Court Filing
Electronically Filed
11/13/2024 12:10 PM
Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court
By: Chynae Hull, 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 Jay W. Logsdon, First District Public Defender Idaho State Public Defender 1450 Northwest Blvd.
Coeur d'Alene, Idaho 83814
Phone: (208) 605-4575 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, Attorney at Law, Bar Number: 5836 Jay W. Logsdon, First District Public Defender, Bar Number: 8759 Elisa G. Massoth, Attorney at Law, Bar Number: 5647
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,
DEFENDANT'S EXHIBIT LIST FOR
V. DEATH PENALTY MOTION RE:
GROUNDS OF ARBITRARINESS
BRYAN C. KOHBERGER,
Defendant.
COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby files with the court his redacted Exhibit A. At the hearing held on November 2, 2024 Judge Hippler granted the defense permission to file a redacted copy of the below exhibit.
DEFENDANT'S EXHIBIT LIST FOR DEATH PENALTY
MOTION RE: GROUNDS OF ARBITRARINESS PAGE 1
Exhibit Disclosures:
Exhibit A: PowerPoint by Professor Cover and data in support of study. (redacting child and sexual assault victim names).
PDF documents attached; USB electronic of same will be filed no later than 11/18/24 due to small print created by PDF conversion of Professor Cover's study. The USB electronic file is more readable.
DATED this 13 day of November, 2024.
an
ANNE C. TAYLOR
ANNE TAYLOR LAW, PLLC
CERTIFICATE OF DELIVERY
I hereby certify that a true and correct copy of the foregoing was personally served as indicated below on the 13 day of November, 2024 addressed to:
Latah County Prosecuting Attorney -via Email: paservice@latahcountyid.gov Elisa Massoth – via Email: legalassistant@kmrs.net
Jay Logsdon-via Email: Jay.Logsdon@spd.idaho.gov Jeffery Nye, Deputy Attorney General – via Email: Jeff.nye@ag.idaho.gov Ingrid Batey, Deputy Attorney General – via Email: ingrid.batey@ag.idaho.gov Dul
DEFENDANT'S EXHIBIT LIST FOR DEATH PENALTY
MOTION RE: GROUNDS OF ARBITRARINESS PAGE 2
NARROWING
DEATH-ELIGIBILITY
IN IDAHO:
AN EMPIRICAL
PROFESSOR
ALIZA PLENER COVER
AND
CONSTITUTIONAL
ANALYSIS
DEFENDANT'S
A
EXHIBIT NO.
IDENTIFICATION / EVIDENCE
CASER01-24-31665
DATE: 11/13/24
Why this study?
Why Idaho?
Guided discretion Individualized Statutory narrowing decision-making (" eligibility decision ") (including mitigation)
Jury Death- Discretion sentenced Legislative murders Narrowing Death-eligible murders All murders All homicides
Last names
THE
CUMULATIVE
EFFECT OF
MULTIPLE
CATEGORIES
ON THE
NARROWING
FUNCTION
■ A B C D E -F ■ G ■ H I -J -K -L M
■ NO-P - Q-R ■ S ■ T ■ U ■ < ■ W X Y Z
STEP 1
■ Analysis of Statutes & Caselaw
Idaho Code § 18-4003.
FIRST
(a) All murder... which
DEGREE
is perpetrated by any
MURDER
kind of willful, deliberate
(PRE-
and premeditated
MEDITATED)
killing is murder of the first degree.
Idaho Code § 18-4003.
* (d) Any murder committed in the FIRST perpetration of, or attempt to perpetrate, aggravated battery
DEGREE
on a child under twelve (12) years
MURDER
of age, arson, rape, robbery,
(FELONY
burglary, kidnapping or mayhem, MURDER) or an act of terrorism... or the use of a weapon of mass destruction, biological weapon or chemical weapon, is murder of the first degree.
CONTRAST WITH OTHER STATES
Examples:
■ Louisiana First Degree Murder Texas Capital Murder Kansas Capital Murder
(9) The following are statutory aggravating circumstances, at least one (1) of which must be found to exist beyond a reasonable doubt before a sentence of death can be imposed:
(a) The defendant was previously convicted of another murder.
(b) At the time the murder was committed the defendant also committed another murder.
(c) The defendant knowingly created a great risk of death to many persons.
(d) The murder was committed for remuneration or the promise of remuneration or the defendant employed another to commit the murder for remuneration or the promise of remuneration.
AGGRAVATING (e) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
CIRCUMSTANCES (f) By the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.
(g) The murder was committed in the perpetration of, or attempt to perpetrate, IDAHO CODE § arson, rape, robbery, burglary, kidnapping or mayhem and the defendant killed, intended a killing, or acted with reckless indifference to human life.
