Law&Crime Sidebar - Idaho Student Murders: 5 Reasons Prosecutors Seek Death Penalty for Bryan Kohberger

Episode Date: June 29, 2023

Prosecutors announced they will seek the death penalty for Bryan Kohberger if he’s convicted of murdering four University of Idaho students. The state alleges Kohberger brutally stabbed the four college students to death in their off-campus home in November 2022 and left behind a knife sheath containing his DNA. The Law&Crime Network’s Jesse Weber breaks down five reasons why prosecutors are seeking the death penalty for the accused killer with Professor Jules Epstein, the director of advocacy programs at Temple University Beasley School of Law.LAW&CRIME SIDEBAR PRODUCTION:YouTube Management - Bobby SzokePodcasting - Sam GoldbergWriting & Video Editing - Michael DeiningerGuest Booking - Alyssa Fisher & Diane KayeSocial Media Management - Vanessa Bein & Kiera BronsonSUBSCRIBE TO OUR OTHER PODCASTS:Court JunkieObjectionsThey Walk Among AmericaDevil In The DormThe Disturbing TruthSpeaking FreelyLAW&CRIME NETWORK SOCIAL MEDIA:Instagram: https://www.instagram.com/lawandcrime/Twitter: https://twitter.com/LawCrimeNetworkFacebook: https://www.facebook.com/lawandcrimeTwitch: https://www.twitch.tv/lawandcrimenetworkTikTok: https://www.tiktok.com/@lawandcrimeSee 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 Wondry Plus in the Wondery app Apple Podcasts or Spotify. Agent Nate Russo returns in Oracle 3, Murder at the Grandview, the latest installment of the gripping Audible Original series. When a reunion at an abandoned island hotel turns deadly, Russo must untangle accident from murder. But beware, something sinister lurks in the grand. views shadows. Joshua Jackson delivers a bone-chilling performance in this supernatural thriller that

will keep you on the edge of your seat. Don't let your fears take hold of you as you dive into this addictive series. Love thrillers with a paranormal twist? The entire Oracle trilogy is available on Audible. Listen now on Audible. Idaho prosecutors have announced they intend to seek the death penalty against accused murderer Brian Coburger. Capital Punishment Expert Professor Jules Epstein comes on to discuss the five reasons the prosecution made this decision and what the defense may do to save the life of their client. Welcome to Sidebar, presented by Law and Crime. I'm Jesse Weber. There is a big development in the Brian Coburger case. This is the 28-year-old grad student accused of murdering four University of Idaho College students, 21-year-old Kaylee Gonzalez,

21-year-old Madison Mogan, 20-year-old Xaner-Kernodal, and 20-year-old Ethan Chapin. And Mr. Koberger has learned that the state will be seeking the death penalty against him. It is official. And prosecutors have listed out several reasons or aggravating factors for this. So let me bring back on to Sidebar a very special guest. Some would say a fan favorite. Professor Jules Epstein. Professor Epstein is the Edward D. Allbound Professor of Law and Director of Advocacy Programs

at Temple University Beasley School of Law. He has taught death penalty law nationally to judges and attorneys, and he continues to handle capital cases at the appellate and post-conviction stages. Professor Epstein, a pleasure to have you back here on Sidebar. Thank you so much. Thank you and honored to be here. Okay. You and I had talked about this the last time you were on, but now it is official.

They are seeking the death penalty. were you surprised at this announcement? Well, I'm not surprised in states that pursue the death penalty that a case like this would get what we call a notice. In other words, a statement of intent. I don't know this particular prosecutor. I don't know his personal values. He's an elected prosecutor in a state that accepts the death penalty.

