Court Filing
Electronically Filed 10/30/2024 10:41 AM Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court Anne Taylor Law, PLLC By: Jennifer Keyes, Deputy Clerk 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, MOTION TO STRIKE STATE’S V. NOTICE OF INTENT TO SEEK DEATH ON GROUNDS OF BRYAN C. KOHBERGER, MEANS OF EXECUTION Defendant. COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, hereby moves this Court, pursuant to the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution; Article I, Sections 1, 6, 7, 8 and 13 of the Idaho Constitution; I.C.R., Rs. 3, 5.1 and 7; and, I.C., §§ 18-4004, 19-1301-1308 and 1409, 1411 and 1418, and 19-2515 to Strike the State's MOTION TO STRIKE STATE'S NOTICE OF INTENT TO SEEK DEATH ON GROUNDS OF MEANS OF EXECUTION Page 1 Notice of Intent to Seek Death Penalty. This Motion is made on the grounds that upon a conviction and sentence of death, the process by which Mr. Kohberger would be put to death in Idaho violates the Eighth and Fourteenth Amendments to the United States Constitution as well as Article I, Sections 6 and 13 of the Idaho Constitution. Issues I. Constitutional limits on manner of execution II. The history of executions in Idaho III. Lethal Injection in Idaho is not viable IV. The Firing Squad is not and was never constitutional I. Proceeding with capital murder charges in this case is unconstitutional because executing Mr. Kohberger by means of lethal injection or a gunshot as conceived of by the Idaho Department of Corrections (IDOC) would violate his right to be free from cruel and unusual punishment under the Eighth Amendment and his right to due process under the Fourteenth Amendment of the United States Constitution. See Trop v. Dulles, 356 U.S. 86, 100 (1958); Gregg v. Georgia, 428 U.S. 153, 173 (1976); Estelle v. Gamble, 429 U.S. 97, 106 (1976). It would also violate his rights under Article I, Sections 6 and 13 of the Idaho Constitution. An execution procedure that involves “ the unnecessary and wanton infliction of pain ” violates the Eighth Amendment. Gregg, 428 U.S. at 173. The Eighth Amendment's prohibition is not static, but is responsive to “ evolving standards of decency " and " contemporary values concerning the infliction of a challenged sanction. ” Id. Execution by lethal injection constitutes cruel and unusual punishment. Furthermore, the Fourteenth Amendment guarantees that no person may be deprived of life, liberty, or property without due process of law. A violation of procedural due process requires MOTION TO STRIKE STATE'S NOTICE OF INTENT ΤΟ SEEK DEATH ON GROUNDS OF MEANS OF EXECUTION Page 2 a showing of: 1) a constitutionally protected interest in life, liberty, or property; 2) governmental deprivation of that right; and 3) constitutional inadequacy of challenged procedures effecting the deprivation. See Bank of Jackson Cty. v. Cherry, 980 F.2d 1362, 1366 (11th Cir. 1993). A prisoner sentenced to death has a constitutionally protected interest in life that is not extinguished by the conviction and death sentence. See Ohio Adult Parole Authority v. Woodward, 523 U.S. 272 (1998). The manner of execution is set by the legislature in Idaho. I.C. § 19-2716 was amended just last year. The new version of the statute is: (1) The punishment of death shall be inflicted by continuous the following methods: (a) Continuous, intravenous administration of a lethal quantity of a substance or substances approved by the director of the Idaho department of correction until death is pronounced by a coroner or a deputy coroner.; or (b) Firing squad. (2) Not later than five (5) days after the issuance of a death warrant, the director of the Idaho department of correction must determine, and certify by affidavit to the court that issued the death warrant, whether execution by lethal injection, as described in subsection (1) (a) of this section, is available. (3) If the director certifies that lethal injection is available, the method of execution shall be lethal injection. (4) If the director does not certify that lethal injection is available, fails to file a certification as required pursuant to subsection (2) of this section, or otherwise determines that lethal injection is unavailable, the method of execution shall be firing squad. (5) If a court holds that lethal injection is unconstitutional, on its face or as applied, or otherwise determines that firing squad is a constitutionally required method of execution, the method of execution shall be firing squad. (6) The director of the Idaho department of correction shall determine the procedures to be used in any execution. (7) The provisions of this section shall apply to all executions carried