Court Filing
Filed: 04/24/2025 15:17:51 Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court
By: Deputy Clerk-Waters, Renee
IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF
THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA
STATE OF IDAHO,
Plaintiff, Ada County Case No. CR01-24-31665
V.
ORDER ON DEFENDANT'S MOTION
BRYAN C. KOHBERGER, TO STRIKE DEATH PENALTY RE:
AUTISM SPECTRUM DISORDER
Defendant.
I. INTRODUCTION
Having been recently diagnosed with Autism Spectrum Disorder (" ASD ") by a clinical neuropsychologist retained by his defense team, Defendant seeks to strike the death penalty as a sentencing option, arguing it violates his constitutional rights. He contends ASD is the functional equivalent of an intellectual disability, which is categorically recognized as a disqualifying exemption to the death penalty. Even if the Court rejects a categorical approach, he argues the death penalty option should nevertheless be stricken in his case given the intense media attention on Defendant's disability.
In response, the State disputes that ASD is equivalent to an intellectual disability for purposes of a categorical exemption to the death penalty and further notes that Defendant has not shown a national consensus supporting such an exemption. As for Defendant's individualized argument, the State contends that none of Defendant's concerns warrant striking the death penalty.
Oral argument on the motion was held on April 9, 2025, after which the Court took the matter under advisement. The Court finds striking the death penalty is not warranted.
II. STANDARD
Constitutional issues, including the constitutionality of Idaho's capital sentencing scheme, are questions of law. Rhoades v. State, 149 Idaho 130, 132, 233 P.3d 61, 63 (2010).
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III. FACTS
During the course of this case, the defense team retained Dr. Rachel Orr, a clinical neuropsychologist, to conduct a comprehensive neuropsychological evaluation of Defendant and issue a report. Def.'s Exh. 2 (Orr Report). As part of this evaluation, Dr. Orr interviewed Defendant, Defendant's immediate family members and other relevant adults from Defendant's childhood, including former teachers. She gathered information on Defendant's history, made behavioral observations and administered cognitive tests. Based on her evaluation, Dr. Orr diagnosed Defendant with " Autism Spectrum Disorder, level 1, without accompanying intellectual or language impairment. " (" ASD "). Id., p. 16.
According to Dr. Orr, ASD is a " complex, heterogenous, neurodevelopmental disorder rooted in brain differences and characterized by social and behavioral features. " Id., p. 16. It causes " deficits in which affected individuals perceive and react to others and their environment, causing problems in social communication and interactions, repetitive behaviors, and narrow range of interests. " Def's Exp. Discl., Exh. D13-B, p. 31 (" Ryan Report "). ¹ There is a wide range of autism symptoms and severity. Id. Deficits can include a restricted range of affect, atypical eye contact, displaying facial expressions or movements that do not match what is being said, failure to consider social cues, having trouble with speech reciprocity and repetitive behaviors.2 Pursuant to the American Psychiatric Association's Diagnostic and Statistical Manual, Fifth Edition (2013) (" DSM-5 "), there are two primary diagnostic criteria for ASD. U.S. Center for Disease Control & Prevention (“ CDC "), Clinical Testing and Diagnosis for Autism Spectrum Disorder, https://www.cdc.gov/autism/hcp/diagnosis/index.html (last visited Apr. 22, 2025) (citing DSM-5). The first criterium is persistent deficits in each of the following areas of social communication and interactions: 1) social-emotional reciprocity; 2) nonverbal communicative behaviors used for social interactions, and; 3) developing, maintaining and understanding relationships. The second criterium is the display of restrictive, repetitive patterns of behavior, interests or activities, as manifested by at least two of the following: 1) stereotyped or repetitive movements, use of objects, or speech; 2) insistence on sameness, inflexible adherence to 1 Dr. Eileen Ryan conducted a psychiatric evaluation of Defendant and agreed with Dr. Orr's diagnoses. Her expert report is attached to her disclosure, filed by Defendant as Exhibit D-13 on January 23, 2025.
