Law&Crime Sidebar - ‘Murder Upon Murder’: Death Penalty Expert Weighs in on Bryan Kohberger Case

Episode Date: May 27, 2023

The judge overseeing Bryan Kohberger’s case told prosecutors they have 60 days to file their notice of intent to seek the death penalty for the accused Idaho student murderer if he’s convicted. Kohberger stands accused of stabbing four University of Idaho students to death in November 2022. The Law&Crime Network’s Jesse Weber discusses the likelihood of a death sentence for Kohberger if he’s found guilty with death penalty expert 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.

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Mr. Perger, do you understand the charge in count one? Yes. Do you understand the maximum penalty? Yes. Do you understand the charge in count one? to murder in the first degree. Yes.

If Brian Coburger is convicted of quadruple murder, will he be put to death? Capital Punishment Expert Professor Jules Epstein explains what we can expect. Welcome to Sidebar, presented by law and crime. I'm Jesse Weber. So as we continue to analyze and study the case of accused murderer Brian Coburger, we want to focus on the potentiality of him facing the death penalty. It's a big topping point in this case because, after all, he's going to be facing trial for the brutal murders of four young people. And in this case, could that result in capital punishment?

Because as of right now, prosecutors have a 60-day window to file notice if they are, in fact, pursuing the death penalty. So who better to talk about this than a very special guest? I'm joined right now by 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 is taught death penalty law nationally to judges and attorneys, and he continues to handle capital cases at the appellate and post-conviction stages. From all of us here at Sidebar, Professor, it is an honor to have you on. Thank you so much. Thank you for having me.

I want to get right into it. The prosecutors have this 60-day window. What considerations do you think that they're weighing right now? on whether or not to pursue the death penalty. So there are three. One is a purely legal one. Not every murder case is death penalty eligible. So Idaho, where this case will be tried, has a list of what are called aggravating factors.

Not just did I kill someone, but did I kill someone and was during a robbery? Or did I kill someone and that person was a police officer? or did I kill someone and I have killed before? So just purely legally, prosecutors go through this to say, do we have an aggravating factor? The second thing, I hate to say it, is what I'm going to call political, okay? How will it play in the community if we do? How will it play in the community if we don't? Prosecutors can be elected officials.

They have to worry about that. I'm not suggesting that's a proper consideration, but if you're talking about realistically, is it a consideration? You bet. Then there's a third consideration, and that's positioning yourself for advantage. If this case is tried as a death penalty case, the only people who could be on the jury are people who believe in the death penalty. If you're against the death penalty, you're automatically excluded. And studies have shown, and it makes some sense, that if you're pro-death penalty, you're more likely sort of pro-law enforcement, more likely to vote guilty.

So on the front end, the guilty or not guilty stage, the prosecutor gets an advantage by calling the case a death penalty case because of the smaller pool of jurors. So those to me are the, I should add, there's one other possible. I'll allow, I'll allow one more. I'll allow one more. I'm just kidding. And that is, are we doing more harm than good? Okay.

What do I mean? If this case is not capital, in other words, not a death penalty case, it can go to trial a lot sooner. The likelihood of it getting overturned on appeal is much lower. Once you put death into the mix, it takes a lot. a longer time to prepare the case, a longer time to try the case, and there are more appeals. And at least some prosecutors are aware of, that's not always the healthiest thing for the victim's families, because death penalty cases can go on and on and on.

Whether they're thinking that, I don't know, but that's certainly a reasonable thing for them to think. let's explore that a little bit because when I entered into this, I was thinking, okay, you have the brutal slings of four young people. It is a highly publicized case. This is a case that shocked the community. And you would think that it fits all of the criteria of a death penalty case. And I'll agree with you, politics comes into it. If this was a case that maybe didn't have this kind of attention, maybe we wouldn't see it because there are stabbings and their shootings all the time. So part of me thought, this is a no-brainer. They're definitely a to go to the death penalty route. You've given me pause now to think that if this delays that,

because this is very hard on the families, people want justice, the October date that they have set for the trial, if prosecutors come back and say, okay, we actually want to pursue the death penalty, how far out, to the best that you can surmise, how far out could this push the trial then? So the answer depends on the quality of the defense team, the resources they're given, and how much the judge will tolerate because to handle a death penalty case, you're really handling two cases at once. Is he guilty? Does he deserve death? And the second question is a hundred times more complicated than the first. You have to go back three generations and trace his family back. Was there a mental problem? Is there an alcohol problem? Is there some problem in their

lives. You want to talk to every school teacher. You want to learn every single thing about this person because the decision for the jury is not how terrible the crime was. That's a given. The question is given how terrible the crime was, does this person need to be killed or is there some other punishment? Obviously life in prison, multiple life sentences. That would meet all our needs. That's a great point you raised, because that's the defense's argument that would potentially come up if this is death penalty. We don't know that much about Koberger's life in terms of any kind of mental health

