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<v Speaker 1>What's up everyone, and welcome back to the program. In

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<v Speaker 1>this episode, we're picking up where we left off with

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<v Speaker 1>Judge Hibler's ruling and memorandum on the death penalty imposed

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<v Speaker 1>on Brian Koberger three. Defendant has not demonstrated Idaho's capital

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<v Speaker 1>scheme is geographically arbitrary. Defendant additionally argues that Idaho's capital

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<v Speaker 1>scheme produces unequal application of the death penalty based on geography. Specifically,

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<v Speaker 1>he maintains that all first degree murders in Idaho fall

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<v Speaker 1>within one of the aggravating circumstances listed in IC Section

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<v Speaker 1>nineteen twenty five fifteen, thus giving prosecutors complete discretion to

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<v Speaker 1>determine whether to seek the death penalty. This, he argues,

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<v Speaker 1>gives rise to the county by county arbitrariness. That is,

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<v Speaker 1>whether you are chosen for the death penalty depends moron

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<v Speaker 1>where you committed the crime than how you committed the

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<v Speaker 1>crime Mountain Page A. To this end, he cites Professor

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<v Speaker 1>Covers study no. Being that between two thousand and two

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<v Speaker 1>and twenty nineteen there were roughly the same number of

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<v Speaker 1>death eligible cases in the three largest counties, Ada, Canyon,

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<v Speaker 1>and Cootney as in the remaining counties put together Cover

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<v Speaker 1>fifty seven Idaho l. Rev. At. Five, ninety three and

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<v Speaker 1>ninety five. This arbitrariness, according to defendant, deprives them of

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<v Speaker 1>equal protection under the law, constitutes cruel and unusual punishment,

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<v Speaker 1>and violates uniformity of justice afforded by Idaho Constitution Article five,

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<v Speaker 1>Sections two and twenty six. The defendant's argument fails for

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<v Speaker 1>three reasons. First, as discussed, the premise underlying defendant's argument

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<v Speaker 1>is misplaced. Although at least one of Idaho's enumerated statutory

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<v Speaker 1>aggravators could apply to nearly every first degree murder, that

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<v Speaker 1>is not the proper analysis in determining narrowness. The question

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<v Speaker 1>is whether individual aggravators narrow the class of death eligible

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<v Speaker 1>murderers Hall Once sixty three Idaho. Seven eighty eight. Second,

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<v Speaker 1>Defendant's geography based challenge was considered and rejected by the

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<v Speaker 1>Idaho Supreme Court in Hairston. There the defendant presented a

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<v Speaker 1>study showing that the imposition of death penalty was higher

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<v Speaker 1>in urban counties than in rural counties, and that financial

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<v Speaker 1>resources potentially played a role in a prosecutor's decision to

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<v Speaker 1>seek the death penalty. The defendant argued this rendered Idaho's

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<v Speaker 1>death penalty scheme arbitrary and capricious, but the Idaho Supreme

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<v Speaker 1>Court disagreed. Namely, the court noted that the study did

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<v Speaker 1>not collect or analyze the underlying data giving rise to

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<v Speaker 1>the cause of the discrepancy. While there were indications the

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<v Speaker 1>discrepancy was economically driven, this was insufficient to implicate a

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<v Speaker 1>constitutional concern. In so holding, the court noted that variance

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<v Speaker 1>in the implementation of state's capital scheme is constitutionally permissible

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<v Speaker 1>so long as it's based on legitimate objective factors such

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<v Speaker 1>as strength of evidence, the capable of law enforcement agencies,

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<v Speaker 1>and the judgment of the sentencing authority. Without empirical evidence

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<v Speaker 1>connecting the discrepancy to it impermissible factor, the court noted

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<v Speaker 1>it would not trigger constitutional concern. Defendant is not offered

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<v Speaker 1>the empirical evidence required by Harston. Professor Cover admittedly did

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<v Speaker 1>not collect or analyze the data that would provide the

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<v Speaker 1>reason for the county by county discrepancy in Idaho. She notes,

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<v Speaker 1>I did not systematically collect data on offense egregiousness, nor

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<v Speaker 1>did I catalog all possible aggravating and mitigating circumstances in

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<v Speaker 1>each case. As a result, I cannot report findings about

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<v Speaker 1>whether Idaho's system is arbitrary and capricious in the sense

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<v Speaker 1>that the distribution of death sentences across the universe of

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<v Speaker 1>death eligible cases can be explained not by the merits

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<v Speaker 1>or the case i e. The weight of the aggravating

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<v Speaker 1>and mitigation circumstances, but rather by an arbitrary factor such

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<v Speaker 1>as race, gender, or geography. Thus, her study fails to

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<v Speaker 1>support Defendant's argument for the same reasons the study in Harsteinfeld.

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<v Speaker 1>There is simply no basis to conclude that the discrepancy

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<v Speaker 1>she observed is caused by unbridled prosecutorial charging, discretion, or

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<v Speaker 1>any other constitutionally impermissible factor. Third, to establish an equal

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<v Speaker 1>protection violation, defendant must establish not only the existence of

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<v Speaker 1>purposeful discrimination, but that the decision makers in his case

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<v Speaker 1>i e. The Leayta County prosecutor acted with a discriminatory purpose.

