Motion to Strike State Notice

Electronically Filed
9/5/2024 2:48 PM

Second Judicial District, Latah County Julie Fry, Clerk of the Court Anne Taylor Law, PLLC 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 LATAH

STATE OF IDAHO CASE NUMBER CR29-22-2805

Plaintiff,
V. MOTION TO STRIKE STATE'S

NOTICE PURSUANT TO IDAHO CODE

BRYAN C. KOHBERGER, $ 18-4004A ON GROUNDS OF

ARBITRARINESS

Defendant.

COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, hereby submits the following Motion to Strike the State's Notice Pursuant to Idaho Code § 18-4004A on the grounds that Idaho's death penalty scheme fails to constitutionally narrow the class of offenders eligible for the death penalty and results in imposition of death in a capricious and
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arbitrary manner in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution as well as Article I, Sections 2, 6 and 13 of the Idaho Constitution.

The decision to seek the death penalty for Mr. Kohberger violates the requirements of the Eighth and Fourteenth Amendments that the provisions of a state's death penalty statute must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence compared to others found guilty of murder. The failure to narrow the class of persons eligible for capital punishment deprives Mr. Kohberger of his rights to due process and equal protection under the Fourteenth Amendment; it permits the arbitrary selection of defendants for death without consistent guidelines to ensure uniformity; and it violates the Eighth Amendment prohibition against cruel and unusual punishment. On the same grounds, it also violates Article I, Sections 2, 6 and 13 of the Idaho Constitution.

Background On December 29, 2022, the State filed a five count criminal complaint charging Mr.

Kohberger with four counts of first degree murder pursuant to I.C. §§ 18-4001, 4002, 4003, 4004, and one count of burglary I.C. §§ 18-1401, 1403. The complaint alleged that Mr. Kohberger " did willfully, unlawfully, deliberately, with premeditation and malice aforethought, kill and murder Madison Mogen, a human being, by stabbing Madison Mogen, from which she died. " It further alleged the same as to Kaylee Goncalves, Xana Kernodle, and Ethan Chapin.

On May 16, 2023, the State filed an Indictment with the same charges against Mr.

Kohberger.

On June 26, 2023, pursuant to I.C. §§ 18-4004A and 19-2515, the State filed a “ Notice Pursuant to Idaho Code § 18-4404A ” indicating it intended to seek the death penalty. The Notice Pursuant to Idaho Code § 18-4404A alleged as aggravators that Mr. Kohberger committed the murders at the same time, that either murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity, that by the murder or the circumstances surrounding its
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commission, Mr. Kohberger exhibited utter disregard for human life, that either murder was committed in the perpetration of, or attempt to perpetrate arson, rape, robbery, burglary, kidnapping or mayhem and / or that Mr. Kohberger by his conduct, whether such conduct was before, during or after the commission of either murder, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.

Argument I. Arbitrariness in the selection and imposition of the death penalty is cruel and unusual.

Idaho's death penalty scheme fails to narrow, in a constitutionally adequate way, the class of persons eligible for the death penalty and creates a substantial and constitutionally unacceptable likelihood that the death penalty will be imposed arbitrarily and capriciously. See Furman v.

Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726 (1972) (White, J., concurring) (death penalty statute must provide a “ meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in which it is not ”). A capital murder statute must take into account the Eighth Amendment principles that death is different, California v. Ramos, 463 U.S. 992, 998- 99, 103 S.Ct. 3446 (1983) and that the death penalty must be reserved for those killings that society views as the most grievous affronts to humanity. Zant v. Stephens, 462 U.S. 862, 877 n.15, 103 S.Ct. 2733 (1983).

Under the Eighth and Fourteenth Amendments, a death penalty statute must, by rational and objective criteria, genuinely narrow the group of murderers who may be subject to the death penalty. Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514 (1992); McCleskey v. Kemp, 481 U.S.

279, 305-06, 107 S.Ct. 1756 (1987); Zant, 462 U.S. at 877-78. Idaho's death penalty statute as written and applied fails to perform the constitutionally required narrowing.

In 1972, in Furman, the United States Supreme Court struck down the death penalty schemes of states including Georgia and Texas as unconstitutional because they created too great a risk of arbitrary death sentences. This conclusion derived from the Court's understanding that,
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as to the Georgia scheme, only 15-20% of convicted murderers who were death-eligible were being sentenced to death and that such schemes permitted too great a risk of arbitrariness to satisfy the Eighth Amendment. Furman, 408 U.S. at 386 n.11 (BURGER, C.J., dissenting); id. at 435 n.19 (POWELL, J., dissenting); Gregg v. Georgia, 428 U.S. 153, 182 n.26, 96 S.Ct. 2909 (1976) (plurality opinion).

