as defined by the Oxford American Dictionary means:
MOTION TO STRIKE FUTURE DANGEROUSNESS AGGRAVATOR Page 5

A person's natural tendency or urge to act or feel in a particular way.

NEW OXFORD AMERICAN DICTIONARY 878 (3rd ed. 2010). Affinity means:
A spontaneous or natural liking or sympathy for someone or something.

Id. at 27. To be willing is to be " inclined to do something. ” Id. at 1978. To have a predisposition toward a thing is to have “ a liability or tendency.. to hold a particular attitude or act in a particular way. " Id. at 1376. The New Oxford American Dictionary defines susceptibility as:
The state or fact of being likely or liable to be influence or harmed by a particular thing.

Id. at 1751. It would be impossible for a person to be inclined to murder without being susceptible to the concept.

(3) To kill without inclination, propensity, or intent, but in a “ fit of rage ” is traditionally understood to be manslaughter. See State v. Norris, 2 N.C. 429, 443 (1796) (“ If two persons suddenly fall out and fight, and in the contest one kills the other, that is manslaughter: the blood is heated, the passions boil, rage dictates his conduct, and whilst the blows are passing, there is no leisure for reflection, nor time for reason to assume its empire. ” citing Keeling 56).

Indeed Idaho defines voluntary manslaughter as:
the unlawful killing of a human being including, but not limited to, a human embryo or fetus, without malice. It is of three (3) kinds:
(1) Voluntary -- upon a sudden quarrel or heat of passion.

I.C. § 18-4006.

Therefore, the Supreme Court's gloss is a list of synonyms that define anyone who would commit murder as already defined by the legislature. It does not accomplish the genuine narrowing required by the Eighth Amendment.

II. I.C. § 19-2515 (9) (i) is impermissibly vague.

The United States Supreme Court held that future dangerousness was not vague as it was something judges had to do all the time. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). While this is true, the vagueness of future dangerousness does not lie in what the MOTION TO STRIKE FUTURE DANGEROUSNESS AGGRAVATOR Page 6

concept means but what a jury is intended to do with the information. Traditionally, future dangerousness was seen as mental illness, which in turn was seen as a mitigating circumstance.

The Supreme Court has, confusingly, also held to this traditional understanding in reversing death penalty cases. Is evidence of future dangerousness both an aggravating and mitigating factor? If it is, then how can this evidence be “ adequate [] to inform jurors what they must find to impose the death penalty and as a result leaves them and appellate courts with the kind of open-ended discretion held invalid in Furman v. Georgia ”? Maynard, 486 U.S. at 361–62, 108 S.Ct. at 1858.

At the founding and throughout the 19th century, mental illness was a difficult issue for the judiciary. See, generally, Susanna L. Blumenthal, LAW AND THE MODERN MIND: CONSCIOUSNESS AND RESPONSIBILITY IN AMERICAN LEGAL CULTURE (2016). Theories about how the mind operated led many scholars to conclude that negative behaviors were symptoms of mental illness and thus removed responsibility for all evil actions. See id. at 61, 75, 84, 89, 129 (discussing “ moral insanity "). In essence, since no rational being would behave badly, all criminals were madmen.

While psychology has come a long way since the 19th century, the definition of mental disorder still contains the basic concept that a person choosing sustained negative behaviors is mentally ill. According to the DSM-V, a mental disorder is:
A mental disorder is a syndrome characterized by clinically significant disturbance in an individual's cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational, or other important activities. An expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder. Socially deviant behavior (e.g., political, religious, or sexual) and conflicts that are primarily between the individual and society are not mental disorders unless the deviance or conflict results from a dysfunction in the individual, as described above.

DSM-V at 20. Practically speaking, every case where a jury is asked to find a person is likely to pose a threat of future dangerousness will involve underlying significant disturbances in that person's mental functioning.