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<v Speaker 1>The fact that the death penalty was sought against defendant

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<v Speaker 1>in Leyta County as opposed to Ada County or Accoutney

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<v Speaker 1>undermines any suggestion that defendant was discriminated against on the

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<v Speaker 1>basis of geography. Indeed, according to Professor Cover's study, not

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<v Speaker 1>a single notice of intent to seek the death penalty

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<v Speaker 1>was filed in Leyta County during the time period she studied. Defendant, however,

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<v Speaker 1>contends that McCleskey and, by extension, Hairston have been limited

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<v Speaker 1>by the subsequent case of Bush versus Gore, a voting

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<v Speaker 1>rights case in which the United States Supreme Court held

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<v Speaker 1>out of state's county cannot subject fundamental rights to differing

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<v Speaker 1>arbitrary standards, and that a formulation of uniform rules to

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<v Speaker 1>determine intent based on these reoccurring circumstances is practicable and

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<v Speaker 1>necessary five point thirty one US two thousand. Defendant argues

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<v Speaker 1>that under Bush, there is equal protection issues with disparities

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<v Speaker 1>and rights for citizens based on geography. This argument, however,

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<v Speaker 1>has been rejected by other courts that have considered challenges

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<v Speaker 1>to prosecutorial discretion over the death penalty. See Michael T. Morley,

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<v Speaker 1>Bush versus Gore as uniformity principle and equal protection to

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<v Speaker 1>write to vote to twenty nine, twenty twenty. Primarily, these

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<v Speaker 1>courts find that the principles of Bush do not apply

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<v Speaker 1>in the criminal context, given it's expressly limited holding. Other

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<v Speaker 1>courts have found that because their state. Capital schemes do

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<v Speaker 1>not give prosecutors on bridal discretion in pursuing the death penalty.

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<v Speaker 1>There is not the same risk of unequal treatment presented

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<v Speaker 1>in Bush c. Crow versus Terry, four twenty six supp

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<v Speaker 1>And D. Georgia, two thousand and five. For both of

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<v Speaker 1>these reasons, the Court likewise rejects the argument. In some

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<v Speaker 1>the Court finds that both arguments advance the defendant in

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<v Speaker 1>aid of his arbitrary in his motion are foreclosed by

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<v Speaker 1>binding precedent, and his efforts to distinguish such precedent fell.

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<v Speaker 1>The motion is denied. B motion to strike individual aggravators.

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<v Speaker 1>The state is identified for statutory aggravators in its notice

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<v Speaker 1>that it intends to rely upon in requesting the imposition

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<v Speaker 1>of death. In this case, One, at the time the

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<v Speaker 1>murder was committed, the defendant also committed another murder. Two,

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<v Speaker 1>the murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity.

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<v Speaker 1>Three by the murder or circumstances surrounding its commission, the

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<v Speaker 1>defendant exhibited utter disregard for human life and for the

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<v Speaker 1>defendant by his conduct, whether such conduct was before, during,

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<v Speaker 1>or after the commission of the murder at hand has

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<v Speaker 1>exhibited a propensity to commit murder which will probably constitute

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<v Speaker 1>a continuing threat to society. Through four separate motions, Defendant

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<v Speaker 1>seeks to strike each of the foregoing aggravators for various reasons.

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<v Speaker 1>The Court finds none of the defendant's arguments to be prevailing.

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<v Speaker 1>One utter disregard aggravator. The utter disregard aggravator applies when,

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<v Speaker 1>by murder or circumstances surrounding its commission, the defendant exhibited

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<v Speaker 1>utter disregard for human life. I See nineteen twenty five,

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<v Speaker 1>fifteen nine F. In State Verse Osborne, the Idaho Supreme

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<v Speaker 1>Court applied to limiting construction to the aggravator, to wit,

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<v Speaker 1>the phrase is meant to be reflective of acts or

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<v Speaker 1>circumstances surrounding the crime which exhibit the highest and utmost

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<v Speaker 1>callous disregard for human life, i e. The cold blooded,

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<v Speaker 1>hityless slayer one O. Two Idaho four oh five four

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<v Speaker 1>nineteen six thirty one, p. Dot two D one eighty

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<v Speaker 1>seven two oh one, nineteen eighty one. In moving to

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<v Speaker 1>strike aggravator, defendant argues that Osborne's limiting construction or judicial gloss,

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<v Speaker 1>as he characterizes it, is unconstitutional as it violates a

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<v Speaker 1>separation of powers in Articles two and one of the

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<v Speaker 1>Idaho Constitution. He additionally argues that Idaho's criminal Jerry instruction

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<v Speaker 1>ic JI seventeen fourteen defining the utter disregard aggravator overlaps

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<v Speaker 1>with ic JI seventeen thirteen defining the heinous, atrocious, and