19-2515 (9) (h) The murder was committed in the perpetration of, or attempt to perpetrate, an infamous crime against nature, lewd and lascivious conduct with a minor, sexual abuse of a child under sixteen (16) years of age, ritualized abuse of a child, sexual exploitation of a child, sexual battery of a minor child sixteen (16) or seventeen (17) years of age, or forcible sexual penetration by use of a foreign object, and the defendant killed, intended a killing, or acted with reckless indifference to human life.
(i) The defendant, by his conduct, whether such conduct was before, during or after the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.
(j) The murder was committed against a former or present peace officer, executive officer, officer of the court, judicial officer or prosecuting attorney because of the exercise of official duty or because of the victim's former or present official status.
(k) The murder was committed against a witness or potential witness in a criminal or civil legal proceeding because of such proceeding.
(e) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
(f) By the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for
" FUZZY "
human life.
AGGRAVATORS
* * * (i) The defendant, by his conduct, whether such conduct was before, during or after the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.
STEP 2
Study: Gathering Data
METHODOLOGY
■ Universe of Cases
Date range: June 2002 – 2019
Source: List of cases charged 1D or 2D from Idaho Supreme Court ■ Excluded cases
METHODOLOGY
■ Case file review (with research assistants) Court filings / transcripts from attorneys Court records in courthouses Online sources ■ Westlaw ■ U of I Digital Commons case file repository ■ iCourt ■ Idaho Department of Correction offender search
METHODOLOGY
Information collected:
Offense charged?
Notice of intent to seek the death penalty?
Death penalty sought at trial?
Offense of conviction?
Did the facts support a first-degree murder conviction?
Was a conviction obtained by plea or verdict after trial?
Was the sentence death or less than death?
If the case was procedurally or factually first-degree murder, did any of the " clear " aggravators apply?
If no " clear " aggravators applied, did any of the " fuzzy " aggravators apply?
Explanation
METHODOLOGY
■ 194 cases: sufficient information ■ 26 cases: insufficient information
CATEGORIZING CASES
Categorization Definition High level of confidence the case was both 1DCap first-degree and death-eligible High level of confidence the case was first- 1DMaybeCap degree; significant possibility that it was deatheligible High level of confidence the case was first- 1DNon degree; low possibility that it was death-eligible Unable to categorize as first-degree with 2Dv1D confidence High level of confidence the case was not first-
2D
degree
METHODOLOGY
" Controlling fact-finding " rule ■ Deference to prosecutorial allegations of facts, unless rebutted by judge / jury ■ " Legal sufficiency " rule, assuming as true the prosecutorial allegations
STEP 3
■ Analysis & Findings
FIRST-DEGREE ELIGIBILITY
Factual or Charged Convicted procedural 1D 1D 1D #% #% #% 167-175 86-90% 173 89% 108 56%
DEATH-ELIGIBILITY
DEATH
CASE CATEGORY TOTAL # 1DCAP 1DMAYBЕСАР ELIGIBILITY
RATE (%)
Factual / procedural 1D 167 155 9 93-98% 1D conviction 108 105 2 97-99% (procedural 1D) 1D charge 173 146 9 84-89% All cases in study 194 155 9 79-85% (1D and 2D)
% of death-eligible convictions
CHARGING
DECISIONS
Notice of intent Death Death sought to seek death sentence at trial filed imposed 21% 5% 3%
Furman: approximately 15-20% of convicted, death-eligible murderers sentenced to death
INTERSTATE COMPARISON
Death eligibility (%) % of% of factual &% of all State (date range) procedural 1D procedural 1D murders (1D murders murders and 2D) Idaho (2002 – 2019) 97-99% 93-98% 79-85% Arizona (2002 – 2012) 98% California (1978 – 2002) 95% 86% 68% - Colorado (1999 – 2010) 90.4% Georgia (1974 – 1979) 86% - Georgia (1995 – 2004) 56% Maryland (1978 – 1999) ~ 21% Nebraska (1973 – 1999) 25%
Death- Deatheligible Death-eligible eligible cases w / cases where Death- cases w / notice of death sought County eligible death intent to at trial cases sentence seek death
#% #% #% GEOGRAPHY
Total 155 32 21% 7 5% 4 3% 3 biggest by population 76 20 26% 7 9% 4 5% Ada, Canyon, Kootenai All but 3 biggest 79 12 15% 0 0% 0 0% counties
OTHER FACTORS / OBSERVATIONS
■ Egregiousness (many highly aggravated cases – multiple homicides, torture, etc. – did not result in capital trials)
CONCLUSIONS
Key findings
Minimal statutory narrowing: statutes are doing little to winnow down the class of murderers eligible for the death penalty Low rate of filing notice of intent to seek the death penalty, ☐ pursuing death at capital trial, securing death sentences Prosecutorial discretion Unconstrained discretion for prosecutors, with minimal legislative narrowing, is inconsistent with constitutional mandate Death penalty as bargaining chip?
