Crime Fix with Angenette Levy - Bryan Kohberger's Possible Execution at Center of Idaho Murders Legal Battle

Episode Date: November 8, 2024

Bryan Kohberger's lawyers are asking the new judge presiding over his quadruple homicide case in Ada County to strike the death penalty as a possible punishment. Kohberger is accused of murdering four University of Idaho students in a home near campus in Moscow in November 2022. His lawyers say the death penalty is cruel and unusual punishment which violates his Eighth Amendment rights. Law&Crime's Angenette Levy looks at a recent hearing where prosecutors and defense attorneys argued over the request in this episode of Crime Fix — a daily show covering the biggest stories in crime.PLEASE SUPPORT THE SHOW: Download the FREE Upside App at https://upside.app.link/lctakeover to get an extra 25 cents back for every gallon on your first tank of gas.Host:Angenette Levy  https://twitter.com/Angenette5Guest:Michael LasherCRIME FIX PRODUCTION:Head of Social Media, YouTube - Bobby SzokeSocial Media Management - Vanessa BeinVideo Editing - Daniel CamachoGuest Booking - Alyssa Fisher & Diane KayeSTAY UP-TO-DATE WITH THE LAW&CRIME NETWORK:Watch Law&Crime Network on YouTubeTV: https://bit.ly/3td2e3yWhere To Watch Law&Crime Network: https://bit.ly/3akxLK5Sign Up For Law&Crime's Daily Newsletter: https://bit.ly/LawandCrimeNewsletterRead Fascinating Articles From Law&Crime Network: https://bit.ly/3td2IqoLAW&CRIME NETWORK SOCIAL MEDIA:Instagram: https://www.instagram.com/lawandcrime/Twitter: https://twitter.com/LawCrimeNetworkFacebook: https://www.facebook.com/lawandcrimeTwitch: https://www.twitch.tv/lawandcrimenetworkSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Wondery Plus subscribers can binge all episodes of this law and crimes series ad-free right now. Join Wondery Plus in the Wondery app, Apple Podcasts, or Spotify. When somebody sits on death row and there's no real means of executing them, that is dehumanizing to that person. Brian Koberger's lawyers are pulling out all of the stops as they try to convince the new judge in his case to remove the death penalty as a possible punishment, and the state is pushing back. So there really is just no evidence whatsoever to suggest that Idaho can't do this, and certainly not that it can't do this decades from now.

Welcome to Crime Fix. I'm Anjanette Levi. Brian Koberger was back in court in Ada County, Idaho, where he is scheduled to go on trial next August for the murders of four University of Idaho students. Koberger won his fight to move the trial out of Latah County to Ada County, which is in the Boise, Idaho area. He said he couldn't get a fair shake in Latah County. Now Koberger is in a new county with a new judge. His name is Stephen Hippler, and he seems like a no-nonsense judge. And the big issue on the table right now is whether the jury will be asked to consider the death penalty when Koberger's trial starts. Prosecutors are seeking the death penalty against Koberger for the murders of Maddie Mogan, Kaylee Gonsalves,

Ethan Chapin, and Zanna Kernodle. The four college students were stabbed to death, some as they slept, in the home on King Road off campus nearly two years ago. It's a horrific crime that shook the small, tight-knit town of Moscow, Idaho. But Koberger is taking the case to trial, and his attorneys have said he is innocent. Koberger argues the death penalty violates the Eighth Amendment. It's cruel and unusual punishment, particularly lethal injection. But in Idaho, it's worse, Koberger argues, because if the Department of Corrections can't get the drugs used to carry out an execution, the firing squad is now an option. The family of Kaylee Gonsalves specifically supports the use of the firing squad.

