Speaker 1: What's up everyone, and welcome back to the program. In
Speaker 1: this episode, we're picking up where we left off with
Speaker 1: Judge Hibler's ruling and memorandum on the death penalty imposed
Speaker 1: on Brian Koberger three. Defendant has not demonstrated Idaho's capital
Speaker 1: scheme is geographically arbitrary. Defendant additionally argues that Idaho's capital
Speaker 1: scheme produces unequal application of the death penalty based on geography. Specifically,
Speaker 1: he maintains that all first degree murders in Idaho fall
Speaker 1: within one of the aggravating circumstances listed in IC Section
Speaker 1: nineteen twenty five fifteen, thus giving prosecutors complete discretion to
Speaker 1: determine whether to seek the death penalty. This, he argues,
Speaker 1: gives rise to the county by county arbitrariness. That is,
Speaker 1: whether you are chosen for the death penalty depends moron
Speaker 1: where you committed the crime than how you committed the
Speaker 1: crime Mountain Page A. To this end, he cites Professor
Speaker 1: Covers study no. Being that between two thousand and two
Speaker 1: and twenty nineteen there were roughly the same number of
Speaker 1: death eligible cases in the three largest counties, Ada, Canyon,
Speaker 1: and Cootney as in the remaining counties put together Cover
Speaker 1: fifty seven Idaho l. Rev. At. Five, ninety three and
Speaker 1: ninety five. This arbitrariness, according to defendant, deprives them of
Speaker 1: equal protection under the law, constitutes cruel and unusual punishment,
Speaker 1: and violates uniformity of justice afforded by Idaho Constitution Article five,
Speaker 1: Sections two and twenty six. The defendant's argument fails for
Speaker 1: three reasons. First, as discussed, the premise underlying defendant's argument
Speaker 1: is misplaced. Although at least one of Idaho's enumerated statutory
Speaker 1: aggravators could apply to nearly every first degree murder, that
Speaker 1: is not the proper analysis in determining narrowness. The question
Speaker 1: is whether individual aggravators narrow the class of death eligible
Speaker 1: murderers Hall Once sixty three Idaho. Seven eighty eight. Second,
Speaker 1: Defendant's geography based challenge was considered and rejected by the
Speaker 1: Idaho Supreme Court in Hairston. There the defendant presented a
Speaker 1: study showing that the imposition of death penalty was higher
Speaker 1: in urban counties than in rural counties, and that financial
Speaker 1: resources potentially played a role in a prosecutor's decision to
Speaker 1: seek the death penalty. The defendant argued this rendered Idaho's
Speaker 1: death penalty scheme arbitrary and capricious, but the Idaho Supreme
Speaker 1: Court disagreed. Namely, the court noted that the study did
Speaker 1: not collect or analyze the underlying data giving rise to
Speaker 1: the cause of the discrepancy. While there were indications the
Speaker 1: discrepancy was economically driven, this was insufficient to implicate a
Speaker 1: constitutional concern. In so holding, the court noted that variance
Speaker 1: in the implementation of state's capital scheme is constitutionally permissible
Speaker 1: so long as it's based on legitimate objective factors such
Speaker 1: as strength of evidence, the capable of law enforcement agencies,
Speaker 1: and the judgment of the sentencing authority. Without empirical evidence
Speaker 1: connecting the discrepancy to it impermissible factor, the court noted
Speaker 1: it would not trigger constitutional concern. Defendant is not offered
Speaker 1: the empirical evidence required by Harston. Professor Cover admittedly did
Speaker 1: not collect or analyze the data that would provide the
Speaker 1: reason for the county by county discrepancy in Idaho. She notes,
Speaker 1: I did not systematically collect data on offense egregiousness, nor
Speaker 1: did I catalog all possible aggravating and mitigating circumstances in
Speaker 1: each case. As a result, I cannot report findings about
Speaker 1: whether Idaho's system is arbitrary and capricious in the sense
Speaker 1: that the distribution of death sentences across the universe of
Speaker 1: death eligible cases can be explained not by the merits
Speaker 1: or the case i e. The weight of the aggravating
Speaker 1: and mitigation circumstances, but rather by an arbitrary factor such
Speaker 1: as race, gender, or geography. Thus, her study fails to
Speaker 1: support Defendant's argument for the same reasons the study in Harsteinfeld.
Speaker 1: There is simply no basis to conclude that the discrepancy
Speaker 1: she observed is caused by unbridled prosecutorial charging, discretion, or
Speaker 1: any other constitutionally impermissible factor. Third, to establish an equal
Speaker 1: protection violation, defendant must establish not only the existence of
Speaker 1: purposeful discrimination, but that the decision makers in his case
Speaker 1: i e. The Leayta County prosecutor acted with a discriminatory purpose.