out on and after the effective date of this enactment, irrespective of the date sentence was imposed. MOTION TO STRIKE STATE'S NOTICE OF INTENT ΤΟ SEEK DEATH ON GROUNDS OF MEANS OF EXECUTION Page 3 SECTION 2. An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after July 1, 2023. The Idaho Supreme Court has ruled that the word “ any ” in what is now subsection (6) refers to each and every person to be executed as an individual, rather than a broad policy for all defendants. See, Pizzuto v. IDOC, 170 Idaho 94, 97 (2022). The Court held that because of the legal issues with the manner of execution, the director of the IDOC must provide each individual to be executed with the procedures that will be used in their case in advance of the execution so they may be reviewed and challenged. Id. at 98. Thus, one condemned to die in Idaho has no real way to know how they will be killed at least until the death warrant is issued. Still, as things stand, Idaho has no viable method for killing Mr. Kohberger. II. Up until 1978 in Idaho death was imposed by hanging. Kathy Hill, HANGED: A HISTORY OF IDAHO'S EXECUTIONS, 4 (2010). The actual structure of hanging was changed more than once because of the difficulty of getting necks to snap as desired leading to a lack of immediacy in the execution. The last man hanged by the people of Idaho was Raymond Snowden, on October 18, 1957. Hill, at 225. As Kathy Hill tells it: For the first time, prison officials would use their new execution chamber. Located on the second floor of Cell Block Five, next to death row, the room replaced the outside scaffold used for earlier prison hangings. Throughout the day, guards repeatedly tested the trap door to ensure all would be ready for Snowden. The sound of the door dropping reverberated through the cell block; guards would recall the prisoners were eerily quiet that evening. Around 11:45 p.m., prison guards arrived at Snowden's cell. They carried a backboard complete with arm, leg, and foot straps. Snowden balked at first, but with [the prison chaplain's] assurances, he allowed himself to be strapped in. They delivered him to the execution room and placed him in an upright position. The hangman's noose dangled directly above his head. MOTION TO STRIKE STATE'S NOTICE OF INTENT TO SEEK DEATH ON GROUNDS OF MEANS OF EXECUTION Page 4 Approximately ten people gathered in the observation room, among them Boise Police Chief Frank Demarest and Ada County Sheriff Pat McCarty, who had so deftly build the case against Snowden. Several newspaper reporters were also at the execution, but all declined to enter the observation room. With Snowden in place on the trap door, Prison Warden Lou Clapp asked if he had any final words. Snowden, calm and clear, replied, “ I do, but I don't know how to say it. " Clapp gave him a few more minutes, then placed a black hood over his head. He stepped back and the executioner, who received $ 600 for his trouble, stepped forward. He placed the noose around Snowden's neck, pushed the knot close to his spine, and pulled the trap door. The backboard veered a bit, scraping the side of the trap, but the deed was done. Snowden was pronounced dead at 12:20 a.m., October 18, 1957. Hill, at 235. Precisely why Idaho gave up on hanging has no simple explanation. Perhaps the guards telling stories of the sounds of the trap door being tested repeatedly in the presence of the doomed man-made people feel uncomfortable with the whole ordeal. Maybe it was the idea of strapping a man onto a board and wheeling him off to kill him with a bag over his face. Whatever it was- the how is relatively simple. In 1978, as Idaho's legislature tried to devise ways to kill people that would satisfy the demands of the United States Supreme Court, Senators Jim Risch and Mike Black joined forces to amend the law to require lethal injection. Hill, at 4. The senators both claimed lethal injection would be more “ humane. ” Senate Judiciary and Rules Committee, Minutes February 16, 1978 (Exhibit A). When the bill was proposed to the House Judiciary, Rules and Administration Committee: Warden Anderson appeared in support of the bill, by indicating that it was the desire of the Board of Corrections to take the circus atmosphere out of executions. He said there are weird people who show up at executions and contribute to the circus atmosphere. Minutes, February 27, 1978. (Exhibit B). It is unclear where Warden Anderson was encountering these circus-like executions, given that the last one in 1957 as describe above was far from it. However, the new “ humane ” method of killing people immediately ran into problems. MOTION TO STRIKE STATE'S NOTICE OF INTENT TO SEEK