Speaker 1: What's up, everyone, and welcome back to the program. In
this episode, we're getting right back to Judge Hipler's order
denying Brian Kolberger's motions to remove the death penalty. I
Motion to strike State's Notice on grounds of means of execution.
Defendant seeks to strike the state's notice on grounds of
Idaho's statutory methods of execution and that they violate the
eighth and fourteenth Amendments of the United States Constitution and
its Idaho corollaries. Currently, there are two methods of execution
that are prescribed by Idaho statute, lethal injection and firing squad.
Defendant asserts that Idaho currently does not have the ability
to kill a person by lethal injection, and the firing
squad is not only currently unavailable, it's cruel and unusual.
To this end, he provides the affidavit of Barbara Wolf
MD opining as to the conscious pain and suffering an
individual executed by firing squad will suffer. Defendant further argues
that this is unconstant institutional to allow him to sit
on death row without knowing how he will be executed.
The State responds that defendant's motion must be denied. As
it's not ripe, it is foreclosed by the United States
Supreme Court jurisprudence, and it is facially insufficient because he
fails to identify an alternative method of execution. The court
agrees one defendant's motion is not ripe. To be justiceable,
an issue must be ripe. Ripeness is a part of
justiceability that asked whether there is any need for court
action at the present time. A litigant must demonstrate that
an actual controversy exists and that the requested relief will
provide actual relief, not merely potential relief. There is no
heart and fast rule as to when a method of
execution claim becomes ripe. The Ninth Circuit holds that a
challenge to the method of execution becomes ripe when the
method is chosen Pazuto versus t Walt, nine ninety seven FT.
Three D eight ninety three, nine oh two, Ninth Circuit,
twenty twenty one. Other courts have set forth other thresholds.
See Gallo verus State, two thirty nine, s W three
D seven fifty seven seven eighty. Texas Criminal Appeals Court
two thousand and seven challenged the lethal objection not ripe
on direct appeal since there was no execution date and
current method of execution may not exist in the future.
Ridgard Tink vers. State sixty six, South three d. Eight
sixty six eight ninety seven to ninety eight, Florida, twenty eleven.
Method of execution claim becomes right when the death warrant
is signed. State vers. Washington p. Three point thirty five
ninety six six sixty two, Oregon, twenty fourteen, when all
direct and collateral review proceedings have concluded and death warren
has issued. State vers. Johnson, two forty four Missouri, two
thousand and eight. Harris Johnson fifth Circuit won execution by
lethal injection was an event reasonably likely to occur in
the future. Notably, in all of these cases the defendants
were already on death row. Defendant has presented no case
where a capital defendant who has not yet been found
guilty of murder can challenge the method of execution. Instead,
he claims it should be decided now to avoid his
own fate of ever increasing fear and distress. However, this
runs counter to the rightness doctrine, which requires that an actual,
not potential controversy the method of execution, that is currently
statutorily authorized in Idaho, lethal injection and if unavailable, firing
squad may change in the future. Assuming defendant is convicted
and that the death penalty is imposed, it would likely
be at least a decade before he is executed. To
decide now as to the constitutionality of any given method
would amount to an advisory opinion. Avoidance of defendant's distress
is not a basis to contravene well settled rules of
justice aability. Consequently, the motion fails. Lethal injection and firing
squad have been found constitutional by the US Supreme Court.
Even if Defendant's motion were ripe, it has been foreclosed
by prior United States Supreme Court precedent finding both lethal
injection and the firing squad to be constitutional methods of execution.