MOTION TO STRIKE FUTURE DANGEROUSNESS AGGRAVATOR Page 7

From the Supreme Court's view, a mental illness of a type that renders a person unable to understand the meaning of or reason for it bars the application of the death penalty. See, Ford v.

Wainwright, 477 U.S. 399, 417, 106 S.Ct. 2595, 2606 (1986). All other forms of mental illness are mitigating and only an ineffective attorney would not fully investigate and consider presenting such evidence to a jury. See Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527 (2003).

In turn, legislatures have labeled this same evidence as aggravating by pointing out that the factors that reduce culpability are increasing the threat the defendant in question poses to society.

There is nothing new about making this observation, but by placing the legislative weight on the aggravation side of the scale the evidence considered constitutionally mitigating is rendered a danger to the capital defendant. See, Penry v. Lynaugh, 492 U.S. 302, 324, 109 S.Ct. 2934, 2949 (1989) abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002);
see also Royal v. Taylor 188 F.3d 239 (4th Cir. 1999) (noting that evidence of psychological impairments as a mitigating factor in sentencing can be a “ double-edged sword ").) The best response to this decision the Supreme Court has made is that though the legislature renders the evidence aggravating at the base of a death qualifying “ pyramid ” the jury can still treat it as mitigating at the “ apex. ” See, Walton v. Arizona, 497 U.S. 639, 716, 110 S.Ct. 3047, 3090 (1990) (Stevens, J. dissenting); Zant v. Stephens, 462 U.S. 862, 870-872, 103 S.Ct. 2733, 2739- 2740 (1983). That explanation of how the system is to work is made all the more Kafkaesque by states like Idaho that require defendants to give up rights and privileges in order to introduce evidence of a mental disorder. I.C. § 18-207. The system is not well-served by permitting the legislature to make the purpose of psychological evidence unclear for juries. Studies have shown that juries are confused by the double intentions behind such evidence and typically find it aggravating. See, Ronald J. Tabak, Overview of the Task Force Proposal on Mental Disability and MOTION TO STRIKE FUTURE DANGEROUSNESS AGGRAVATOR Page 8

the Death Penalty, 54 CATH. U. L. REV. 1123, 1123-31 (2005) (Exhibit A). Therefore, for the clarity of the jury, the future dangerousness aggravator should be struck in this matter.

III. I.C. § 19-2515 (9) (i) is irrelevant to culpability and thus cannot be an aggravator.

More concerning from a constitutional standpoint is that the United States Supreme Court has never actually held that evidence of future dangerousness is relevant to whether someone should die. The Eighth Amendment requires that defendants only be condemned to death if they are deserving of the ultimate punishment based on their culpability, not their dangerousness. See, e.g., Atkins, 536 U.S. at 319, 122 S.Ct. at 2251. In California v. Ramos, 463 U.S. 992, 1005-08, 103 S.Ct. 3446, 3455-56 (1983), the United States Supreme Court held:
Closely related to, yet distinct from respondent's speculativeness argument is the contention that the Briggs Instruction is constitutionally infirm because it deflects the jury's focus from its central task. Respondent argues that the commutation instruction diverts the jury from undertaking the kind of individualized sentencing determination that, under Woodson v. North Carolina, 428 U.S., at 304, 96 S.Ct., at 2991, is “ a constitutionally indispensable part of the process of inflicting the penalty of death. ” As we have already noted, supra, at 3454, as a functional matter the Briggs Instruction focuses the jury's attention on whether this particular defendant is one whose possible return to society is desirable. In this sense, then, the jury's deliberation is individualized. The instruction invites the jury to predict not so much what some future Governor might do, but more what the defendant himself might do if released into society.

Any contention that injecting this factor into the jury's deliberations constitutes a departure from the kind of individualized focus required in capital sentencing decisions was implicitly rejected by the decision in Jurek. Indeed, after noting that consideration of the defendant's future dangerousness was an inquiry common throughout the criminal justice system, the joint opinion of Justices Stewart, POWELL, and STEVENS observed: “ What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must deter