DEATH ON GROUNDS OF MEANS OF EXECUTION Page 5 Bona Miller of the Department of Corrections explained to the House Judiciary, Rules and Administration Committee just four years later, “ a medical prescription is required to obtain the lethal injection, then a medical doctor or a medically trained person must administer the injection. The prison officials have been unable to find a medically trained person who would carry out such injections. ” Minutes, February 19, 1982. (Exhibit C). During that legislative session, the Department of Corrections and the Idaho Medical Association tried to reach a compromise so that killing could happen. Judiciary, Rules & Administration Committee, Minutes, March 11, 1982. (Exhibit D). The firing squad was included essentially as a backup, and one the drafter of the bill thought was likely unlawful. Id. This was the original birth of the firing squad. In 1982, I.C. § 19-2716 permitted the director to use the firing squad whenever lethal injection was “ impractical. ” The only directive provided for the firing squad was that the director would decides its members. The original firing squad, however, never got off a shot. In 2009, the firing squad was repealed, with a Statement of Purpose that read: ... This proposed legislation will further amend Idaho Code Section 19-2716 to eliminate death by firing squad as an alternative method of execution. The elimination of the alternative method of death by firing squad is deemed appropriate in light of the United States Supreme Courts [sic] opinion in Baze v. Rees, 128 S.Ct. 1520 (2008), in which the Court concluded that a humane lethal injection protocol does not constitute cruel and unusual punishment. There is no similar Supreme Court authority addressing where the firing squad, as a method of execution, would constitute cruel and unusual punishment in violation of the Eighth Amendment. In addition, Idaho is one of only two states that have the firing squad as a method of execution; the rarity of this method of execution could form the basis of an Eighth Amendment claim. Elimination of the firing squad option will allow the state to avoid such challenge. Statement of Purpose, RS18536 (2009) (Exhibit E). This reasoning was taken from the statements of then deputy attorney general Bill von Tagen and senior deputy attorney general LaMont Anderson. House Judiciary, Rules and Administration, Minutes Feb. 11, 2009 (Exhibit F); House Judiciary, Rules and Administration, Minutes Mar. 3, 2009 (Exhibit G). MOTION TO STRIKE STATE'S NOTICE OF INTENT TO SEEK DEATH ON GROUNDS OF MEANS OF EXECUTION Page 6 This brings us up to this year, when LaMont Anderson, now Lead Deputy Attorney General for the Capital Litigation Unit, returned to the legislature to ask for the firing squad back. Senate Judiciary & Rules Committee, Minutes, Mar. 13, 2023. (available at https://legislature.idaho.gov/wpcontent / uploads / sessioninfo / 2023 / standingcommittees / 230313_sj & r_0100PM-Minutes.pdf). Mr. Anderson told the Senate Judiciary and Rule Committee that the majority opinion in Glossip v. Gross, 576 U.S. 863 (2015), found that shooting people was “ relatively quick and painless " and that there was an expert opinion in 1983 that said the same thing. Id. The majority in Glossip never referred to the firing squad as “ quick and painless " except when it quoted Justice Sotomayor's dissent. Id. at 880 (quoting SOTOMAYOR, J. dissenting, at 977). It seems clear from the opinion in Glossip that the majority was simply pointing out that the dissent's view that all methods for execution prior to lethal injection had become unconstitutional was a distinction without a difference from the view that it was time to simply stop killing people. Id. And no amount of Google can uncover any experts from 1983 that thought shooting people was humane. In fact, Colman McCarthy wrote an article called “ Killing with Kindness " in 1983 that would seem to dispel the idea that that was the heyday of firing squads. THE WASHINGTON POST (June 11, 1983) (available at https://www.washingtonpost.com/archive/politics/1983/06/11/killing-with-kindness/b96cde68- e284-42b9-9e4d-1a3d6e94a0b5 /). III. Idaho does not have the ability to kill a man with an injection at this point in time and likely will not in the future. This is because of three things: 1. A lack of trained medical personnel willing to take life, 2. The difficulty in finding drugs that kill without creating unnecessary pain and 3. MOTION TO STRIKE STATE'S NOTICE OF INTENT ΤΟ SEEK DEATH ON GROUNDS OF MEANS OF EXECUTION Page 7 The difficulty of purchasing those drugs that have been held to be appropriate for killing a person by the courts. The