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<v Speaker 1>cruel aggravator described in ic Section nineteen twenty five fifteen

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<v Speaker 1>nine in E, and ignores the alleged legislatures intent that

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<v Speaker 1>the killing be done recklessly. Neither argument has merit a

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<v Speaker 1>Neither Verska nor the separation of powers doctrine precludes a

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<v Speaker 1>limiting construction. There's no dispute that Idaho's utter disregard aggravator

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<v Speaker 1>is narrowed by Osborne has consistently been upheld as constitutional,

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<v Speaker 1>including by the United States Supreme Court, where in a

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<v Speaker 1>ro vi verse creach it rejected a constitutional vagueness challenge. Specifically,

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<v Speaker 1>the Court found it necessary to decide whether the statutory

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<v Speaker 1>language itself passed a constitutional muster, concluding instead that Osborne

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<v Speaker 1>limiting construction adequately channel sentencing discretion as required by the

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<v Speaker 1>Eighth and Fourteenth Amendments. Idea at four sixty five and

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<v Speaker 1>four seventy one. Analyzing the language of the limiting construction,

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<v Speaker 1>the Court noted that in ordinary usage, then the phrase

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<v Speaker 1>cold blooded pitiless slayer refers to a killer who kills

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<v Speaker 1>without feeling or sympathy idea at four seventy two. These terms,

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<v Speaker 1>the Court observed, described the defendant state of mind, not

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<v Speaker 1>his men's rea, but his attitude toward his conduct and

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<v Speaker 1>his victim. This is not a subjective matter, reason the

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<v Speaker 1>Court what a fact to be inferred from the surrounding circumstances. Likewise,

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<v Speaker 1>the Idaho Supreme Court has repeatedly reaffirmed the constitutionality of

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<v Speaker 1>the utter disregard aggravator with the Osborne limiting construction. It

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<v Speaker 1>most recently did so in twenty eighteen, wherein Hall it

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<v Speaker 1>declined to revisit whether the aggravator was unconstitutionally vague, noting

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<v Speaker 1>the issue had previously been properly resolved. Defendant, however, argues

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<v Speaker 1>that Osborne's limiting construction violates the separation of powers in

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<v Speaker 1>Articles II, Section one of the Idaho Constitution, specifically relying

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<v Speaker 1>on Veriska versus Saint Alphonsi's Regional Medical Center, Defendant argues

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<v Speaker 1>that the courts have no power to revise an unambiguous

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<v Speaker 1>statute in order to avoid absurdity because the wisdom, justice, policy,

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<v Speaker 1>or expediency of a statute or questions for the legislature alone. However,

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<v Speaker 1>as the State points out, Verska merely held that the

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<v Speaker 1>court does not have the authority to modify an unambiguous

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<v Speaker 1>statute off a lying it as written results in a

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<v Speaker 1>palpable absurdity. We have never revised or avoided in an

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<v Speaker 1>ambiguous statute on the grounds that it is patently absurd

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<v Speaker 1>or would produce absurd results when construed is written, and

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<v Speaker 1>we do not have the authority to do so. Irska

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<v Speaker 1>did not limit a court's ability to interpret ambiguous statutes

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<v Speaker 1>or inhibit a court from applying clarifying standards to constitutionally

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<v Speaker 1>vague statutes, particularly in the face of constitutional obligation to

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<v Speaker 1>tailor a statutory aggravator to avoid the arbitrary and capricious

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<v Speaker 1>infliction of the death penalty god Free, four forty six

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<v Speaker 1>US at four twenty eight. In fact, an Abdullah decided

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<v Speaker 1>after Verska, the Idaho Supreme Court rejected a similar separation

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<v Speaker 1>of powers argument with regard to the limiting construction for

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<v Speaker 1>both the utter disregard and HAC aggravators, holding that the

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<v Speaker 1>Court was within its constitutional authority to narrowly construe an

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<v Speaker 1>aggravating circumstance to avoid an unconstitutionally vague statute, and its

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<v Speaker 1>ability to do so is not constrained by the separation

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<v Speaker 1>of powers doctrine one fifty eight Idaho. At. Four sixty

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<v Speaker 1>four three forty eight, p. Dot three, d at seventy nine. Indeed,

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<v Speaker 1>despite Versco, the Court has continued to uphold Osborne limiting

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<v Speaker 1>construction for the utter disregard aggravator ceed Dunlap one fifty

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<v Speaker 1>five Idaho. Three seventy seven, three thirteen, p Dot three,

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<v Speaker 1>d at thirty three. Abdullah one fifty eight Idaho. Four

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<v Speaker 1>sixty three three forty eight p Dot three, d at

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<v Speaker 1>seventy eight. This binding precedent forecloses defendants argument. All right,

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<v Speaker 1>we're gonna wrap up right here and in the next

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<v Speaker 1>episode dealing with the topic, We're gonna pick up with

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<v Speaker 1>b I see Ji seventeen fourteen is consistent with case law.

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<v Speaker 1>All of the information that goes with this episode can

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<v Speaker 1>be found in the description box