Speaker 1: The fact that the death penalty was sought against defendant
Speaker 1: in Leyta County as opposed to Ada County or Accoutney
Speaker 1: undermines any suggestion that defendant was discriminated against on the
Speaker 1: basis of geography. Indeed, according to Professor Cover's study, not
Speaker 1: a single notice of intent to seek the death penalty
Speaker 1: was filed in Leyta County during the time period she studied. Defendant, however,
Speaker 1: contends that McCleskey and, by extension, Hairston have been limited
Speaker 1: by the subsequent case of Bush versus Gore, a voting
Speaker 1: rights case in which the United States Supreme Court held
Speaker 1: out of state's county cannot subject fundamental rights to differing
Speaker 1: arbitrary standards, and that a formulation of uniform rules to
Speaker 1: determine intent based on these reoccurring circumstances is practicable and
Speaker 1: necessary five point thirty one US two thousand. Defendant argues
Speaker 1: that under Bush, there is equal protection issues with disparities
Speaker 1: and rights for citizens based on geography. This argument, however,
Speaker 1: has been rejected by other courts that have considered challenges
Speaker 1: to prosecutorial discretion over the death penalty. See Michael T. Morley,
Speaker 1: Bush versus Gore as uniformity principle and equal protection to
Speaker 1: write to vote to twenty nine, twenty twenty. Primarily, these
Speaker 1: courts find that the principles of Bush do not apply
Speaker 1: in the criminal context, given it's expressly limited holding. Other
Speaker 1: courts have found that because their state. Capital schemes do
Speaker 1: not give prosecutors on bridal discretion in pursuing the death penalty.
Speaker 1: There is not the same risk of unequal treatment presented
Speaker 1: in Bush c. Crow versus Terry, four twenty six supp
Speaker 1: And D. Georgia, two thousand and five. For both of
Speaker 1: these reasons, the Court likewise rejects the argument. In some
Speaker 1: the Court finds that both arguments advance the defendant in
Speaker 1: aid of his arbitrary in his motion are foreclosed by
Speaker 1: binding precedent, and his efforts to distinguish such precedent fell.
Speaker 1: The motion is denied. B motion to strike individual aggravators.
Speaker 1: The state is identified for statutory aggravators in its notice
Speaker 1: that it intends to rely upon in requesting the imposition
Speaker 1: of death. In this case, One, at the time the
Speaker 1: murder was committed, the defendant also committed another murder. Two,
Speaker 1: the murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity.
Speaker 1: Three by the murder or circumstances surrounding its commission, the
Speaker 1: defendant exhibited utter disregard for human life and for the
Speaker 1: defendant by his conduct, whether such conduct was before, during,
Speaker 1: or after the commission of the murder at hand has
Speaker 1: exhibited a propensity to commit murder which will probably constitute
Speaker 1: a continuing threat to society. Through four separate motions, Defendant
Speaker 1: seeks to strike each of the foregoing aggravators for various reasons.
Speaker 1: The Court finds none of the defendant's arguments to be prevailing.