United States Constitution prohibits deliberate indifference to the known risks associated with a particular method of execution. Cf. Estelle v. Gamble, 429 U.S. 97, 106 (1976). There are a number of known risks associated with the lethal injection method of execution, and the State of Idaho has typically failed to take adequate measures to ensure against those risks. The Eighth Amendment safeguards nothing less than a human being's dignity and prohibits methods of execution that involve the unnecessary and wanton infliction of pain. Under Trop v. Dulles, 356 U.S. 86, 100 (1958), to comply with constitutional requirements, the State must minimize the risk of unnecessary pain and suffering by taking all feasible measures to reduce the risk of error associated with the administration of capital punishment. Glass v. Louisiana, 471 U.S. 1080, 1086 (1985); Campbell v. Wood, 18 F.3d 662, 709-11 (9th Cir. 1994) (Reinhardt, J., dissenting); see also Zant v. Stephens, 462 U.S. 862, 884-85 (1985) (state must minimize risks of mistakes in administering capital punishment); Eddings v. Oklahoma, 455 U.S. 104, 118 (O'Connor, J., concurring). The most recent document detailing how the director would kill a man is Idaho Department of Correction, Execution Chemicals Preparation and Administration (last updated March 30, 2021). This particular set up was intended for Mr. Pizzuto. See, Ruth Brown, Idaho Inmate Pizzuto's Execution Canceled, State Doesn't Have Lethal Injection Chemicals, IDAHO REPORTS (Nov. 30, 2022) (available at https://idahocapitalsun.com/2022/11/30/idaho-inmate-pizzutosexecution-canceled-state-doesnt-have-lethal-injection-chemicals /). This Court should review the procedures adopted in 2021 that IDOC could not implement. See Idaho Dept. of Correction, Standard Operating Procedure: Execution Procedures (approved Mar. 30, 2021) (Exhibit H); and Idaho Dept. of Correction, Execution Chemicals Preparation and MOTION TO STRIKE STATE'S NOTICE OF INTENT ΤΟ SEEK DEATH ON GROUNDS OF MEANS OF EXECUTION Page 8 Administration (last updated Mar. 30, 2021) (Exhibit I). It consisted of four different possible methods of death. 1. Method 1 uses Sodium Pentothal to put the man to sleep, and then paralyzes him using Pancuronium Bromide, and finally burns him alive from within via Potassium Chloride. Method 2 uses pentobarbital to put the man to sleep and then also murders them with pancuronium bromide and potassium chloride. a. There is no dispute in the scientific and legal community that potassium chloride and pancuronium bromide are extremely painful if a person receives them while conscious. In Baze v. Rees, the State conceded that, “ failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride. ” 553 U.S. 35, 53, 128 S.Ct. 1520, 1533 (2004). Pancuronium bromide paralyzes the chest wall muscles and diaphragm so that the person can no longer breathe. Id. at 44, 527. Potassium chloride causes a cardiac arrhythmia which results in ineffective pumping of blood by the heart and, ultimately, cardiac arrest. Id. In Baze, the Court found that " proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs. " Id. The potential pain from the second and third drugs was also acknowledged in the Court's opinion in Glossip v. Gross. 135 S.Ct. 2726, 2740, 192 L.Ed.2d 761 (2015). Additionally, during oral arguments in Glossip, Justice Kagan likened the pain from potassium chloride to being burned alive from the inside. R. Barnes and M. Berman, Supreme Court Justices Hotly Debate the Use of a Lethal Injection Drug, The Washington Post, April 29, 2015. Scientific MOTION TO STRIKE STATE'S NOTICE OF INTENT ΤΟ SEEK DEATH ON GROUNDS OF MEANS OF EXECUTION Page 9 evidence as well as eyewitness accounts from executions establish that that death by lethal injection can be an extraordinarily painful death. See Id. 2. Method 3 simply relies on injecting a lot of Sodium Pentothal. 3. Method 4 is the same idea but relies on injecting Pentoarbital instead. 4. Problematically for all these methods: Sodium pentothal is no longer available for killing people. Pam Belluck, What's in a Lethal Injection Cocktail?, THE NEW YORK TIMES (2011) available at https://www.nytimes.com/2011/04/10/weekinreview/10injection.html. The same became true of pentobarbital shortly thereafter. Lincoln Caplan, The End of the Open Market for Lethal Injection Drugs, THE NEW YORKER (2016) available at https://www.newyorker.com/news/news-desk/the-end-of-the-open-market-for-lethalinjection-drugs. The upshot is that lethal injection does not exist in Idaho at this point in time. The director acknowledged as much in his letter to the Board of Correction in November 2022. (Exhibit J). Indeed, he