Justice Stewart relied in part on Chief Justice Burger's statistics when he stated in his concurring opinion: " it is equally clear that these sentences are ‘ unusual ' in the sense that the penalty of death is infrequently imposed for murder.... ” Furman, 408 U.S. at 309. See Furman, 408 U.S. at 309 n. 10. In Gregg, the plurality reiterated this understanding: “ It has been estimated that before Furman less than 20 percent of those convicted of murder were sentenced to death in those states that authorized capital punishment. ” 428 U.S. at 182 n.26. Thus, while the Court has never addressed precisely what percentage of statutorily death-eligible defendants would have to receive death sentences in order to eliminate the constitutionally unacceptable risk of arbitrary capital sentencing, Furman, at a minimum, must be understood to have held that any death penalty scheme under which fewer than 15-20% of statutorily death-eligible defendants are sentenced to death permits too great a risk of arbitrariness to satisfy the Eighth Amendment.

In order to meet the concerns of Furman, the state must genuinely narrow, by rational and objective criteria, the class of murderers eligible for the death penalty: “ Our cases indicate, then, that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. " Zant, 462 U.S. at 878.

As the types of murders for which the death penalty may be imposed become more narrowly defined and are limited to those which are particularly serious or for which the death penalty is peculiarly appropriate it becomes reasonable to expect that juries even given discretion not to impose the death penalty – will impose the death penalty in a substantial portion of the cases so defined. If they do, it can no longer be said that the penalty is being imposed wantonly and freakishly or so infrequently that it loses its usefulness as a sentencing device.

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Gregg, 428 U.S. at 222 (WHITE, J., concurring).

II. Idaho's capital punishment laws fail to narrow the types of murder that qualify for the death penalty.

Under Idaho's death penalty scheme, a defendant convicted of any type of first-degree murder is eligible to be sentenced to death if the sentencer finds at least one statutory aggravating circumstance. I.C. § § 18–4004, 19–2515 (c). There are eleven statutory aggravators outlined in Idaho Code § 19-2515. These statutory aggravators cover virtually all types of murder and include, inter alia, any murder in which the defendant committed a risk of death to many people; any murder for remuneration; any murder that is heinous, atrocious or cruel, manifesting exceptional depravity; any murder in which the defendant exhibited utter disregard for human life; any murder that was committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, kidnapping or mayhem and the defendant killed, intended a killing, or acted with reckless indifference to human life; and any murder in which the defendant exhibited a propensity to commit murder and will probably constitute a continuing threat to society. І.С. 19-2515 (9).

Under Idaho's death penalty scheme, there are so many aggravating circumstances, so broadly construed, that the aggravators accomplish no narrowing. Idaho's death penalty scheme defines death-eligibility so broadly that it creates a greater risk of arbitrary death sentences than the pre-Furman death penalty schemes. Two years ago Professor Aliza Cover published her study Narrowing Death Eligibility in Idaho: An Empirical and Constitutional Analysis, 57 IDAHO L.

REV. 559 (2022) (See Attached as Exhibit A). 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.

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The main problem with the expansion of death-eligibility is that the statutory list of " aggravating circumstances " is the one and only place, in the entire death-penalty system, where substantive limits can be imposed on the death penalty that are not discretionary. If the statutory list is overly broad, then the discretionary decisions of prosecutors, judges, and juries must carry the entire burden of ensuring that the death penalty is applied narrowly and reasonably consistently. If the statutory list includes virtually all first-degree murders, then discretionary decision-makers must carry the entire burden of selecting, from such a large pool, the small handful of the “ worst of the worst ” murders for which the death penalty will be imposed. Moreover, discretionary decision-makers often do not even get to see all of the cases in the pool – juries, for example, see only one case, and thus cannot easily compare that case to other death-eligible crimes.

As a result, Idaho's scheme is possibly worse than what the Supreme Court struck down in Furman. Recall that any death penalty scheme under which fewer than 15-20% of statutorily death-eligible defendants are sentenced to death permits too great a risk of arbitrariness to satisfy the Eighth Amendment- and compare to what Prof. Cover found:
Prosecutors filed a notice of intent to seek the death penalty in 32 cases, or in 21% of the 155 death-eligible cases.162 In 7 cases relating to 6 defendants (5% of the death-eligible cases), the state pursued death at a trial. Overall, death sentences were secured in only 4 cases (or 3% of the capital-eligible cases) (two for the same defendant).

Even among the 32 cases in which a notice of intent to seek the death penalty was filed, death was infrequently pursued to verdict. 23 of 32 cases with a notice of intent to seek death (72%) resolved in a guilty plea, where the prosecution generally agreed to withdraw its notice of intent to seek the death penalty in exchange for a guilty plea. Only 9 of the 32 cases (28%) resolved in jury trial, and the prosecution sought the death penalty in only 7 (22%) at trial. A death sentence was obtained in only 4 of 32 death-noticed cases (13%). In two of the other capital trials, the jury unanimously found at least one aggravating circumstance but did not return a death verdict. In the remaining capital case, the jury could not reach a unanimous decision on the existence of any of the aggravating circumstances.