Her family has been vocal about that. To help make his argument, Koberger enlisted the help of Dr. Barbara Wolfe. She's a forensic pathologist who analyzed evidence in O.J. Simpson's double homicide case in the 1990s. Wolfe had signed an affidavit for Koberger's defense saying death by firing squad could be painful and it could cause a lot of suffering. The affidavit says, the intended target in an execution by firing squad is the heart of the condemned individual. Assuming that the shooters are competent marksmen, the condemned individual will be shot in the chest. The bullet will cause injuries to the heart, large blood vessels, bones, and possibly the lungs.

The mechanism of death will be shock resulting from bleeding due to damage to these organs. Dr. Wolfe said if the shooter doesn't strike the heart or a large blood vessel, the condemned person may slowly bleed to death. The defense wanted Dr. Wolfe to testify, but Judge Hippler said, nah, I have her affidavit. I don't need to hear her testimony. I want to tell you about the sponsor of today's Law and Crime YouTube takeover. It is Upside. Upside is a great free app that will give you cash back on gas and groceries. The other day, I used Upside when I went to Dunkin' Donuts for a tea. I claimed an offer for Dunkin' on the app and paid as usual using a card and followed the steps on the app and I got cash back.

It's really, really easy. You can use Upside at places like Shell, Exxon, Mobile, 7-Eleven, Taco Bell, Chipotle, and that is just to name a few. To find out how much you could earn, click the link in the description to download Upside or scan the QR code on your screen and use our promo code LC TAKEOVER and get an extra 25 cents back on every gallon on your first tank of gas. That's promo code LC TAKEOVER for extra cash back. At first, Brian Koberger's lawyer, Ann Taylor, said Idaho doesn't have a method of execution currently. She was quickly corrected. We think that the court ought to strike the death penalty in this case and not allow the case to go forward as a death penalty case because Idaho does not have a current means of executing anybody. When somebody sits on death row

and there's no real means of executing them, that is dehumanizing to that person. That's similar. You say there's no means. Under Idaho law, the method of execution is lethal injection and if unavailable, then the firing squad. You rely significantly on the idea that lethal injection is not available based upon the quote unquote botched execution of Mr. Creech. It seems to me that was a particularized incident wherein Mr. Creech, the execution hadn't even begun yet in the sense that they couldn't locate a vein. I don't see how that issue is universal.

Governor, I would agree that Mr. Creech's, the situation that happened to him was unique to him. I don't think he's the only person that has ever had that happen. I'm not in the state of Idaho, but I think that that's happened before when the means of execution couldn't be employed at the time. Thomas Creech is a serial killer whose execution was botched earlier this year. His execution is currently on hold. Ann Taylor then discussed the option of using the firing squad as an alternative to lethal injection. The firing squad ended up on the books because

of the difficulty obtaining the drugs to kill somebody. That's why the firing squad came back. Idaho brings it back in 2023. They bring it back because it's not reliable to believe they're always going to be able to get the chemicals to execute somebody. And that's the real problem here. The firing squad hasn't been funded well enough to be built. I'm building it right now, as I recall from the media at least that the construction is actually underway but I may be wrong about that. Well I haven't talked to the director of the Department of Corrections and that's probably who I would take my word from if that's actually happening right now. I think there's some additional problems with the firing squad though. I think there's some additional problems with the firing squad, though. I think there's

some problems with the way our statute lays it out, too. Judge Hippler made a point. First, Koberger would have to be actually convicted for a jury to consider the death penalty in the first place. Second, if the jury chose death as an option, the appeals process would take decades. But the reality is, is if he is convicted, we know it's going to be a decade plus before that sentence would be carried out. And who knows what the methods may be then. And, you know, I think that's part of why you're saying you shouldn't have to comply with Buckwell. But it seems to me that that same rationale then applies to why I should even consider this motion. Why wouldn't we wait until that time frame to see what the current methods are? Who knows what technologically is going to be available at that time? I definitely hear what the court's

saying. I would come back to saying that we're not in the place where he's challenging the methods that's about to be employed. We are decades away from that, if that were to even happen. But what I'm saying is I don't believe that our Constitution allows for us to move forward and make him sit on death row for years and years and years. And the way Idaho is doing it right now isn't really working. It's not a realistic option. The defense is always against the death penalty. This is their job. And most defense attorneys are just morally and philosophically opposed to the death penalty. It was then the prosecution's turn to argue.

