Bryan Kohberger’s Fight Against The Death Penalty: ‘Not A Realistic Option’

A judge will decide whether Bryan Kohberger will face the death penalty in his upcoming murder trial after the prosecution and defense debated the issue at a hearing on Thursday.

Kohberger, 29, is facing four counts of first-degree murder and one count of felony burglary. He is accused of fatally stabbing University of Idaho students Madison Mogen, Kaylee Goncalves, Xana Kernodle and Ethan Chapin in an off-campus residence in 2022.

Kohberger could face the death penalty if convicted. The defense has objected to the state’s intention to seek the death penalty in a series of motions.

The prosecution and defense presented their arguments to District Judge Steven Hippler on Thursday. After listening to both sides, Hippler said he would take the matter under advisement and issue a ruling at a later date.

Anne Taylor, Kohberger’s lawyer, argued that sitting on death row for decades without knowledge of if or how he will be executed could induce anxiety.

“I don’t believe that our Constitution allows for us to move forward and make him sit on death row for years and years, and the way Idaho is doing it right now isn’t really working,” Taylor said. “It’s not a realistic option, I think, to have him sit on death row and say Idaho’s going to figure out how to kill you at some point in the future in a way that isn’t cruel and unusual and a violation of rights.”

Taylor noted that the primary method of execution in the state was lethal injection, but the state also approved use of the firing squad after experiencing difficulties obtaining the drugs needed to administer a lethal injection. She also argued that the firing squad has not been built yet.

The prosecution argued that there could be alternative methods of execution in the future.

“You don’t know decades from now what an alternative might be, maybe they’ll have a better argument decades from now on the method of execution because maybe there will be another method,” Deputy Attorney General Jeffery Nye said.

Nye said that objections to the methods of execution should not take the death sentence out of consideration.

“You don’t get to, at the beginning, short circuit the whole thing and say death is off the table because the current method is unconstitutional,” Nye said.

The defense also argued that Idaho legislation does not do a sufficient job of narrowing down who is eligible for the death penalty.

“Instead of it being a situation where the worst of the worst are being charged with the death penalty, everyone falls within that category,” Elisa Massoth, another attorney for Kohberger, said. “And that cannot be remedied by anyone else other than the legislature, because that is their duty. And if there’s no narrowing and it’s arbitrary, that’s a basis for this court to strike the death penalty.”

Nye pushed back on the defense’s claim.

“If you have individually analyzed every single factor and every single one you found constitutional, then it doesn’t matter if in every case you could apply one of those factors, because that factor is a reason why that person is morally worthy of the death penalty,” Nye said. “And so it’s not an arbitrary and capricious system.”

Defendants convicted of first-degree murder in Idaho are eligible for the death penalty if the crime meets any of 11 aggravating factors.

Prosecutors have identified four aggravating factors in Kohberger’s case, which are “at the time the murder was committed, the defendant also committed another murder;” “the murder was especially heinous, atrocious or cruel, manifesting exceptional depravity;” “by the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life;” and “the defendant, by his conduct, whether such conduct was before, during or after the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.”

The defense challenged each of the mitigating factors, including the propensity to commit murder.

“I can’t tell you the number of times I’ve sat in court and listened to a prosecutor talk about at sentencing that my client or my client’s acts are the worst they’ve ever seen,” Taylor said. “And that can’t be true when you sit in court day after day after day and you hear about person after person after person. This statute doesn’t do anything to help a jury decide who’s the worst of the worst. This aggravator absolutely has to be struck. “

Kohberger’s legal team also argued that national opinion of the death penalty is changing.

“We are becoming somewhat alone in the world in terms of continuing to make use of the practice,” Jay Logsdon, an attorney for Kohberger, said. “The number of states that are still doing it is shrinking. So when you look at the total fabric, it’s our contention that we’ve reached the point where the death penalty really ought to be abolished.”

Nye pointed out that 27 states still administer the death penalty.

“We’re just nowhere near a national consensus that the death penalty is somehow immoral or improper or indecent,” Nye said.

Death Penalty Expert Weighs In

Robin Maher, executive director of the Death Penalty Information Center, spoke to Newsweek about what to expect from the hearing.

“The defense is doing what good lawyers do, which is to raise every possible legal issue associated with the possible penalty their client is facing, and to challenge them,” Maher said. “It’s really going to be up to the judge to decide how far he wants to take this. He could do a number of things, including ask for additional evidence to support some of the motions that they’re making.”

She said the arguments presented by the defense are commonly seen in death penalty cases.

“These are pretty typical arguments that are made in a lot of capital cases, although it’s rare to see this many motions made before a trial at a single hearing,” Maher said.

One of the defense’s main arguments is that capital punishment violates Kohberger’s constitutional rights.

“They are alleging that the death penalty as it is currently used is unconstitutional and should not be used in Mr. Kohberger’s case because it’s not consistent with evolving standards of decency, which is the standard that the United States Supreme Court uses when it assesses whether something is cruel and unusual under the Eighth Amendment,” Maher said. “And they’re supporting that argument by citing a variety of statistics and data that demonstrate the declining use of the death penalty over the past several decades and the low amount of public support there is for the death penalty currently.”

The defense has also raised concerns about the methods of execution used in Idaho, which are lethal injection and firing squad.

“They make arguments about both, alleging that they violate the Eighth Amendment, which is again making the argument that it’s cruel and unusual to use the firing squad or lethal injection,” Maher said. “So they’re throwing a lot of information at this judge to hopefully move the death penalty off the table.”

There are currently nine people on death row in Idaho. In total, 55 death sentences have been handed down in Idaho since 1972.

The state tried to execute Thomas Eugene Creech in February, but they were unable to find a vein to administer the lethal injection. The last inmate executed in the state was Richard Leavitt in 2012 by lethal injection.

The death penalty was taken out of consideration in another high-profile case in the state last year.

An Idaho judge ruled in March of last year that Lori Vallow Daybell could not face the death penalty if she were convicted of murder in the deaths of her two children. The decision came after new DNA evidence was discovered but could not be tested and admitted into court in time for the trial. Daybell was convicted on all charges and sentenced to life in prison.

Neama Rahmani, former federal prosecutor and the president of West Coast Trial Lawyers, previously told Newsweek that he thinks the death penalty will remain an option in the Kohberger case.

“As long as the government provides timely notice, which they have, and they comply with their other obligations, including their discovery obligations, they can seek the death penalty for a case like this where there’s a quadruple murder,” Rahmani said.

Newsweek reached out to the defense and prosecution for comment.

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