The data in the study reveal an extraordinarily low frequency rate of death sentencing. In Furman, the Supreme Court invalidated Georgia's system as arbitrary and capricious, where roughly 15-20% of convicted, death-eligible murderers were sentenced to death.168 Idaho's frequency-3% of the death-
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eligible cases-is much lower. When compared with results of studies in other states, Idaho's frequency rate is also lower than all other states that have been studied other than Colorado, which in 2020 abolished its death penalty and retroactively commuted all existing death sentences in the state.

57 IDAHO L. REV., at 590-91.

The expansion of death-eligibility also contributes directly to the serious and welldocumented problem of racial disparity in the application of the death penalty. When various decision-makers within the criminal justice system, and especially the jury (whose decisions are essentially unreviewable), possess too much discretion over capital sentencing within a large pool of death-eligible murders, then overt and hidden prejudices can influence the decision. By narrowly restricting the categories of death-eligibility to a small number of precisely defined and extremely heinous murders, and thereby restricting the discretion of capital-case decision-makers, the problem of racial disparity can be addressed in the most meaningfully possible way.

Additionally, the Idaho Supreme Court in State v. Hall, 163 Idaho 744, 798-99 419 P.3d 1042 (2018) citing Zant v. Stephens, 462 U.S. 862, 878, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), held that Idaho statute permits non-statutory aggravating evidence. Now that a jury is free to hear any bad evidence the State can muster, there is no real way to know whether juries will ever base their decision for death upon the statutory aggravators the legislature passed to comply with Furman. The penalty hearing has simply devolved back into what it was pre-Furman.

III. Idaho's capital punishment scheme produces unequal application of the death penalty based on geography.

Because all first degree murders in Idaho fall within at least one of the aggravating circumstances enumerated in Idaho Code § 19-2515, Idaho's murder and death penalty statutory scheme affords the individual prosecutor complete discretion to determine whether to seek the death penalty, in violation of the Eighth and Fourteenth Amendments, thereby creating a substantial risk of county-by-county arbitrariness. There are no statewide standards to guide the prosecutor's discretion. Point in fact- Professor Cover found that the three largest counties account
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for almost the same number for death eligible case as the remaining twenty-four counties combined- and their death penalty filings were two-thirds higher than the other counties. Id. at
593. What is more- no cases proceeded to a capital trial in any of the smaller counties. Id. at 594.

In plain English: under the Idaho statutory scheme, whether you are chosen for the death penalty depends more on where you committed the crime than how you committed the crime. The Idaho statutory scheme, by design and in effect, improperly produces arbitrary and capricious prosecutorial discretion throughout the capital case process.¹ See by way of example, State of Idaho v. Kaylor CR40-23-970, where just recently the State specifically filed notice not to seek death in a quadruple murder (See Attached as Exhibit B).

The Supreme Court of the United States has recognized that when fundamental rights are at stake, uniformity among the counties within a state, in the application of processes that deprive a person of a fundamental right, is essential. Bush v. Gore, 531 U.S. 98 (2000). When a statewide scheme is in effect, there must be sufficient assurance “ that the rudimentary requirements of equal treatment and fundamental fairness are satisfied. ” Id. at 109. This principle must apply to the right to life as well as the right to vote.

In Idaho, uniformity in the justice one receives in our various counties is further guaranteed by Art. V Secs. 2 and 26. In the words of the introduction of the legislature court reformation plan of 1966:
By the adoption of this amendment to our basic document of government, the voters have indicated at least two very basic concepts of government. One of these is that the people, acting through their elected senators and representatives, wish to have the final voice in selecting the type of courts that will serve them, the jurisdiction of the courts, and the method of selecting the judicial personnel who will staff the 1 It should be noted that Idaho became aware of this issue at least as early as 1997. See, House Concurrent Resolution No. 13 (1997). The 1998 Idaho Legislature passed House Bill 840 containing the creation of both the Capital Crimes Defense Fund and the State Appellate Public Defender. The law pertaining to the CCDF was codified as I.C. § 19- 863A. The fund is voluntary, and only those counties participating can have cases handled by the SAPD on appeal.

I.C. § 19-863A. The law permits the governing board of the fund to take all steps necessary or proper to determine how the fund is to be used to assist counties in meeting defense costs in cases where killing the defendant is a legal possibility. Id.

Clearly, this fund does not work.

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courts. The people have made it quite clear that the establishment of the judicial system is a function that must remain quite close to the people themselves, and must not be given over to any special groups, interests, or desires.

The second concept embodied in the 1962 amendment amplified a tenet of judicial organization that has been expounded for years. This is that the administration and supervision of the entire court system he under one head. The administration of justice is too important to the citizens of the state to have different qualities of justice being administered in different parts of the state.

COMMITTEE ON COURT STUDY, 39TH IDAHO LEG., COURT MODERNIZATION IN IDAHO (RESEARCH PUB. N. 10), at 1 (1966). Recall that prosecutors are members of the judicial branch in Idaho. See, IDAHO CONST. Art. V Sec. 18.

Despite this, the forty-four counties through their respective prosecutors ' offices make their own rules within the broad parameters of Idaho's death penalty scheme as to who is charged with capital murder and who is not. This is not uniform treatment. In some Idaho counties a life is worth more than in others, because county prosecutors use