Prosecutors can’t use Bryan Kohberger’s autism against him to argue for the death penalty: judge

Prosecutors won’t be allowed to use accused killer Bryan Kohberger’s autism to argue to a jury that he deserves the death penalty in the University of Idaho quadruple homicide case.

Boise Judge Steven Hippler ruled Wednesday during a marathon hearing — where Kohberger’s lawyers argued to keep a slew of evidence out of his August trial — that prosecutors can’t use his diagnosis as an “aggravating factor” to argue he deserves capital punishment.

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Defense attorney Anne Taylor said that if Kohberger is convicted and the case moves to the death penalty phase of trial, she will ask a jury to consider the fact he is on the autism spectrum as a “mitigating factor” for why he shouldn’t receive be sentenced to death.

She wants to tell the panelists about how many of Kohberger’s actions and mannerisms come from his disorder, like the fact that he often doesn’t show emotions on his face, he frequently stays very still for long stretches and can tend to ramble on.

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Prosecutor Jeff Nye said his team didn’t intend to use Kohberger’s autism to argue for the death penalty because they had plenty of other much stronger evidence to make their case. But he also argued that the defense shouldn’t be able to use the diagnosis to argue for leniency either.

“The state has no plan to use his autism as an aggravating factor,” Nye said. “We have a lot better aggravating arguments than that he has level-one autism.”

Hippler said he’d eventually issue a more detailed order in writing.

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Lawyers on both sides fought tooth-and-nail at the Wednesday hearing as they geared up for the highly anticipated August 11 trial. Many of the issues, including whether an expert can testify that Kohberger’s DNA was found on a knife sheath left at the scene, could have a major impact on how the trial shakes out.

Kohberger lawyer Bicka Barlow claimed that a prosecution DNA expert witness shouldn’t be allowed to testify that she believes Kohberger’s DNA was left on a sheath found under one of the victim’s bodies because it’s impossible to know for sure when and how his DNA got there.

Barlow said that DNA could have been transferred if someone else touched him and then touched the sheath, casting uncertainty on a critical piece of the case against her client.

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But Nye countered that the scientist witness had worked in forensic DNA for decades and had enough expertise to be able to tell the jury her opinion — that because of the amount of DNA and the fact it was from a single source, she believes Kohberger left it there when he touched the sheath.

Hippler said he would issue a written ruling on the matter at a later date.

Prosecutors claim that Kohberger actually bought a Ka-Bar knife, sheath and sharpener on Amazon months prior to the killings. And after sifting through over a thousand tips about the horrific slayings, investigators were only able to firm up a single tip — one that helped them connect his DNA to the crime scene.

Other evidence Kohberger’s team wants to keep a jury from hearing about include: a recording of a 911 call; