Bryan Kohberger's fight against the death penalty: “Not a realistic option”

A hearing Thursday could determine whether Bryan Kohberger faces the death penalty in his upcoming murder trial.

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

Kohberger could face the death penalty if convicted. The defense has raised objections in a series of motions to the state's intent to seek the death penalty.

The prosecution and defense presented their arguments to District Judge Steven Hippler on Thursday.

Anne Taylor, Kohberger's lawyer, argued that sitting on death row for decades without knowing whether or how he will be executed could cause fear.

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

Taylor pointed out that the primary method of execution in the state is lethal injection, but the state also authorized the use of the firing squad after having difficulty obtaining the drugs needed to administer a lethal injection. She also argued that the firing squad had not yet been set up.

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 decades from now they'll have a better argument for the method of execution because maybe there will be another method,” said Assistant Attorney General Jeffery Nye.

Nye said objections to the execution methods should not ignore the death sentence.

“You can't just short-circuit the whole thing right at the beginning and say death is off the table because the current method is unconstitutional,” Nye said.

The defense also argued that Idaho law does not adequately limit who is eligible for the death penalty.

“Instead of it being a situation where the worst of the worst are charged with the death penalty, everyone falls into that category,” said Elisa Massoth, another of Kohberger’s lawyers. “And no one other than the legislature can fix that, because that is their duty. And if there is no restriction and it is arbitrary, that is a basis for this court to impose the death penalty.”

Nye rejected the defense's claim.

“If you have analyzed every single factor individually and every single one that you have found to be constitutional, then it does not matter whether you could apply one of those factors in every case, because that factor is a reason why that person's death is moral is worth punishment,” Nye said. “So it is not an arbitrary and capricious system.”

Death penalty expert speaks out

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

“The defense does what good lawyers do, which is to raise and challenge all possible legal issues related to the possible sentence their client faces,” Maher said. “It will really be up to the judge to decide how far he wants to go. He could do a number of things, including asking for additional evidence to support some of the claims they are making.”

She said the defense would also use expert testimony to support its arguments.

“These are fairly typical arguments that are made in many capital cases, although it is rare for so many pre-trial motions to be made in a single hearing,” Maher said.

One of the defense's main arguments is that the death penalty violates Kohberger's constitutional rights.

“They assert that the death penalty as currently applied is unconstitutional and should not be used in Mr. Kohberger's case because it is inconsistent with evolving standards of decency, the standard adopted by the United States Supreme Court at the “Something is cruel and unusual under the Eighth Amendment,” Maher said. “And they support this argument by citing a variety of statistics and data showing the decline in the use of the death penalty over the past few decades and the low level of public support that currently exists for the death penalty.”

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

“They argue both, claiming that they are violating the Eighth Amendment, which in turn makes the argument that it is cruel and unusual to use a firing squad or lethal injection,” Maher said. “So they're throwing a lot of information at this judge to hopefully get 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 couldn't find a vein to administer the lethal injection. The last inmate executed in the state was Richard Leavitt by lethal injection in 2012.

The death penalty was dropped last year in another high-profile case in the state.

A judge in Idaho ruled last March that Lori Vallow Daybell would not face the death penalty if convicted of murdering her two children. The decision came after new DNA evidence was discovered but could not be tested and admitted in court in time for trial. Daybell was convicted on all counts and sentenced to life in prison.

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

“As long as the government gives timely notice of what is available to them and meets their other obligations, including their disclosure obligations, they can seek the death penalty in a case like this where there is a quadruple murder,” Rahmani said.

Newsweek has reached out to the defense and prosecution for comment.

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