Bryan Kohberger faces a judge as lawyers fight the death penalty

Student murder suspect Bryan Kohberger returns to court Thursday, where his defense hopes the death penalty will be taken off the table before he goes on trial in the stabbing deaths of four University of Idaho students.

The defense plans to call two expert witnesses at the hearing – forensic pathologist Dr. Barbara Wolf and University of Idaho law professor Aliza Cover, whose research has focused on the death penalty and constitutional law.

Kohberger's team filed a series of attacks on the possibility of the death penalty last month, challenging it as potentially cruel or unusual punishment, arguing that it violates “contemporary standards of decency” and claiming, among other things, that the new life The firing squad called in Idaho was unconstitutional.

“It appears that the defense is laying the groundwork for the appeal,” said Matt Mangino, a former district attorney for Lawrence County, Pennsylvania, and an expert in death penalty litigation. “Your recent arguments relate to an appeals court, not a trial court.”

This includes challenging almost all of the alleged aggravating factors and arguing that the firing squad is unconstitutional. Although they have had some successes, including getting rid of the burglary charge, which prosecutors agreed to, they face an uphill battle, Mangino said.

“It appears that the defense is laying the groundwork for the appeal,” said Matt Mangino, a former district attorney for Lawrence County, Pennsylvania, and an expert in death penalty litigation. “Your recent arguments relate to an appeals court, not a trial court.”

This includes challenging almost all of the alleged aggravating factors and arguing that the firing squad is unconstitutional. Although they have had some successes, including getting rid of the burglary charge, which prosecutors agreed to, they face an uphill battle, Mangino said.

Although Idaho only recently brought back the firing squad as an option, it is a reliable method that has been used both in the past and in modern times, he said.

“There was a pause in the death penalty in the early 1970s, and when the death penalty was reinstated a few years later, the first execution in this country was by firing squad,” he said.

He even wrote about an execution by firing squad in his book “The Executioner's Toll, 2010,” in which he examined every execution carried out in the United States that year.

He said he found one step taken by the defense legally interesting. To prevent the death penalty from being imposed arbitrarily, courts typically use two-stage procedures for death sentences, known as “two-stage trials,” with a guilt phase and a punishment phase.

“You make an interesting argument that the process should be, for lack of a better term, divided into three parts,” he told Fox News Digital.

The defense essentially proposed three phases, he said – a guilt phase, a new phase to establish the aggravating circumstances and then the penalty phase.

“That would really upend the entire process because the Supreme Court has said, 'Hey, split trials are a fair, less arbitrary way to do this,'” he said.

Under Idaho law, prosecutors had 60 days following Kohberger's indictment on May 22, 2023, to announce that they would seek the death penalty if convicted if they so wished.

About a month later, they sent that notice, claiming in court filings that the former doctor of criminology student “has demonstrated a propensity for murder, which is likely to pose a continuing threat to society.”

Kohberger is accused of killing Madison Mogen, 21, Kaylee Goncalves, 21, Xana Kernodle, 20, and Ethan Chapin, 20, in an attack at 4 a.m. on November 13, 2022. All four lived in a six-bedroom house just steps from the University of Idaho campus.

Two roommates survived the attack, including one who told prosecutors she heard someone crying and saw a masked man leaving.

Investigators found a Ka-Bar knife sheath under Mogen's body that had Kohberger's DNA on the snap, prosecutors alleged in court papers.

Kohberger studied for a doctorate. in criminology from neighboring Washington State University, less than 10 miles from the scene of the murders. He holds a master's degree in criminal justice from DeSales University in Pennsylvania.

A judge pleaded not guilty on his behalf at arraignment. His trial is expected to begin next year.

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