What I'm hearing from the defense is they just have this kind of like vague Eighth Amendment assertion of maybe it's kind of the anxiety, but kind of not knowing how you're going to be executed. Well, that's not how the law works. There's an established framework of how you can make an Eighth Amendment method of execution claim. And Bucklew, the court specifically said, I'm quoting here, identifying an available alternative is a requirement of all and all is emphasized in the decision. All Eighth Amendment methods of execution claims. You can't get around that by just saying, well, but I'm making a slightly different kind of claim. It's not a method of execution. It's a means of execution claim. That just doesn't work. That's not how the law operates. The prosecution and Judge Hippler noted that there is case law in Idaho that allows a condemned person to actually

choose a method of execution. They haven't even suggested, even today, an argument what a proper alternative would be, which also gets back to the rightness issue, which is we don't know decades from now what an alternative might be. Maybe they'll have a better argument decades from now on the method of execution because maybe there will be a better method. And that gets to the final point I want to bring up, which is the remedy here. They're asking that the death penalty be struck because these methods are unconstitutional, but that's not how it works. If you show that one method is unconstitutional,

part of the reason you have to present a viable, readily implemented alternative is so that the state can then use that method for the execution. You don't get to, at the beginning, short circuit the whole thing and say death is off the table because the current method is unconstitutional. As I said before, the method could change. And so if they came in and they had evidence and they could show that

there was another method that's not lethal injection, that's not firing squad, that severely or significantly reduces the pain and it's readily implemented, the answer isn't to strike it completely, it's to say, okay, you can move forward with the trial. We can see if he's sentenced to death, but you can't use those two methods to do it. I want to bring in Michael Lasher. He is a death penalty attorney who practices both in Nevada and California. Michael, thanks so much for coming on. The arguments have been very interesting here. The defense is saying, you know, the firing squad and even execution by lethal injection

are both violations of the Eighth Amendment, the Eighth Amendment rights of Brian Koberger or anybody else. They say it's cruel and unusual punishment. The state says, this is all premature. You know, this is premature. If he's even convicted and there's an execution, it's going to be decades down the line. Your thoughts first on the defense's argument. Thank you so much. And thanks for having me. I really appreciate it.

So, you know, it's a fairly standard argument for the defense to be making in these cases. And kind of the legal landscape was described relatively recently by the United States Supreme Court in a case called Glossop v. Gross from 2015. And, you know, most relevant here for the Idaho case is that they held the United States Supreme Court in a 5-4 decision that midazolam, which is used to kind of put the inmates to sleep in a lethal injection situation, was constitutional. But it kind of articulated again the concept of cruel and unusual punishment under the Eighth Amendment. And so the problem in the Koberger case is that although they have lethal injection on the books, the state announced prior to another execution, they were having trouble sourcing the lethal injection drugs. This is a really common problem that states face using lethal injection. So in Idaho, very recently, just a few years ago,

because of this very problem, they amended their statute and now they allow firing squad as a possible punishment. And so the defense arguments on that are that under the Eighth Amendment, it's cruel and unusual. And so those are two separate prongs of the eighth amendment and they defense argues that it's unusual because it's rarely used it's literally rarely used so since 1960 there have been only four firing squad executions all in Utah. The most recent was in 2010, a man named Gardner.