And probably on a scale of terrible murders and all murders are terrible, this is at the high end. Yeah, absolutely. It's not only one of the most nationally recognized crimes that we've seen, but I have to imagine in that community, in Idaho, one of the worst that they have seen. The reason I asked if you were surprised is because the families of two of the victims, Kaylee Gonzalez and Madison Mogan, they reportedly were supportive of the death penalty against Koberger. In fact, there was a statement from Gonzalez's family. There is no one more deserving than the defendant in this case. We continue to pray for all the victim's families and appreciate all the support we have received.

however, Zana Kurnodal's mother opposed the death penalty. So I'm always curious about how prosecutors balance whether or not to go forward with the death penalty if some of the victim's families are in favor of it, but some are not. So legally, what the victim's family wants is not actually a prosecutor consideration. That's a moral consideration. That's a political consideration. It's a respect for people consideration but it's not that gee it's two out of three so i must or it's one out of three so i must not that's up to the prosecutor i am assuming that what happened is this that one of the families said we're not in favor and families can have many reasons for not being in favor morally

religiously or just that they've picked up from the news that if this is a death case it takes longer to get to trial, and there will be years and years and years longer of appeals. So in a let's get this put to bed, there are many motivations to oppose, but I'm assuming that the prosecutor was respectful to all the families, made the decision, and hopefully said to the family that doesn't want it, we respect your decision. We will not put you in a spot. where you have to go against your personal values and I will do everything I can to make this as painless or less painful as I can. Yeah, I hope that was the message that was communicated as eloquently as you, professor.

The reason I was so excited to have you on also with the fact that, you know, I just missed you. I liked having you on the last time. But the real reason is they listed five different aggravating factors in their notice, in their filing from the prosecutors. And I wanted to make sense of what this means. So I'd like to go over them with you. Number one, and this is all from the Idaho Code, the first reason they're seeking the death penalty

against Brian Koberger is they say at the time the murder was committed, the defendant also committed another murder. Now, I guess that's not a surprise that somebody who commits, who kills multiple people, this is a quadruple homicide, that this is prime for the death penalty. But there are cases, right, where you can, kill one person and still get the death penalty right absolutely it's just that this is one of a list of possible reasons to take this murder case as opposed to 50 others and say this one could or

should get the death penalty as we go down the other factors you'll see it doesn't matter if one person died or 12 people died there for a single case x factor could be an aggravating factor, it's just that the Idaho legislature determined. If we're going to step, if I may, if we're going to separate out some murder cases that don't deserve the death penalty from some that might. One good way to draw a line is, is it a single murder or a multiple? And if that were the only possible aggravating factor, and you only kill one person, it's terrible, but you're not what we call death eligible. If you kill two or three at the same time, you are.

Now, what we're going to learn is we go down the rest of the list. If you kill even one person, but some of these other factors are present, again, you may be what we call death eligible. So it's not they have to prove all of these. You have to prove only one, but they've listed five that they feel the evidence supports and that they feel they can fairly present to the jury. And remember, if I'm a prosecutor and I really want the death penalty, the more aggravating factors I can argue to the jury,

the more likely some at least will be found. And bearing some kind of odd change in this story, if this jury finds that he committed one of these murders, they're going to think he committed all of them because it all happened at the same time. There's not multiple killers. It's not spanned at different locations. They're going to think if they find him guilty, they're finding him guilty across for all four killings.

Now, this brings me to the second aggravating factor, which I find really interesting. It says the murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity. Isn't every murder heinous or cruel and showing a manifesting exceptional depravity? So this phrasing has been the subject litigation up to the United States Supreme Court over the last 30 or 40 years, okay? And the Supreme Court held some time ago that terms like that are actually sufficiently precise and sufficiently aggravating. So yes, every murder is terrible. Let me just tell you that Idaho has an attempt to say, what do we mean? by those words, okay?

Yeah. And here's what they say. Those murders were the actual commission of the murder was accompanied by such additional acts as to set it apart from the norm of first degree murders. You may be scratching your heads. So what are though? But then they say if it is- And what's a normal murder?

I mean, that's something that's something that's up, yeah. You've jumped ahead. So my point at the end of this is they're doing their best to layer words upon words upon words to give us a useful tool. But at the end of this, your definition of wicked is going to be your personal one. Mine is going to be my personal. It's not like a thermometer that we can say, oh, it's 100 degrees. So here's what they say.