In Wilkerson versus Utah, the Court upheld the firing squad,
finding it did not contravene the Eighth Amendment. While defendant
disputes that Wilgerson actually found death by firing squad past
the constitutional muster, that is precisely what Wilkerson held. Cruel
and unusual punishments are forbidden by the Constitution, but the
punishment of shooting as a mode of executing. The death
penalty for the crime a murder in the first degree
is not included in that category within the meaning of
the Eighth Amendment. Moreover, the United States Supreme Court consistently
cites to Wilkerson as upholding a sentence of death by
firing squad imposed by territorial court, rejecting the argument that
such sentence constituted cruel and unusual punishment. Additionally, in Boz,
the Court found that the three drug protocol states commonly
used for lethal injection did not violate the Eighth Amendment
five point fifty three US thirty five two oh seven. Subsequently,
in Glossip versus Gross, the Court approved of the use
of mid dasolam in lethal injection executions. Incited approvingly to
a list of courts across the country that have held
that the use of petrol barbital in executions does not
violate the Eighth Amendment. Defendant has not advanced any basis
to question these holdings. Defendant has failed to identify an
alternative method of execution. Finally, a prerequisite to an Eighth
Amendment challenge to a method of execution is demonstrating an
available alternative method which defendant is not done. The Eighth
Amendment does not guarantee a prisoner a painless death. Defendant
provides no basis for his assertion that death by lethal
injection is not available in Idaho. In February of twenty
twenty four, Idaho attempted to execute Thomas Creech by lethal injection,
yet was unable to do so due to the inability
to establish reliable in travenous access, not because the drugs
were unavailable. Creach Verse State, twenty twenty four w L
four six seven eight two two eight at seven, Idaho,
November fifth, twenty twenty four. In fact, Creach was scheduled
for a second attempt of execution by lethal injection on
November thirteenth, twenty twenty four, but it was suspended due
to a stay imposed by Idaho's Federal District Court. Therefore,
at the current time, it appears that death by lethal
injection is an available means of execution in Idaho. Moreover,
even if it were not, any anxiety defendant may experience
from not knowing how he is going to be executed
does not implicate the Eighth Amendment. Idea at seven psychological
strain the subsequent nightmares and trauma creach experience. Preparing for
the failed executcution, and an anticipation of a second execution
attempt is not an Eighth Amendment violation. The facility for
the firing squad has not yet been built. The state
objected to live testimony by doctor Wolfe on grounds that
because the issue is not ripe, her opinions would not
aid the trier of fact in determining a fact of
consequence Ire seven oh two. The Court orally granted the objection,
finding doctor Wolf's affid David to be a sufficient proffer
for purposes of this motion. In fact, the U. S.
Supreme Court has never invalidated a state's chosen procedure for
carrying out a sentence of death as the infliction of
cruel and unusual punishment Blase five point fifty three, US
at forty eight. To prevail on such a claim, a
person must show a substantial risk of serious harm, an
objectively intolerable risk of harm that prevents prison officials from
pleading that they were subjectively blameless for purposes of the
Eighth Amendment ID at fifty, quoting Farmer versus Brennan, five
eleven US eight twenty five, eight forty two, eight forty six,
and nine. Simply because an execution method may result in pain,
either by accident or as an inescapable consequence of death,
does not establish the sort of objectively intolerable risk of
harm that qualifies as cruel and unusual Buckloo versus Prekith
five eighty seven US one nineteen, one thirty two, and
thirty three twenty nineteen. Rather, it forbids long disused unusual
forms of punishment that intensified the sentence of death with
a cruel super edition of terra pain or disgrace, quoting
Blase five point fifty three US at forty eight, Thomas j.
Concurring in judgment. Moreover, a requirement of all Eighth Amendment
method of execution claims is identifying an available alternative IDEA
one thirty six. As the Court pointed out in Buckloo,
distinguishing between constitutionally permissible and impervisible degrees of pain is
a necessarily comparative exercise to decide whether the state is
cruelly superrated pain to the punishment of death is in
something that can be accomplished by examining the state's proposed
method In a vacuum, but only by comparing that method
with viable alternatives Glossip, seven seventy six US at one
thirty five. Defendant acknowledges he has not identified an alternative method,
but intends his claim is distinct from the method of
execution claims in buck Law, Blaws and Glossip. He argues
Idaho's chosen methods are unconstitutional because they threaten Idaho citizens
with the means of execution that cannot be carried out
without causing undue pain. However, this is not a distinction
that can be drawn. Undue pain is precisely the question
that the foregoing method of execution cases addresses. To strike
a method of execution as unduly painful under the Eighth Amendment,
defendant must come forward with an alternative method. Has not
done so, thus foreclosing his claim order based on the
foregoing analysis, defendants death penalty motions are hereby denied. This
document was signed on November nineteenth of twenty twenty four,
and it was signed by Judge Hipler. All of the
information that goes with this episode can be found in
the description box.