Weakens penological justifications of the death penalty: lessens deterrent effect; undermines arguments that it's necessary for purposes of retribution or deterrence Evolving standards of decency
OREGON, 2019 –
EXAMPLE OF A NARROWED STATUTE
Aggravated Murder:
[1] Murder of 2 or more people – terrorism;
[2] While in custody and after a previous homicide conviction;
[3] Premeditated and against a child under 14 years of age; or [4] Premeditated and against a police officer or other officer
categoriz'n 1DCap /: Charge Conviction code (1D if Defendant Researcher County 1DMaybeCa p / 1DNon / Clear fuzzy vs. agg File source included 10) Death notice? DP at trial sought? Offense convicted? includes 10) a Plea / Jury murder Facts support conviction 10? Sentence received? Clear aggravator (s)? disregard HAC / Utter / propensity? Explanation Media additions Race of Def. victim Race (s () s) of Gender of Def. Gender (s) of victim (s) Additional consulted sources date incident of 10 x2 " Douglas, an African American, was charged with two counts of murder in the first degree... and one count of attempted murder in the first degree... after he Douglas John C., 10Cap Clear IDCt / icourt attempted 1D murder 10 premeditated Yes (convicted,) LWOP 9 (b) (more than one murder) shot guilty three on all individuals three counts, one ". of State whom v. Douglas survived,. " State 44538 v., Douglas 2018 WL, No. 330142 44538, at, 2018 * 2 (Idaho WL Ct 330142. App,. at Jan. * 1 9 (Idaho, 2018 Ct). App. Jan. 9, 2018). " The jury returned a verdict of Multi (male, male)
HAC of him: State with at this sentencing ligature: and " But strangled there's a him reasonable until he passed of out the and evidence then stood that there over was him and no struggle deliberately here stabbed at all, that him he in came the chest up from six behind times to make sure he was dead UTTER. And DISREGARD if you can: " graduate The court homcides will recall into the egregious testimony, that I think he this is either falls at a really least somewhere good actor in the e is middle just very. " (1707, very) remorseless. He goes to the apartment of Manny girls in, downtown the day well Boise, I, think spend the the homicide night with i the the girls morning Thursday, and night he spends. ANd then that Friday night night Nanny they go and to they Limelight go to some. And girls there's apartment never any and indication they party by with anybody the that kept he the is vehicle acting out out of of most sorts. of They their start sight confronting until then, him and about nobody having catches Leon's on that vehicle anything, but that's is out not of until sorts with they him. all The find state out concludes that Leon that is dead he was. He has able apparently to kill Leon, " walk Bottom out line of the, Judge apartment, I think, get he displays rid of the in murder his actions weapon after, the and crime just by and very in cold his about arview it, very to the calculating police just, very a complete calm, and and that's utter concerning lack of remorse to us.. " You'll (1709-10 recall). the first Fernando thing Bayasteros he says to the. ' With police that in guy his. interview I think, they're that utter asking lack him of, " Where remorse are and you complete living? " And self-centeredness he says, " With is that what guy his. " behavior Not with shows my friend throughout Leon, these court proceedings someone he, throughout the trial. I don't it didn't recall seeing to any faze remorse him in, the any least much. " (1711-12 of emotion) at all from Mr. Sanchez. showed some pretty nasty pictures of dragged HAC: Judge to at the sentencing bedroom: and " He deliberately intentionally stabbed took the while life he of another lay on the. That floor was. obvious And the from person the facts who killed of the him case, Mr.. It Sanchez appeared, wanted that Leon to make strangled very sure first that and he v dead defendant. Now while is so utterly lacking in segregious rehabilitative and does potential demand that in imprisonment my opinion an until exceptionally death is the only feasible ure means of retribution of protecting and deterrence society. " (1730-31, I do not) find the .. PROPENSITY [i] t appears: Testimony to the court from that young the defendant woman " about did engage attempted in, if not truly strangulation attempting that to is kill pending her, at least in Minidoka deliberately County choking, aand her I find when her he testimony lost his temper to be fairly. So I credible find.