Is it extremely wicked or shockingly evil? Is it outrageously wicked and vile? Cruel means designed to inflict a high degree of a pain with utter indifference to or even enjoyment of the suffering of others. So the last word cruel sort of makes sense, right? It's like death by slow torture. that's the added pain but if i fire one shot into one person's head to you that might be incredibly wicked and vile on the other hand most murders are like that so i guess it's not so wicked and vile they're leaving it up to 12 people to use their stomachs to make that decision

and i am assuming stabbing four young people to death would qualify as this Let me say it this way, unless a judge takes a pretrial challenge and says, this one for some reason doesn't make it, that's the jury's call. I also, I imagine that if this went to a jury and they convicted him and now they have to determine death, I can't imagine one juror saying, I don't think it was particularly heinous or a judge. I just can't see it. I just can't see it because I think one of the reasons this case got so much attention and the reason. we're also appalled by it, is thinking about what happened to these four people. But, um, the professor, I mean, do you see it the same way? Yeah, it's this coming into the house late at night, one by one in the bedroom. Other people are hearing him creeping around.

It's a pretty scary case. It's, it's horrible. Now, I do want to go into the other two factors that, um, there's one in particular that I find really, really curious. We'll get to that in a minute. Before we do, this one's interesting, and this is number four, this aggravating factor says that the murder was committed in the perpetration of or attempt to perpetrate arson, rape, robbery, burglary, kidnapping, or mayhem, and the defendant killed, intended to kill, or acted with reckless indifference to human life. I'm Alice Levine. And I'm Matt Ford.

And we're the hosts of Wondry's podcast, British Scandal. Pray, good fellow. Please join us in our latest. most gripping series What on earth are you doing? Well, speaking in Tudor English, you know, because we're doing Amberlin. So I thought it would help people get in the mood

and take them back to the course of King Henry the 8th. Now, if I know British scandal listeners and I think I know British scandal listeners, they will be reeled in with talk of treachery, sexual jealousy, backstabbing and treason. There is a lot of that to be fair, but at its heart, isn't it just a traditional girl meets king,

girl losers king kind of story? Yeah, with a divorce, a nation-altering religious reformation, and the show trial to begin all show trials. So listen to the story of Amblin now, follow British Scandal wherever you listen to podcasts and binge entire seasons early and ad-free on Wondry Plus. Now, he has also been charged for burglary. Why do we have this on the books? Why is it that if someone dies during the perpetration of? a felony, like a burglary or robbery, why is this important for the death penalty consideration? Again, the theory of U.S. death penalty law is that of all intentional murders, we have to have

some way to narrow the field for those who are death eligible. Because if every single person who killed got the death penalty, the U.S. Supreme Court would say the death penalty is too broadly applied. Right or wrong, many states, my state, Pennsylvania is similar, have said one factor to separate out the worst murders from the generally terrible, horrible murders is if there was something else evil, terrible criminal going on. So if I'm going out and raping and murdering or I'm going out and kidnapping and murdering, that should make me eligible for the death penalty over someone who just goes out and murders. I'm not saying that's my personal belief, but that's the idea of coming up with rules that supposedly it's like a funnel,

narrow who can get the death penalty. That makes sense. That makes sense. I agree. that if everything was death penalty qualified, they would say it's too broad. It's too outrageous. So that makes sense. Now, I want to get to the big one. This is one that the people I've spoken to, this is the main conversation starter.

It's number five. It's the last one. 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. In other words, this guy is so dangerous that we have to kill him.

And my goodness, how do they know that? How does the jury calculate that? Because that's one where I'm curious, well, maybe it was a situation where somebody only committed a murder one time because they were put in a really difficult spot or they killed their wife. That was a very specific situation. Is it the randomized nature of this? is it how many people he allegedly killed?

I mean, this one, this propensity to commit murder, I find so curious. What's your thoughts on this? So I don't know how Idaho has treated this. This is a big issue in Texas. They call it much more simply future dangerousness. And sometimes psychologists are brought in to say, we've assessed this person,

we've assessed their background. We look at it. It's all predictions, whether that's good science or looking, inside of a crystal ball, I will leave to another day to debate. The flip side, and it's somewhat ironic, is that this invites the defense to tell the jury how safe it is for all of us, including prison guards, to have someone like him in a prison, because there are prisons built exactly for people who are extraordinarily dangerous. Who just died? Ted Kaczynski, the Unabom, right?

