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

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this episode, we're getting right back to Judge Hipler's order

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denying Brian Kolberger's motions to remove the death penalty. I

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Motion to strike State's Notice on grounds of means of execution.

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Defendant seeks to strike the state's notice on grounds of

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Idaho's statutory methods of execution and that they violate the

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eighth and fourteenth Amendments of the United States Constitution and

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its Idaho corollaries. Currently, there are two methods of execution

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that are prescribed by Idaho statute, lethal injection and firing squad.

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Defendant asserts that Idaho currently does not have the ability

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to kill a person by lethal injection, and the firing

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squad is not only currently unavailable, it's cruel and unusual.

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To this end, he provides the affidavit of Barbara Wolf

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MD opining as to the conscious pain and suffering an

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individual executed by firing squad will suffer. Defendant further argues

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that this is unconstant institutional to allow him to sit

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on death row without knowing how he will be executed.

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The State responds that defendant's motion must be denied. As

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it's not ripe, it is foreclosed by the United States

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Supreme Court jurisprudence, and it is facially insufficient because he

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fails to identify an alternative method of execution. The court

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agrees one defendant's motion is not ripe. To be justiceable,

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an issue must be ripe. Ripeness is a part of

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justiceability that asked whether there is any need for court

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action at the present time. A litigant must demonstrate that

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an actual controversy exists and that the requested relief will

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provide actual relief, not merely potential relief. There is no

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heart and fast rule as to when a method of

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execution claim becomes ripe. The Ninth Circuit holds that a

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challenge to the method of execution becomes ripe when the

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method is chosen Pazuto versus t Walt, nine ninety seven FT.

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Three D eight ninety three, nine oh two, Ninth Circuit,

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twenty twenty one. Other courts have set forth other thresholds.

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See Gallo verus State, two thirty nine, s W three

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D seven fifty seven seven eighty. Texas Criminal Appeals Court

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two thousand and seven challenged the lethal objection not ripe

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on direct appeal since there was no execution date and

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current method of execution may not exist in the future.

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Ridgard Tink vers. State sixty six, South three d. Eight

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sixty six eight ninety seven to ninety eight, Florida, twenty eleven.

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Method of execution claim becomes right when the death warrant

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is signed. State vers. Washington p. Three point thirty five

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ninety six six sixty two, Oregon, twenty fourteen, when all

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direct and collateral review proceedings have concluded and death warren

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has issued. State vers. Johnson, two forty four Missouri, two

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thousand and eight. Harris Johnson fifth Circuit won execution by

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lethal injection was an event reasonably likely to occur in

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the future. Notably, in all of these cases the defendants

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were already on death row. Defendant has presented no case

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where a capital defendant who has not yet been found

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guilty of murder can challenge the method of execution. Instead,

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he claims it should be decided now to avoid his

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own fate of ever increasing fear and distress. However, this

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runs counter to the rightness doctrine, which requires that an actual,

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not potential controversy the method of execution, that is currently

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statutorily authorized in Idaho, lethal injection and if unavailable, firing

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squad may change in the future. Assuming defendant is convicted

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and that the death penalty is imposed, it would likely

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be at least a decade before he is executed. To

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decide now as to the constitutionality of any given method

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would amount to an advisory opinion. Avoidance of defendant's distress

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is not a basis to contravene well settled rules of

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justice aability. Consequently, the motion fails. Lethal injection and firing

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squad have been found constitutional by the US Supreme Court.

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Even if Defendant's motion were ripe, it has been foreclosed

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by prior United States Supreme Court precedent finding both lethal

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injection and the firing squad to be constitutional methods of execution.

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In Wilkerson versus Utah, the Court upheld the firing squad,

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finding it did not contravene the Eighth Amendment. While defendant

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disputes that Wilgerson actually found death by firing squad past

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the constitutional muster, that is precisely what Wilkerson held. Cruel

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and unusual punishments are forbidden by the Constitution, but the

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punishment of shooting as a mode of executing. The death

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penalty for the crime a murder in the first degree

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is not included in that category within the meaning of

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the Eighth Amendment. Moreover, the United States Supreme Court consistently

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cites to Wilkerson as upholding a sentence of death by

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firing squad imposed by territorial court, rejecting the argument that

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such sentence constituted cruel and unusual punishment. Additionally, in Boz,

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the Court found that the three drug protocol states commonly

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used for lethal injection did not violate the Eighth Amendment