2 U.S. National Institute of Mental Health website, available at:
https://www.nimh.nih.gov/health/publications/autism-spectrum-disorder (last visited April 16, 2025).
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routines, or ritualized patters of verbal or nonverbal behavior; 3) highly restricted, fixated interests that are abnormal in intensity or focus, and; 4) hyper- or hypo-reactivity to sensory input or unusual interest in sensory aspects of the environment. Id.
The severity of ASD is based on these two criteria. Id. There are three levels of severity, which corollate to how much support is needed. Level 3, which is the most severe, requires " very substantial support. " Level 1, the least severe, requires merely " support. " Id.
As to the first criterium, Dr. Orr noted in her report that Defendant's family and peers reported that Defendant displayed atypicalities and difficulties in social settings dating back to early childhood, ³ including: 1) inability to adjust his behavior to suit the social context; 2) poor social reciprocity in conversation; 3) issues with nonverbal behavior like personal space, and; 4) limited ability to take perspectives of others. She notes that these difficulties played a role in the eventual termination of his funding for his graduate program. At the time of his arrest, he was pursuing a PhD in criminal justice and criminology at Washington State University.4 In her personal evaluation of Defendant, Dr. Orr observed that Defendant demonstrated some typical social behaviors, such as " fairly consistent (though intense) eye contact, polite demeanor, and social conventions (e.g. shaking hands upon greeting). " He engaged in conversation and was never " overtly inappropriate. " However, Dr. Orr also noted social behavior consistent with that reported by others, such as a " lack of fluidity " in his verbal interactions, awkward comments or abrupt responses, " inconsistent understanding / acknowledgement of humor " and " occasional intense gaze. " Id. at p. 9. She noted he had " poor reciprocity of interaction, including very frequent re-focus of conversation back on his own experiences or unusual responses to my sharing. " Id. She also noted his lack of close friends and his " poor insight into his role in relationships. " Id.
Dr. Orr further observed deficits in Defendant's nonverbal communication, noting " poor integration of verbalizations and eye contact; limited use of descriptive gestures; restricted range 3At an early age, Defendant's school psychologist recommended that he be evaluated for ADHD and Asperger's disorder (now ASD). He was clinically diagnosed with ADHD only.
4 Defendant previously received an associate's degree in liberal arts, with a concentration in psychology (2018), a bachelor's degree in forensic track, psychology (2020) and a master's degree in criminal justice (2022). Defendant achieved a 4.0 GPA in his master's program.
5 By way of example, Dr. Orr noted that Defendant commented that he " had a lot of fun " completing a cognitive test.
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of affect; atypical tone. " Id., p. 16. As to his speech, Dr. Orr observed that Defendant was generally clearly articulated and his speech was appropriate in rate and volume, but overall monotone. His language was " generally appropriate " in content and form with an " extensive vocabulary, " but " overly formal ", " often over-inclusive and disorganized " and " highly repetitive, with frequent scripted phrases. " Id., p. 9. By way of example, Dr. Orr noted that Defendant often used the phrases " Objectively speaking... "; " Mind you... "; " To be fair... " and " Moral of the story... " Id.
As to the second criterium, Dr. Orr found Defendant exhibited all four of the behaviors.
He engaged in “ occasional, subtle rocking of his upper torso while seated " and " scripted " and " repetitive " language. Id., pp. 7, 9. He appeared " fixated " on the routine or timing of breaks and procedures during the examination. Id., p. 10. He also demonstrated " rigidity " in his thinking and behavior, perseverative ideation (wanting to know the results of his testing) and was highly interested in " circumscribed " topics, such as forensic psychology, intellectual topics and Murakami. Id., pp. 10, 17. She also noted he was " highly distracted " by sounds or activity occurring around him and frequently looked from side-to-side to monitor his periphery. Id., p. 9.
As a result of being easily distracted, he needed instructions repeated to him.
Defendant's neuropsychological profile revealed a " high average intellect at baseline " and his Full Scale IQ score was 119, which is in the 90th percentile for his age. Id., p. 10.