He got like 13 life sentences. He was in a supermax prison. To my knowledge, Mr. Kaczynski didn't hurt anybody once he was in prison. So let's assume for a minute, right, that there really was a scientific test that could say Jules, not just has murdered, but he's like Hannibal Lecter. He's just going to keep going. Right. if we had that kind of a test, that would certainly be a rational consideration to be weighed against can we still protect our guards? Can we put them in a supermax? I'm not convinced that there is

a reliable predictor. And I can tell you, having met with people, tens, if not hundreds of people who are life sentence, murder, convicted people, that when they get 10 years in, 20 years in, 30 years in, they're different people. We are not threatened by them. It makes me wonder, something that you and I were talking off air before we came on, is if one of these factors is, let's say, weaker than the other, does the jury have to find all five? Do they have to find one? Do they have to find one? Do they have to find any in order to support the death penalty? Walk us through how this works because they might say, you know what, I don't think he's got

this propensity, but I think this murder was especially heinous. Walk us through how many factors they have to find and what the next step is in terms of voting in favor of death. Sure. So first of all, a jury is never told you must find an aggravator. It's you may, just like you may find somebody guilty. What would happen is here. They have a trial and assume he has found guilty.

Now they move to the penalty trial sort of phase two. Idaho law makes it clear the prosecutor can incorporate. They don't have to repeat. You say, hey, everybody, take the evidence you heard at our trial. And now that's part of the evidence at part two. So the jury will have heard the number of people killed and how they were killed and how terrible it was. And it was during a burglary in this. so a lot of the factual stuff will be there on the what we're calling future dangerousness they may call the psychologist who knows

the defense will put on mitigating factors anything that would argue for a sentence less than death maybe some mental problems you know who knows maybe some good deeds this guy has done who know by the way They might also, correct me, maybe account his past drug addiction, because I know that's a big part of his history as well. And that would be, so that's a funny thing because to many defense lawyers, that is a mitigating factor. You have to explain it, right? Because to some jurors, that makes you sound even worse, right? That's true. So you have to avoid what we call like splashback from that.

So here's what happens then. The jury has told this. The prosecutor is alleged five aggravating factors. Vote on number one. Unanimously, it's proved or it's not. Number two, unanimously proved or it's not. Number three, maybe they'll find five. Maybe they'll find four.

They have to find at least one to keep going. If they find none, then the process stops and he gets life. if they vote we find at least one and we're unanimous about it now they go back through the rest of the evidence and say all right individual juror by juror well i think his drug thing i don't want to call it an excuse it's not an excuse but it makes him not deserving the death penalty and juror number two might say i think there are three reasons juror number three might say i think there's not but then they vote and all 12 have to be united Now that we have at least one aggravating factor, okay, do we agree that this case calls for the death penalty? And that goes back to that standard that we talked about, and if you'll forgive me, shall be sentenced to death unless mitigating circumstances are found to be sufficiently compelling that the death penalty would be unjust. So each of the 12 is sort of doing their own unjust, not unjust. If all 12 vote death penalty is just, that's the death sentence. That is a very, you explained that incredibly well, that is very a formulaic way of listing it out.

But you and I also talked about that there could be other considerations, right? So there's the five aggravating factors. There could be actually the mitigating factors that are put forward by the defense. but there's other things that could come in or other things the jury can consider. Couldn't a juror wake up one day and say, I know this wasn't mentioned by the defense explicitly, but I look into Koberger's eyes

and I see somebody who's not deserving of the death penalty. Maybe they decide that's a reason. It wasn't listed out. And also, I wanted to mention to you this as well. I'll give you an opportunity to mention, like another mitigating factor they consider that wasn't listed by the defense. But it has come out this week that Koberger,

when he was 19 years old in 2014, he was arrested in charge with misdemeanor theft for stealing his sister's iPhone. The records indicated that he allegedly said to his father not to do anything stupid. His father had explained that a Coburger had suffered drug addiction at the time. Coburger didn't serve any jail time. There's no public record or there's no more details of the case. It's possible it was expunged or he entered into a rehabilitation program. But it just makes me wonder, would something like this come in?

