4 Univ of Idaho Students Murdered, Bryan Kohberger Arrested, Moscow, Nov 2022 #84

[SpiderFalcon]

I think this is exactly why we keep hearing this from the defense:

Exculpatory Evidence will be found in the GJ proceeding somewhere.
Exculpatory Evidence will be found in BF's testimony.
Exculpatory Evidence will be found in the evidence yet to be handed over.
Exculpatory Evidence is likely somewhere in the 51 terabytes of evidence turned over.

Exculpatory Evidence is not the same thing as Mitigating Evidence but if the defense had been able to present all of this Exculpatory Evidence to the prosecution then I doubt the lead prosecutor would have filed for the DP.

Exculpatory Evidence and Mitigating Evidence are two different things. Exculpatory evidence is evidence that shows you did not commit the crime. Mitigating evidence is evidence presented at trial to mitigate your offense level (i.e., murder first vs. murder second) or sentencing to mitigate your sentence.

Criminal Appeal - Is there a difference between exculpatory evidence ...​

I also think the fact that the Defense HASN'T SAID ANYTHING says something to the Prosecution. The Defense has been all about "attacking" the discovery, questioning the discovery, questioning the "witnesses", piling on the paperwork. Which is exactly what they are supposed to do. But no showing of any evidence, exculpatory, mitigating, or otherwise. IMO, JMO, etc.

 

[Nila Aella]

I think this is exactly why we keep hearing this from the defense:

Exculpatory Evidence will be found in the GJ proceeding somewhere.
Exculpatory Evidence will be found in BF's testimony.
Exculpatory Evidence will be found in the evidence yet to be handed over.
Exculpatory Evidence is likely somewhere in the 51 terabytes of evidence turned over.

Exculpatory Evidence is not the same thing as Mitigating Evidence but if the defense had been able to present all of this Exculpatory Evidence to the prosecution then I doubt the lead prosecutor would have filed for the DP.

Exculpatory Evidence and Mitigating Evidence are two different things. Exculpatory evidence is evidence that shows you did not commit the crime. Mitigating evidence is evidence presented at trial to mitigate your offense level (i.e., murder first vs. murder second) or sentencing to mitigate your sentence.

Criminal Appeal - Is there a difference between exculpatory evidence ...​

Exactly, so why even add that last paragraph on the notice of intent to seek the DP?

 

[Sundog]

Perhaps a little push on AT to file Notice of Alibi:

I think it is more about evidence of mitigating circumstances, not alibi, since this will come up again during the sentencing jury trial. Evidence of mitigating circumstances may be considerd by the sentencing jury, so to me it would seem prudent for prosecutors to look into this before deciding if this should be a death-eligible case.

 

[TL4S]

So, in the state's filing that they are going for the death penalty, they listed specific statutory aggravating circumstances from the Idaho code that they felt existed in this case. I'm copying all the factors from the Idaho code and bolding the ones that were specifically mentioned by the prosecution as being relevant to this case so that we can see them in context/comparison to all the factors that are allowed in state code:

(bold, italics, and underlining are mine)
source for Idaho code Section 19-2515 – Idaho State Legislature

(9) The following are statutory aggravating circumstances, at least one (1) of which must be found to exist beyond a reasonable doubt before a sentence of death can be imposed:

(a) The defendant was previously convicted of another murder.
(b) At the time the murder was committed the defendant also committed another murder.
(c) The defendant knowingly created a great risk of death to many persons.
(d) The murder was committed for remuneration or the promise of remuneration or the defendant employed another to commit the murder for remuneration or the promise of remuneration.
(e) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
(f) By the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.
(g) The murder was committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, kidnapping or mayhem and the defendant killed, intended a killing, or acted with reckless indifference to human life.
(h) The murder was committed in the perpetration of, or attempt to perpetrate, lewd and lascivious conduct with a minor, sexual abuse of a child under sixteen (16) years of age, ritualized abuse of a child, sexual exploitation of a child, sexual battery of a minor child sixteen (16) or seventeen (17) years of age, or forcible sexual penetration by use of a foreign object, and the defendant killed, intended a killing, or acted with reckless indifference to human life.
(i) 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.
(j) The murder was committed against a former or present peace officer, executive officer, officer of the court, judicial officer or prosecuting attorney because of the exercise of official duty or because of the victim’s former or present official status.
(k) The murder was committed against a witness or potential witness in a criminal or civil legal proceeding because of such proceeding.

So when a DP case goes to trial, does the prosecution only have to prove one of the aggravating factors they've listed, in order to get a death sentence, or must they prove them all?

 

[Counttrarian]

If he is the perpetrator of this heinous crime may he be brought to justice.
However, those who advocate our civil liberties and right to privacy should be very wary about the methods and sequence of such methods the FBI deployed (local LE was just along for the ride).
As I mentioned a few months ago, if he is found guilty, absent to some fate befalling him while incarcerated, this case will likely wind-up dragging on for years, perhaps all the way to the SCOTUS. This has all the markings of becoming a test case.