issues or how he behaved. I mean, it seems to me we're all wondering if he is convicted what a jury would do. I know you're kind of, you have your hands tied because you don't know all that mitigating evidence that defense could bring, but based on what you're seeing so far in the early reports of Coburger and what he's accused of doing, do you think that there's a strong likelihood if you were able to impanel a death qualified jury, jury members who, as you said, say, we can vote in favor of the death penalty if the facts in the law lead us there. Do you think that there's a strong likelihood he could be executed? Anytime there is a death, and here there are

multiple deaths, there is some likelihood that someone will be executed. At the same time, we have seen over the last decade that in terribly, terribly, terribly serious cases. And I don't want to make it sound like no murder is serious. All murders are serious. But when there's murder upon murder, that sometimes jurors have responded, this is a terribly damaged person. This is a person who snap. This is a person who acts. He said, we don't need it. So, I hate to do this to you. I'm going to disappoint you. I'm not going to say, oh, the odds are 40% or 72%.

I got you. Can't do that. It is a case. The more loss of life, the greater the risk. That's a simple equation. But that's the beginning of the calculus, not the end. That's totally fair. One of the things that I've been wondering is, I'm sure you saw Ryan Koeberger stood

styling during his arraignment. He chose not to enter a guilty plea. He had the court do it on his behalf. He has hired or he has retained death penalty qualified attorney. So he's preparing for the prosecution ultimately saying we want to pursue the death penalty. A part of me thinks that maybe he did that and stood silent because he's open to negotiations. And I'm curious how open the prosecution would be and say, listen, if he pleads guilty, we will take the death penalty off the table. It saves everyone the time, the heartache, the expense of a trial.

Do you think that might be what's happening behind the scenes? And maybe he was one of the reasons why he stood silent. So I'm not going to guess why, because there are many reasons a person would stay silent. Some people are numb at that stage. It's really scary to be in that position. Some people, the lawyers have said, you're better off saying nothing. And sometimes it's exactly what you're saying. as to would a prosecutor weigh that were back to that political question.

Some, there have been capital cases around the country where early on the defense says, we'll end this. We'll end this. We know our client is getting life. Our client will never be paroled. We're willing to end it. And some prosecutors say, great. Some prosecutors take some time and then come around to great.

And some say we're not interested and we're back to that community and community values and community pressures. The other thing is to make those discussions meaningful, it may in a weird way be too premature. So here's what I mean. On the one hand, end it soon, much less pain, let the families get on with healing. On the other hand, to make a convincing case of why you prosecutors should not seek the death penalty. Sometimes you need all that background information to then say, let me show you all my cards. Let me tell you a life history. Let me tell you what a jury is going to hear.

Then a prosecutor might say, you know what, that is bona fide mitigation, right? I don't know. I'm not going to comment about this defendant, but let's suppose his IQ is on the margin. I don't think that's the case here. My memory was he was in college, but some people can fake it till they make it. Grad student, yeah. But if that were an issue, a prosecutor might say, that's important to me. I don't know. There's also a culture from community to community. So in certain That's very true. As a lawyer, this prosecutor wants to hear from me early. No, this prosecutor doesn't want to hear from me until I have a substantial background

showing that I can make. That's a good point. I think Idaho, and I wanted to ask you about this, too, is very unique. Idaho isn't unique because it's been making news in terms of the death penalty. It seems that they are ready to reinstitute the firing squad. And one of the things that has come up is, did they decide to put the firing squad as a method of execution back on the table because of Koberger? And if Kovberger is ultimately convicted and sentenced to death, would he die by firing squad? I wanted to get your opinion on the firing squad as a method of execution and possible method of execution of Brian Koberk.

So over the last decade, there have been challenges around the country to different modes. of execution, whether it's electrocution, whether it's certain combinations of drugs or medications. Do they really, this sounds like a contradiction in terms, but do they kill the person as humanely as possible? Okay? And so there's been a ton of litigation. I suspect the firing squad issue was because of that kind of litigation. and sometimes it's hard to get the drugs.

It's not hard. I hate to say it, it's not hard to get bullets. If he were convicted and if he were sentenced to death, and if after all the years and years, if not decades of appeals, the death sentence were to be carried out, by that point they might be done with the firing squad. That may be their only one. If it's the law of that state, then that's what they would use.

Well, like you said, will wait and see. And if he's convicted and if he sent it to death, it'll be quite some time before he is ultimately executed. Professor Jules Epstein, I really enjoyed this conversation with you, incredibly informative. And there's a reason you are a leading expert on this subject matter. Thank you so much for taking the time. We really appreciate it. And thanks for what you're doing in terms of making law understandable. It's really important. We do the best we can. We do the best we can over here, but we appreciate that. Thank you so much. All right, everybody, that's all we have for you here on Sidebar. Thank you so much for joining us. Please subscribe on Apple Podcasts, Spotify, YouTube,

wherever you get your podcast. I'm Jesse Weber. Speak to you next time. Wondery Plus in the Wondery app, Apple Podcasts, or Spotify.