Should death penalty be option in Kohberger case? Judge considers issue

(Idaho Statesman) — Bryan Kohberger and his attorneys were back in a Boise courtroom Thursday in their push to drop the death penalty as a possible sentence with murder convictions in the killing of four University of Idaho students at trial next summer.

After the hours-long arguments on the appropriateness of the death penalty and whether 29-year-old Kohberger — if convicted — should face it, Ada County Judge Steven Hippler, of Idaho’s 4th Judicial District, took the prosecution and defenses opposing opinions under advisement and said he’d issued written rulings at a later date.

However, throughout the hearing, which was attended by roughly two dozen people, Hipper interjected as both sides presented arguments, particularly challenging Kohberger’s attorneys, Anne Taylor and Elisa Massoth, on the merits of their arguments and why he’d consider removing the death penalty when both the Idaho and U.S. supreme courts have established it as an option under the law.

Hippler also questioned why he’d even make any decision at this point given the length of capital cases — which typically include drawn-out appeals, meaning it would likely be years before Kohberger could be executed.

“The reality 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,” Hippler said from the bench of one of Ada County’s largest courtroom.” “Why wouldn’t we wait until that time frame to see what the current methods are? Who knows what, what technology is going to be available at that time?”

Idaho, one of 27 U.S. states that maintain capital punishment, will seek to place the defendant on death row if jurors find him guilty beyond a reasonable doubt for the violent crime. Idaho’s approved execution methods include lethal injection and death by firing squad.

Kohberger’s defense argues that the death penalty is arbitrary, inappropriate under modern standards and unconstitutional. Prosecutors counter it is the law of the land in Idaho, and constitutionally defensible based upon precedent in both the state and U.S. supreme courts.

Hippler scheduled the four-hour hearing Thursday for oral arguments.

Despite arguments from Kohberger’s attorneys, Hippler denied the defense’s request to allow two experts — U of I law professor Aliza Cover and Dr. Barbara Wolf, a medical examiner licensed in Florida — to testify Thursday. Hippler said Cover’s law review article focused on narrowing the use of the death penalty in Idaho and a declaration submitted by Wolf would be sufficient enough.

Three hours into the hearing, and following a flurry of varying motions aimed at removing the death penalty in Kohberger’s closely watched case, the court broke for lunch.

“My schedule is already shot to hell,” Hippler quipped earlier in the morning as one of the planned discussions ran long.

By 1:45 p.m. the court adjourned for the day.

“I will take the matters under advisement and issue written opinions forthwith,” Hippler said.

Jury selection in Kohberger’s murder trial is not scheduled to start until July 30, 2025.

Kohberger is accused of the November 2022 stabbing deaths of the four U of I students at a home near campus in Moscow. At the time he was a graduate student at Washington State University living just over the Idaho-Washington border in Pullman.

The four victims were three North Idaho women who lived in the home, and the boyfriend of one of them. They were: Kaylee Goncalves, 21, of Rathdrum; Madison Mogen, 21, of Coeur d’Alene; Xana Kernodle, 20, of Post Falls; and Ethan Chapin, 20, of Mount Vernon, Washington. Two other female housemates went physically unharmed in the early morning weekend attack.

Kohberger is charged with four counts of first-degree murder along with a count of felony burglary. A defendant is eligible for the death penalty in Idaho only with a first-degree murder or conspiracy to commit first-degree murder conviction — such as in the criminal cases of Lori and Chad Daybell.

Last year, prosecutors in the case issued their intent to seek the death penalty for Kohberger, as required under Idaho law. A jury must be unanimous in its decision to sentence a defendant to death following a murder conviction.

Earlier Thursday morning, the judge held a closed-door hearing to consider whether to grant Kohberger’s request to wear street clothes at all hearings ahead of his trial, rather than standard jail jumpsuits. Defendants are already allowed to wear suits and clothing other than jail attire at trial. Hippler announced at the start of Thursday’s hearing that he granted the defense’s request, adding that he spoke with court security to revise any additional steps that would need to be taken.

“This court has employed security measures, and is comfortable in terms of the security and flight risk related to Mr. Kohberger with those measures,” Hippler said, “and therefore has granted the defense motion to allow him to appear in civilian clothes.” Kohberger appeared in court Thursday wearing a dark gray suit with a blue button-down shirt and striped tie.

‘We’ve reached the point where the death penalty ought to be abolished’

Kohberger’s defense team spent the majority of Thursday’s hearing challenging the death penalty from nearly every angle. From concerns that too many people are eligible for the death penalty to Idaho’s recent challenges in performing an execution.

“Instead of it being a situation where the worst of the worst are being charged with the death penalty, everyone falls within that category,” Massoth said in court.

The defense also pointed to the failed execution of Thomas Creech and argued that while the Idaho Department of Correction has recently been able to obtain the lethal injection drug they’ve had difficulty in the past which led to the addition of the firing squad as a method of execution.

While the prosecution concurred that a “high percentage” of Idaho’s first-degree murder cases are eligible for capital punishment, Idaho Deputy Attorney General Jeff Nye, who leads the office’s criminal law division, said it doesn’t apply to every single murder.

Idaho public defender Jay Logsdon, who arrived at the courthouse a few hours into the hearing, also angled to have the death penalty removed on the grounds that it violated international law because of the broadness of the law and the length between a conviction and execution.

Logsdon pointed to the shrinking number of states that impose the death penalty, but Nye countered that a state removing the death penalty doesn’t mean officials thought it was “immoral or improper.”

“We’ve reached the point where the death penalty ought to be abolished,” Logsdon added.

Nye countered that “we’re nowhere near a national consensus that the death penalty is somehow immoral or improper or indecent.”

Defense argues death penalty is unconstitutional, while the prosecution says it’s the law

Kohberger’s attorneys have also asked Hippler to strike all of the aggravating factors against their client — which in turn would remove the death penalty as an option. To sentence someone to death, a jury needs to find what is called an aggravating factor to justify the most extreme sentencing option.

In their intent to seek the death penalty, the Latah County Prosecutor’s Office initially cited five aggravating factors including allegations that Kohberger “exhibited utter disregard for human life” and “a propensity to commit murder which will probably constitute a continuing threat to society.”

Following challenges by the defense, the prosecution removed one of the five factors: an allegation that the killing was committed while also perpetrating the crime of burglary. Under Idaho law, the jury only needs to find a single aggravating factor.

Now the defense is taking aim at the other four factors. Honing in on the factor that has alleged Kohberger has “exhibited a propensity to commit murder” and that he’ll continue to be a danger to society, Taylor said during Thursday’s hearing that she couldn’t count the “number of times” she has heard prosecutors accuse one of her clients of committing the “worst” crime “they’ve ever seen.”

“That can’t be true when you sit in court day after day after day, and you hear that about person after person after person,” Taylor said. “This statute doesn’t do anything to help a jury decide who is the worst of the worst.”

“This aggravator absolutely has to be struck,” Taylor added . “It’s a violation of the Eighth Amendment.”

The prosecution continually argued the fact that both state and federal courts have upheld the death penalty as an option.

“All of these aggravators have been upheld,” Ingrid Batey, an Idaho special assistant attorney general assigned to the case, said in court. “We would ask the court to deny their motion.”