 

[kittythehare]

https://twitter.com/x/status/1673446322047963138

illegible

 

[Sundog]

So when a DP case goes to trial, does the prosecution only have to prove one of the aggravating factors they've listed, in order to get a death sentence, or must they prove them all?

They only need to prove one aggravating circumstance charge, beyond a reasonable doubt.

The prosecution has to declare which aggravating circumstance they are charging BK with at the time that he is charged. Then they have to provide evidence for that charge and the sentencing jury must determine that the prosecution has made the case beyond a reasonable doubt for the aggravating circumstance(s) BK was charged with.

Does anyone recall what aggravating cirumstance(s) that BK has been charged with at his preliminary hearing? That is the charge they will have to prove to the sentencing jury in order for the sentencing jury to consider whether or not BK is eligible for the death penalty sentence (if BK is found guilty at his trial).

 

[arielilane]

Looks like the prosecution just filed a Notice of Idaho code 18-4004A Notice of Intent to seek the Death Penalty

Yes, @SpiderFalcon, Brian reported this an hour ago, and Brian is filling in for Ashley if anyone is interested in watching him cover this important topic tonight.


Prosecutors intend to seek the death penalty in Bryan Kohberger case. New filing: https://coi.isc.idaho.gov/docs/case/CR29-22-2805/062623%20Notice%20Pursuant%20to%20Idaho%20Code%2018-4004A.pdf I’m filling in for Banfield tonight at 10pmET on @NewsNation and we will discuss what happens next.

https://twitter.com/x/status/1673441788378398722

https://twitter.com/BrianEntin

 

[kittythehare]

Perhaps a little push on AT to file Notice of Alibi:

Section 19-519 – Idaho State Legislature

legislature.idaho.gov

https://coi.isc.idaho.gov/docs/case/CR29-22-2805/060923%20Motion%20for%20an%20Exception%20or%20in%20the%20Alternative%20to%20Extend%20Time%20for%20Compliance%20with%20IC%2019-519.pdf

AND:

https://coi.isc.idaho.gov/docs/case/CR29-22-2805/061323%20States%20Response%20to%20Defs%20Motion%20for%20an%20Exception%20or%20in%20Alternative%20to%20Extend%20Time%20for%20Compliance.pdf

It's good.
Note they refer to future dangerousness.
It's appropriate.

 

[TL4S]

They only need to prove one aggravating circumstance charge, beyond a reasonable doubt.

The prosecution has to declare which aggravating circumstance they are charging BK with at the time that he is charged. Then they have to provide evidence for that charge and the sentencing jury must determine that the prosecution has made the case beyond a reasonable doubt for the aggravating circumstance(s) BK was charged with.

Does anyone recall what aggravating cirumstance(s) that BK has been charged with at his preliminary hearing? That is the charge they will have to prove to the sentencing jury in order for the sentencing jury to consider whether or not BK is eligible for the death penalty sentence (if BK is found guilty at his trial).

So, they only need one, but if the prosecution chose to list five factors, factors b, e ,f ,g, and i, then do they have to prove them all?

 

[kittythehare]

I also think the fact that the Defense HASN'T SAID ANYTHING says something to the Prosecution. The Defense has been all about "attacking" the discovery, questioning the discovery, questioning the "witnesses", piling on the paperwork. Which is exactly what they are supposed to do. But no showing of any evidence, exculpatory, mitigating, or otherwise. IMO, JMO, etc.

Yep.
Not they got some REAL work to focus themselves.

 

[Sundog]

Exactly, so why even add that last paragraph on the notice of intent to seek the DP?

I think the prosecution wants to or has to make it clear that they would have considered mitigating circumstances if any had been presented by the defendant or his attorneys.

I can see why AT would not provide any mitigating circumstances to the prosecution at this stage of the process. She gets another bite of the apple (re: mitigating circumstances defense) during the sentencing trial if BK is found guilty or if later he pleads guilty. BK can even testify to the sentencing jury about his mitigating circumstances, not under oath, and he can't be cross examined. And AT can call witnesses to provide evidence of mitigating circumstances at that time.

So I think that a responsible prosecution has to state that they didn't receive any mitigating evidence from the defense, and so there were no mitigating circumstances to consider when they deliberated and made their decision to make this a death-eligible case.


JMO.

 

[Cool Cats]

So when a DP case goes to trial, does the prosecution only have to prove one of the aggravating factors they've listed, in order to get a death sentence, or must they prove them all?

No.

This only applies to the Sentencing Phase Trial not the Guilt Phase Trial.

DP cases always have 2 trials.

1.) Guilt Phase Trial which is the same for all murder trials. Evidence is presented by prosecutors to show guilt and defense gives their defense against this evidence. Defense presents their own evidence and witnesses including expert witnesses.

2.) Sentencing Phase Trial. This is if the defendant is found guilty of murder in the Guilt Phase Trial.

Then a jury has to decide if the defendant gets LWOP or a death sentence. This is when all aggravating factors and mitigating factors must be considered.

The prosecution will present all the aggravating factors and the defense will present all the mitigating.