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five point fifty three US thirty five two oh seven. Subsequently,

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in Glossip versus Gross, the Court approved of the use

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of mid dasolam in lethal injection executions. Incited approvingly to

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a list of courts across the country that have held

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that the use of petrol barbital in executions does not

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violate the Eighth Amendment. Defendant has not advanced any basis

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to question these holdings. Defendant has failed to identify an

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alternative method of execution. Finally, a prerequisite to an Eighth

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Amendment challenge to a method of execution is demonstrating an

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available alternative method which defendant is not done. The Eighth

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Amendment does not guarantee a prisoner a painless death. Defendant

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provides no basis for his assertion that death by lethal

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injection is not available in Idaho. In February of twenty

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twenty four, Idaho attempted to execute Thomas Creech by lethal injection,

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yet was unable to do so due to the inability

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to establish reliable in travenous access, not because the drugs

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were unavailable. Creach Verse State, twenty twenty four w L

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four six seven eight two two eight at seven, Idaho,

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November fifth, twenty twenty four. In fact, Creach was scheduled

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for a second attempt of execution by lethal injection on

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November thirteenth, twenty twenty four, but it was suspended due

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to a stay imposed by Idaho's Federal District Court. Therefore,

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at the current time, it appears that death by lethal

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injection is an available means of execution in Idaho. Moreover,

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even if it were not, any anxiety defendant may experience

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from not knowing how he is going to be executed

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does not implicate the Eighth Amendment. Idea at seven psychological

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strain the subsequent nightmares and trauma creach experience. Preparing for

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the failed executcution, and an anticipation of a second execution

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attempt is not an Eighth Amendment violation. The facility for

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the firing squad has not yet been built. The state

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objected to live testimony by doctor Wolfe on grounds that

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because the issue is not ripe, her opinions would not

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aid the trier of fact in determining a fact of

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consequence Ire seven oh two. The Court orally granted the objection,

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finding doctor Wolf's affid David to be a sufficient proffer

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for purposes of this motion. In fact, the U. S.

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Supreme Court has never invalidated a state's chosen procedure for

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carrying out a sentence of death as the infliction of

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cruel and unusual punishment Blase five point fifty three, US

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at forty eight. To prevail on such a claim, a

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person must show a substantial risk of serious harm, an

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objectively intolerable risk of harm that prevents prison officials from

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pleading that they were subjectively blameless for purposes of the

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Eighth Amendment ID at fifty, quoting Farmer versus Brennan, five

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eleven US eight twenty five, eight forty two, eight forty six,

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and nine. Simply because an execution method may result in pain,

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either by accident or as an inescapable consequence of death,

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does not establish the sort of objectively intolerable risk of

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harm that qualifies as cruel and unusual Buckloo versus Prekith

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five eighty seven US one nineteen, one thirty two, and

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thirty three twenty nineteen. Rather, it forbids long disused unusual

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forms of punishment that intensified the sentence of death with

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a cruel super edition of terra pain or disgrace, quoting

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Blase five point fifty three US at forty eight, Thomas j.

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Concurring in judgment. Moreover, a requirement of all Eighth Amendment

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method of execution claims is identifying an available alternative IDEA

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one thirty six. As the Court pointed out in Buckloo,

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distinguishing between constitutionally permissible and impervisible degrees of pain is

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a necessarily comparative exercise to decide whether the state is

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cruelly superrated pain to the punishment of death is in

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something that can be accomplished by examining the state's proposed

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method In a vacuum, but only by comparing that method

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with viable alternatives Glossip, seven seventy six US at one

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thirty five. Defendant acknowledges he has not identified an alternative method,

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but intends his claim is distinct from the method of

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execution claims in buck Law, Blaws and Glossip. He argues

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Idaho's chosen methods are unconstitutional because they threaten Idaho citizens

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with the means of execution that cannot be carried out

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without causing undue pain. However, this is not a distinction

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that can be drawn. Undue pain is precisely the question

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that the foregoing method of execution cases addresses. To strike

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a method of execution as unduly painful under the Eighth Amendment,

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defendant must come forward with an alternative method. Has not

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done so, thus foreclosing his claim order based on the

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foregoing analysis, defendants death penalty motions are hereby denied. This

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document was signed on November nineteenth of twenty twenty four,

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and it was signed by Judge Hipler. All of the

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information that goes with this episode can be found in

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the description box.