It doesn't fit as one of those aggravating factors, but it's another. thing for the jury to hear. I'm curious, how much does the jury have to stay into that formula of these are the factors, these are the factors, or can they look at other things too and will other things be presented? So let's start first from the prosecution side. Idaho does not limit its prosecutors to only the listed aggravating factors. So they are allowed to present to any additional evidence that is relevant to supporting a sentence of death. Now, there are certain things they couldn't do. They couldn't put on, well, you're black or you're white or you're Democratic or your

Republican. Right, right, right. Thank goodness. Thank goodness. Thank goodness, exactly. But a prosecutor theoretically could say he's had been in trouble before, not an aggravating factor, but a listed one, but something they would say belongs on the aggravating side of the scale. The defense might take that same story and say, look, this guy has actually led a very

clean life. The only problem he ever had is he stole his sister's phone during the period of drug addiction. So either side might or might not deploy it. Either side could try and spin it. But it is, I never want to use the words free for all. But it is, there is a wide range of supplemental information the prosecutor may present. Mitigation, the United States Supreme Court has cautioned prosecutors and judges. Don't try and restrict it. There's some stuff that's way off topic, admittedly. But the idea is to give the jury every chance to consider a reason not to kill someone. Coburg has been in jail. Maybe he's been incredibly well-behaved in jail. Maybe he taught another inmate how to read. On the other hand, if he's been bad in jail,

right maybe that's something the prosecutor would grab so the the defense's job here and it's an interesting one because if they say he didn't do it but then they say okay well he you found that he did do it let me now change the conversation conversation has to be is this that person you need to kill and they will do what they can to try and make him a person not just his deed. And a person who has some good stuff and had some really bad stuff in their background, if I may just finish with this one thought. They want to make the jury feel he's not a demon seed child. In other words, that there's not some evil coursing through his blood that we can ever get, that he's a human. He did something, assuming he's guilty,

beyond terrible. That's a given. The death penalty issue is what do we do with him? It's, and one of the common things that I've heard when these are really bad cases, sometimes, and I wouldn't be surprised if we hear it from the defense, as they say, there's been so much loss of life, we don't need another loss of life. I've heard that before, too, Professor. I mean, that always feels like an argument appealing to the juror's emotions. I'll give you a quick minute to respond to that. So you'd have to really tease out in jury selection the particular beliefs of your jurors as to whether that's going to play well with them or seem like a cheap shot.

There are really sophisticated studies about what sways or doesn't sway a capital juror. If there is any showing of remorse on his part, that is often considered really important. If there is something that went way wrong in his life that he couldn't control, that can be real important. So too many factors, I will tell you, I just read in an Alabama death penalty case where I'm just sort of consulting on. the defense lawyer sort of said that almost tinting you'll be committing a crime because you're killing someone totally not a good rhetorical move really something that has to be careful i i i probably wouldn't make that argument unless i really knew from jury selection that that somebody else had said like we're questioning you as a

prospective juror and you said to me, you know, I take this death penalty stuff really seriously because there's too much death in this world. If you give me that signal, maybe I would consider reminding you of that. But even then, if you've already got that belief, I'm not sure I need to repeat it. And I think it might turn off a bunch of other jurors. By the way, for anybody listening, I will finish this out by saying, you know the one question that I did not ask the professor because it's an impossible question, what's the jury going to do? And the reason I didn't ask that is because I think we've seen time and time again, the worst cases that you can possibly see, the worst defendants, where the jury has come back and actually voted in favor of not the death penalty, but life in prison. It is so tough to predict what will happen. And there's a long time between now and this trial, actually don't believe it's going to start in October.

So there's a lot that could come out and a lot we'll see. But Professor Jules Epstein, it is a pleasure talking to you. You really lay this out in such a clear, methodical way. Thank you for explaining to me. Thank you for explaining it to the viewers and listeners. We really appreciate you having you on. And thank you. I just want to say this.

You know, this isn't a one-minute sound bite. You are giving your audience the time to do a deep dive into this. And that's a real gift to people everywhere. Thank you. We appreciate that. We want people to fully understand it and not do a two-minute sound bite, like you said, to try to get it because it's a complicated issue and a complicated case. Professor Epstein, thank you so much. Thank you. And that's all we have for you here on Sidebar, everybody. Thank you so much for joining us.

Please subscribe on Apple Podcast, Spotify, YouTube, wherever you get your podcast. I'm Jesse Weber. I'll speak to you next time. You can binge all episodes of this law and crime series ad free right now on Wondery Plus. Join Wondery Plus in the Wondery app, Apple Podcasts, or Spotify.