So that's one aspect of the Eighth Amendment unusual. Also, only five states allow firing squad executions out of the 28 states that have capital punishment. The other states are Mississippi, Oklahoma, Utah, and South Carolina. But like Utah, they only allow it when lethal injection is not available. So that's, you know, another aspect of why it's unusual. It's rare. Then the other side of the Eighth Amendment analysis is the cruelty argument. And the defense had the statement of a Dr. Wolf who indicated, and she's an MD, indicated that death is not instantaneous in case of firing squad, kind of contrary to popular belief. And in the time that you're conscious, there could be extreme

pain just based on the injuries. It's common sense. And she pointed to the 2010 execution of Gardner, who continued to move after he was struck by the bullets. So those are the two aspects of cruel and unusual. And that's what the defense is arguing. Can't get the drugs. You only have the firing squad. So the prosecution says, hey, this is premature. Yeah.

And I want to ask you about that. Yeah. So we have the defense argument, but the state says, you know, this is premature. So, you know, we're not even there yet. And this is the case that we filed. And this is what we're seeking. We have the right to seek the death penalty in this case. And we have these, you know, we have these aggravating factors.

And mitigators. Yeah. especially heinous atrocious and cruel and all of these different things that they cited so um your thoughts on their argument that this is premature because let's say he's convicted and that he is sentenced to death if that even happens it's not going to happen. Yeah. Yeah. And so the defense did file a number of motions to take death off the table. And one of them that you mentioned is attacking as vague the aggravators and mitigators. So in capital cases, there's two phases to the trial. There is the first phase where the jury decides beyond a reasonable doubt whether

the prosecution has proved the capital crimes. If they have, then you get to the sentencing phase and they weigh aggravators and mitigators and decide whether somebody will spend their life incarcerated or will be executed. So one set of motions went to, you know, heinous, atrocious and cruel is vague, da da da. The Eighth Amendment legal lethal injection, you know, went to that. Prosecution is arguing they're all premature, but in fact, arguably they're not because selecting what's called a death qualified jury is a very big process. It will drag the trial out very long, add to costs as well. Also studies show that a death qualified jury, that's one that would consider both punishments.

A death qualified jury is six times more likely to convict than a jury that wasn't death-qualified. So there are reasons to be litigating this right now as well, especially if the aggravators have not been adequately defined so that a jury could understand what it is they're supposed to weigh because of the vagueness of some of the aggravators. Do you see this as a heavy lift, though, for the defense? Because I would think that a judge would not be inclined to remove the death penalty from this case. But I could be wrong about that. i could see a judge saying this is how the indictment you know this is the indictment was for four counts of aggravated murder and a count of burglary and the prosecutor

decided to seek the death penalty and this is why they did it the defense is obviously you know they're doing their job they're fighting tooth and nail trying to get the death penalty removed that this is their job this is why they're absolutely. But is it a heavy lift? I mean, do you see them being successful here? No, it is a heavy lift. I mean, it's hard for me to opine whether they're going to be successful, but I agree. It is a heavy lift. You know, there's precedent to allow this. It's on the statute. But as you say, the defense is doing their job. They have to raise this so that if there's a conviction and a death sentence, then you could raise it on appeal. You know, there's a doctrine called exhaustion. And if you don't raise it in the trial court, you lose it in the appeal. So they're preserving the issue, so to speak, so that it could be raised later. But it's also putting the issue out there for the judge. And maybe it will, you know, it was a whole slate of defense motions. So maybe they'll get better language on the

instructions regarding the heinous, atrocious, and and cruel aggravator maybe they'll get something kind of more clear and tailored um uh so but i agree heavy lift yeah i think it probably is um but i i mean i think they make some valiant arguments i mean death is it's ugly it's an ugly horrible thing horrible thing. I mean, I, but you know, I can see the families in this case to arguing in the Gonsalves family has obviously said, look what happened to my daughter. I mean, this is a horrific case. Obviously, you know, we have to wait for the evidence to come in. It's a really terrible thing. Well, Michael, thank you so much for coming on. I really appreciate your time and your insight. Yeah, no, my pleasure. Thank you. And that's it for this episode of Crime Fix. I'm Ann Jeanette Levy. Thanks so much for being with me. I'll see you back here next time.