Cognitively, Defendant showed strong verbal abilities, abstract reasoning, memory, concept formation and reading skills. However, he displayed weakness in executive functioning, such as planning, cognitive flexibility, impulse control and organizational approach. He tended to perceive information in a piece-meal manner rather than look at the whole picture. Id., p. 11.
Ultimately, Dr. Orr found Defendant was " clearly a neurodivergent individual, manifesting all the social and behavioral features of [ASD]. " Id., p. 17. As noted, Defendant was assigned a Level 1 diagnosis without intellectual impairment, which is the least severe level.
Dr. Eileen Ryan, a board-certified psychiatrist retained by the defense team, agreed with Dr. Orr's ASD diagnosis after conducting a comprehensive forensic psychiatric examination of Defendant. Of note, she observed that Defendant " is highly intelligent and has a factual understanding of the proceedings against him, the penalty he is possibly facing, pleas, and the 6 Dr. Orr noted Defendant's social smiling was " inconsistent " and occurred in " unusual and incongruent contexts. " She also noted he did not display tearfulness, anxiety or anger.
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roles of courtroom personnel, etc. " Ryan Report, p. 33. She further noted there was " no evidence of a formal thought disorder or thought disorganization. " Id., p. 18.
IV. ANALYSIS
Relying on the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 1, 2, 6, 7 and 13 of the Idaho Constitution, Defendant seeks to have individuals diagnosed with ASD categorically exempt from the death penalty. He contends a categorical exemption is warranted for individuals with ASD because: 1) they are insufficiently culpable and execution would not satisfy the retributive and deterrent purposes of capital punishment; 2) execution of individuals with ASD is contrary to the evolving standards of decency, and; 3) death sentences for individuals with ASD are inherently unreliable due to their inability to present meaningful mitigation evidence. Alternatively, he argues removal of the death penalty as a sentencing option in his case is warranted due to the impact his ASD will have on his ability to present a meaningful defense, particularly given the intense media attention on his disability.
A. A Categorical Exemption from Capital Punishment For Individuals with ASD is Not Warranted.
The Eighth Amendment provides: " Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. " U.S. Const. amend. VIII. The United States Supreme Court has interpreted the Eighth Amendment to categorically prohibit the execution of three classes of individuals: 1) the intellectually disabled under Atkins v. Virginia, 536 U.S. 304, 311 (2002); 2) individuals who commit murder while before the age of 18 under Roper v. Simmons, 543 U.S. 551, 574 (2005), and; 3) individuals incompetent to be executed under Ford v. Wainwright, 477 U.S. 399, 418 (1986).
At issue here is the first category. In Atkins, the Court held the " mentally retarded " (now, " intellectually disabled ") must be categorically exempt from execution after finding that the cognitive and behavior deficiencies that drive an intellectual disability diagnosis negate the penological purposes served by the death penalty and give rise to a " special risk " that the death penalty will be wrongfully imposed. 536 U.S. at 318-21. In addition, the Court found that a 7 While Defendant cites to the Idaho Constitution as a basis for his motion, he has not provided any argument or authority as to why the Idaho Constitution should apply any broader than similar provisions in the United States Constitution. See, e.g. State v. Donato, 135 Idaho 469, 472, 20 P.3d 5, 8 (2001).
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categorical exemption was consistent with society's contemporary standards of decency. Id. at 315-16.
No court has ever found ASD to be a categorically death-disqualifying diagnosis.
However, Defendant argues ASD is the functional equivalent of an intellectual disability and, therefore, the rationale underpinning Atkins applies with equal force to individuals with ASD. He further argues that categorically excluding individuals with ASD from capital punishment is consistent with society's prevailing standards of decency. The State responds that a categorical exemption from the death penalty is only available under the law to those with intellectual disabilities, the definition of which ASD fails to satisfy. It further disputes that there is any national consensus supporting Defendant's claim.
The State is correct. First, intellectual impairment a hallmark of an intellectual disability is not present in the diagnostic criteria of ASD and no court has ever found the two to be equivalent. Second, Defendant has not presented any evidence of a national consensus as to whether the death penalty is a disproportionate punishment for individuals with ASD.