Speaker 1: One utter disregard aggravator. The utter disregard aggravator applies when,
Speaker 1: by murder or circumstances surrounding its commission, the defendant exhibited
Speaker 1: utter disregard for human life. I See nineteen twenty five,
Speaker 1: fifteen nine F. In State Verse Osborne, the Idaho Supreme
Speaker 1: Court applied to limiting construction to the aggravator, to wit,
Speaker 1: the phrase is meant to be reflective of acts or
Speaker 1: circumstances surrounding the crime which exhibit the highest and utmost
Speaker 1: callous disregard for human life, i e. The cold blooded,
Speaker 1: hityless slayer one O. Two Idaho four oh five four
Speaker 1: nineteen six thirty one, p. Dot two D one eighty
Speaker 1: seven two oh one, nineteen eighty one. In moving to
Speaker 1: strike aggravator, defendant argues that Osborne's limiting construction or judicial gloss,
Speaker 1: as he characterizes it, is unconstitutional as it violates a
Speaker 1: separation of powers in Articles two and one of the
Speaker 1: Idaho Constitution. He additionally argues that Idaho's criminal Jerry instruction
Speaker 1: ic JI seventeen fourteen defining the utter disregard aggravator overlaps
Speaker 1: with ic JI seventeen thirteen defining the heinous, atrocious, and
Speaker 1: cruel aggravator described in ic Section nineteen twenty five fifteen
Speaker 1: nine in E, and ignores the alleged legislatures intent that
Speaker 1: the killing be done recklessly. Neither argument has merit a
Speaker 1: Neither Verska nor the separation of powers doctrine precludes a
Speaker 1: limiting construction. There's no dispute that Idaho's utter disregard aggravator
Speaker 1: is narrowed by Osborne has consistently been upheld as constitutional,
Speaker 1: including by the United States Supreme Court, where in a
Speaker 1: ro vi verse creach it rejected a constitutional vagueness challenge. Specifically,
Speaker 1: the Court found it necessary to decide whether the statutory
Speaker 1: language itself passed a constitutional muster, concluding instead that Osborne
Speaker 1: limiting construction adequately channel sentencing discretion as required by the
Speaker 1: Eighth and Fourteenth Amendments. Idea at four sixty five and
Speaker 1: four seventy one. Analyzing the language of the limiting construction,
Speaker 1: the Court noted that in ordinary usage, then the phrase
Speaker 1: cold blooded pitiless slayer refers to a killer who kills
Speaker 1: without feeling or sympathy idea at four seventy two. These terms,
Speaker 1: the Court observed, described the defendant state of mind, not
Speaker 1: his men's rea, but his attitude toward his conduct and
Speaker 1: his victim. This is not a subjective matter, reason the
Speaker 1: Court what a fact to be inferred from the surrounding circumstances. Likewise,
Speaker 1: the Idaho Supreme Court has repeatedly reaffirmed the constitutionality of
Speaker 1: the utter disregard aggravator with the Osborne limiting construction. It
Speaker 1: most recently did so in twenty eighteen, wherein Hall it
Speaker 1: declined to revisit whether the aggravator was unconstitutionally vague, noting
Speaker 1: the issue had previously been properly resolved. Defendant, however, argues
Speaker 1: that Osborne's limiting construction violates the separation of powers in
Speaker 1: Articles II, Section one of the Idaho Constitution, specifically relying
Speaker 1: on Veriska versus Saint Alphonsi's Regional Medical Center, Defendant argues
Speaker 1: that the courts have no power to revise an unambiguous
Speaker 1: statute in order to avoid absurdity because the wisdom, justice, policy,
Speaker 1: or expediency of a statute or questions for the legislature alone. However,
Speaker 1: as the State points out, Verska merely held that the
Speaker 1: court does not have the authority to modify an unambiguous
Speaker 1: statute off a lying it as written results in a
Speaker 1: palpable absurdity. We have never revised or avoided in an
Speaker 1: ambiguous statute on the grounds that it is patently absurd
Speaker 1: or would produce absurd results when construed is written, and
Speaker 1: we do not have the authority to do so. Irska
Speaker 1: did not limit a court's ability to interpret ambiguous statutes
Speaker 1: or inhibit a court from applying clarifying standards to constitutionally
Speaker 1: vague statutes, particularly in the face of constitutional obligation to
Speaker 1: tailor a statutory aggravator to avoid the arbitrary and capricious
Speaker 1: infliction of the death penalty god Free, four forty six
Speaker 1: US at four twenty eight. In fact, an Abdullah decided
Speaker 1: after Verska, the Idaho Supreme Court rejected a similar separation
Speaker 1: of powers argument with regard to the limiting construction for
Speaker 1: both the utter disregard and HAC aggravators, holding that the
Speaker 1: Court was within its constitutional authority to narrowly construe an
Speaker 1: aggravating circumstance to avoid an unconstitutionally vague statute, and its
Speaker 1: ability to do so is not constrained by the separation
Speaker 1: of powers doctrine one fifty eight Idaho. At. Four sixty
Speaker 1: four three forty eight, p. Dot three, d at seventy nine. Indeed,
Speaker 1: despite Versco, the Court has continued to uphold Osborne limiting
Speaker 1: construction for the utter disregard aggravator ceed Dunlap one fifty
Speaker 1: five Idaho. Three seventy seven, three thirteen, p Dot three,
Speaker 1: d at thirty three. Abdullah one fifty eight Idaho. Four
Speaker 1: sixty three three forty eight p Dot three, d at
Speaker 1: seventy eight. This binding precedent forecloses defendants argument. All right,
Speaker 1: we're gonna wrap up right here and in the next
Speaker 1: episode dealing with the topic, We're gonna pick up with
Speaker 1: b I see Ji seventeen fourteen is consistent with case law.
Speaker 1: All of the information that goes with this episode can
Speaker 1: be found in the description box