that he has propensity to angered, if nothing else. " (1731-32) 10 (premeditat murder POSSIBLE 9 (g) (robbery) - ROBBERY think it could / REMUNERATION have been robbery: Also. " the The possibility only logical of conclusion during the yo course of reach a robbery from this or for evidence remuneration is that. on He Thursday is convicted morning of grand, the theft defendant in addition strangled to murder and stabbed, but I Vasquez AC 1DCap MAYBE fuzzy clear SAPD copy hard 10 ed theft) + grand 10 yes jury (, convicted premeditated by) less than death also explanation possibly) remuneration (see propensity HAC, utter disregard, Leon sell as and much took of everything it as he can that and get precious out of town to Lean. " (state's because closing the argument defendatn at needed trial, 1629-30 it. He had) nowhere to live. money. And the next day he is trying to Hispanic Hispanic male male 4/18/2007 " fragments On August of 11 Rebecca, 2002, a Ramirez burned Almarez (found " Almarez in a " remote) and her desert two sons area, outside four-year of-Mou old R.R. and two-year Idaho-old. Inside M.H. th Almarez and M.H. charred had suffered remains fatal and bone gunshot Orozco Lopez-, wounds On August to 16, 2002, State ' s filled cause a of complaint death was charging undetermined Defendant. The with vehicle three belonged counts of to first Defendant degree -, murder who previously for the deaths dated of Almarez Almarez. and her two sons.... A jury orge 1DCap Clear IDCT / Court 3x 10 urder yes (convicted) 3xLWOP 9 (b) (more than one murder) 1057 convicted (2015) Defendant on all three counts, and the court imposed three concurrent fixed life sentences. " State v. Lopez-Orozco, 159 Idaho 360 P.3d 1056, anic Multi children (female), 2 male A the jury jury found could Sanchez not reach guilty a unanimous of first degree decision murder a and the, after imposition the penalty of the phase death of penalty the trial. Therefore, additionally, because found the the jury existence found of some two statutory statutory aggravators aggravators,. the However district, yes (torture, agg State court v sentenced. Sanchez, Sanchez Idaho to 521 a determinate, 523, term 1130 of life, 132 imprisonment (Ct. App. 2009.) Sanchez Ignacio J, AC 10 Cap Fuzzy IDCt / iCourt ID 1D murder 10 battery verdict) form -see p. 434 LWOP HAC, utter disregard See clerk's record p. 469-jury verdict form, with finding of HAC and utter disregard. Hispanic male child 12/7/2003 robbery 1D m:
kidnapping burglary Herrera, degree aggravated; 9 perpetration (g) murder committed of kidnapping in, Verdict form: jury finds him guilty of 1D murder w / malice aforethought as well as 1D murder in course of kidnapping, robbery, burglary Raul Edgar SAPD efile yes (convicted) less than death robbery, burglary Ruling on Rule 35 35 motion motion - - p p.. 41 41.
Soon Brink issued thereafter profanity, his-laced also threats disappeared of death. He or inquired serious of injury the occupants against Lillevold of the on home several, and occasions they indicated. Brink that was Brent seen sawing Lillevold off had the taken barrel his of van a shotgun. ensuing and working days, with with getting his kand trigger back assembly Istated. to several hida people sawed his-intention off shotgun to behind exact revenge the washing on Lillevold machine. Brink became absessed On room May and 29 reasoned, 2005, Brink that drov Lillevold o the was acquaintance's also present. He home retrieved where the his shotgun from stolen behind. He heard the washer the voices and of entered Lillevold's the girlfriend room. Brink and threatened a ther acquaintance Lillevold and in a demanded regarding gas that money Lillevold. Lillevold's girlfriend When rummaged Brink through later demanded her purse t and appeared to try to give rgument the purse ensued to Lillevold between. Brink Brink fired, Lillevold the shotgun, Lillevold's and the girlfriend round struck 18-4001 Lillevold to-03 in, 19-2520 the chest, and, killing being him a almost persistent instantly violator. Brink, I.C. § 19-2514 scharged. with first degree murder ement for using a deadly weapon, I.C. 55 State v. Brink, 34391, 2008 WL 9471256, at 1 (Idaho Ct. App 7, 2008) Shelly's Petitioner hous told his sister and Debbi Petitioner that Lillevold yelled, " had You're stolen a dead his man van,, and " out Debbi the window urged Petitioner as they passed to go the to the house police. Petitioner. Petitioner told asked Edward Preston Robbins Emery that to Petitioner drive him by by going to " off someone " for stealing his van. (Id. at 304.) Wengler, No. 1: 13-CV-00039-EJL, 2015 WL 874154, at 3 (D. Idaho Feb. 27, 2015) eyewitnesses Petitioner called put Lillevold their weapons and on the held floor Lillevold, so that, Shelly only, Grob Petitioner, and was Shaggy armed at gunpoint. The victim while and he eyewitnesses demanded return put several of the knives van. Petitioner on the floor made. Shelly the victim couldn't and find the the van knife. Petitioner that repeatedly purse told, and Shelly she kept to put trying trying her to purse show down Petitioner, but she that did the not purse. (State's didn't Lodging contain A-any 6.) money when Petitioner demanded gas money to retrieve 1D murder At gun trial incident, Petitioner on a