1. ASD is not equivalent to an intellectual disability for purposes of death penalty exemption.
Capital punishment must be limited to those offenders who commit " a narrow category of the most serious crimes " and whose extreme culpability makes them " the most deserving of execution. " Atkins, 536 U.S. at 319. In considering whether intellectually disabled persons are " categorically less culpable than the average criminal, " the Atkins court relied on clinical definitions of an intellectual disability offered by the American Association on Mental Retardation and the American Psychiatric Association. Id. at 308, n. 3, 318.8 Both defined the condition based on the presence of two criteria: 1) subaverage intellectual function, and; 2) significant limitations in adaptive skills manifesting prior age 18. Based on this criteria, the Court found the intellectually disabled were categorically less culpable for their crimes, noting:
[C] linical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18.
8 In referencing the clinical definitions of an intellectual disability, the Atkins court did not adopt these definitions or otherwise offer any procedural or substantive guidelines for determining whether a person is intellectually disabled.
Shoop v. Hill, 586 U.S. 45, 49 (2019) (" Atkins gave no comprehensive definition of ' mental retardation ' for Eighth Amendment purposes. "). Rather, it tasked the states with developing their own mechanism for enforcing the restriction. 536 U.S. at 318. Idaho did so through the passage of I.C. § 19-2515A, discussed infra.
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Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. 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. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders.
Id. at 318.
Based on these deficiencies, the Court found two independent reasons to categorically exclude the intellectually disabled from the death penalty-both of which the Court found were " consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. " Id. at 318. First, the reduced culpability of the intellectually disabled undermined the twin justifications underpinning the death penalty-retribution and deterrence of capital crimes. Id. at 318-19. As to retribution, the Court reasoned that if the culpability of the average murderer is insufficient to justify the imposition of death, " the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. " Id. As to deterrence, the Court reasoned that the same cognitive and behavioral impairments that render mentally disabled offenders less culpable also render them less likely to appreciate the consequences of their conduct and control their behavior. Id. at 320.
Second, the Court found that the reduced capability of intellectually disabled offenders gave risk to an unacceptable risk that the death penalty could not be reliably imposed. Id. at 320-
21. Namely, the Court found that, in the aggregate, intellectually disabled offenders faced a special risk of wrongful execution because they: 1) are more susceptible to false confessions; 2) less able to " make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors "; 3) " may be less able to give meaningful assistance to their counsel "; 4) " are typically poor witnesses, " and; 5) “ their demeanor may create an unwarranted impression of lack of remorse for their crimes. " Id. Further, the Court found that " reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury. " Id.
Relying on the diagnostic criteria set forth in the DSM-IV, various publications and Dr.
Orr's evaluative report, Defendant argues that individuals with ASD, himself included, exhibit 7
similar adaptive impairments to those with an intellectual disability and, consequently, the same justifications underlying the Atkins exemption should apply to defendants with ASD. This is an apple-to-oranges comparison, however. While intellectually disabled and ASD individuals may share some of the same adaptive impairments, the intellectual deficit an essential feature of an intellectual disability is not a diagnostic element of ASD.
As noted in Atkins, an intellectual disability is based on deficits in both intellectual function and adaptive function. 536 U.S. at 308, n. 3, 318; see also, Hall v. Florida, 572 U.S.
701, 710 (2014) (noting that the " defining characteristic of intellectual disability " in the medical community is the " existence of concurrent deficits in intellectual and adaptive functioning. ") (emphasis added). While Atkins did not set out a comprehensive definition of an intellectual deficit, it did provide guidance, noting that prevailing medical authorities required " significantly subaverage intellectual functioning. " 536 U.S. at 308, n. 3. To this end, the Court noted that the medical community typically considered “ the cutoff IQ score of the intellectual function prong of the mental retardation definition " to be between 70 and 75 and lower. Id. at 308, n. 5.
Under Atkins and its progeny, it is th