Prosecution = Aggravating Factors which increases the sentence

Defense = Mitigating Factors which decrease the sentence

2 Cents

 

[Sundog]

So, they only need one, but if the prosecution chose to list five factors, factors b, e ,f ,g, and i, then do they have to prove them all?

For a defendant to be eligible for the death penalty, the sentencing jury has to decide that at least one aggravating circumstance has been proven beyond a reasonable doubt. Otherwise the judge will sentence the defendant to life without parole.

JMO, not a lawyer, but posted 24 page document above on Idaho law related to death-eligible cases and instructions to the sentencing jury at a sentencing trial.

 

[schooling]

Perhaps a little push on AT to file Notice of Alibi:

Section 19-519 – Idaho State Legislature

legislature.idaho.gov

https://coi.isc.idaho.gov/docs/case/CR29-22-2805/060923%20Motion%20for%20an%20Exception%20or%20in%20the%20Alternative%20to%20Extend%20Time%20for%20Compliance%20with%20IC%2019-519.pdf

AND:

https://coi.isc.idaho.gov/docs/case/CR29-22-2805/061323%20States%20Response%20to%20Defs%20Motion%20for%20an%20Exception%20or%20in%20Alternative%20to%20Extend%20Time%20for%20Compliance.pdf

That's what it sounded like to me too!

IMO, and only my opinion. The defense is really hesitant to offer one up without knowing what the prosecution has. As the notice would require BK to state where he was on the night of the murders. And if the prosecution then turns over evidence that directly disputes it...

This is what all of the delay tactics are about. They want to see the prosecutors fulls hand.

 

[Warwick7]

I also think the fact that the Defense HASN'T SAID ANYTHING says something to the Prosecution. The Defense has been all about "attacking" the discovery, questioning the discovery, questioning the "witnesses", piling on the paperwork. Which is exactly what they are supposed to do. But no showing of any evidence, exculpatory, mitigating, or otherwise. IMO, JMO, etc.

Excellent post!

 

[TL4S]

No.

This only applies to the Sentencing Phase Trial not the Guilt Phase Trial.

DP cases always have 2 trials.

1.) Guilt Phase Trial which is the same for all murder trials. Evidence is presented by prosecutors to show guilt and defense gives their defense against this evidence. Defense presents their own evidence and witnesses including expert witnesses.

2.) Sentencing Phase Trial. This is if the defendant is found guilty of murder in the Guilt Phase Trial.

Then a jury has to decide if the defendant gets LWOP or a death sentence. This is when all aggravating factors and mitigating factors must be considered.

The prosecution will present all the aggravating factors and the defense will present all the mitigating.

Prosecution = Aggravating Factors which increases the sentence

Defense = Mitigating Factors which decrease the sentence

2 Cents

So the DP can only be on the table at sentencing if the prosecution seeks the DP to begin with?

 

[Sundog]

It's good.
Note they refer to future dangerousness.
It's appropriate.

dbm
misunderstood which document was being referred to

 

[kittythehare]

Prosecutors called the murders “especially heinous” and said Kohberger “has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.”

Other statutes were cited as reasons why prosecutors will seek to have Kohberger put to death for the murders of Maddie Mogen, Kaylee Goncalves, Ethan Chapin and Xana Kernodle.

Kohberger has pleaded not guilty.

The revelation from Kohberger’s lawyers came in response to a motion for a protective order sought by prosecutors for Investigative Genetic Genealogy used in the case. Prosecutors do not want to turn over the information developed by the FBI to Kohberger’s defense team. Prosecutors claim records were not kept and they want to protect information of Kohberger’s relatives.


A source told Law&Crime earlier this year that Kohberger “bleached” his car. Prosecutors have not revealed whether they believe a cleanup occurred.


“The defense is not entitled to grand jury materials as a regular part of discovery. And really, this strikes me as a motion where they’re more trying to make a record than anything else,” Bogen said.

The defense, which is exercising Kohberger’s right to a speedy trial, says the dispute over grand jury materials is impacting their ability to prepare for trial. The trial is set for October.

Prosecutors to seek death penalty against Bryan Kohberger

The announcement comes days after Kohberger's defense filed a document saying no DNA belonging to the victims was found in his car, apartment or office.

lawandcrime.com

 

[arielilane]

Bryan Kohberger will be in court again on Tuesday; here's what to expect

Bryan Kohberger, the 28-year-old suspect in the Moscow murders, is requesting a stay of proceedings and the release of grand jury materials.

www.krem.com

6/26/2023

MOSCOW, Idaho — The man accused of murdering four University of Idaho students last November will appear in Latah County Court on Tuesday for a hearing related to his indictment. [...]

According to Cornell Law School, a stay of proceedings is a ruling by a court to stop or suspend a proceeding or trial temporarily or indefinitely.

Represented by attorney Anne C. Taylor, Kohberger has filed a reply in response to the State's argument that he is only entitled to an audio recording or a transcript of the proceedings and grand juror notes.

According to Idaho Criminal Law (ICR) 6.3.(c), "whatever was said or done in the grand jury proceedings" must be kept secret. Only members of the grand jury, supporting witnesses called by the prosecution and the prosecutor themselves can be present during the hearing. [...]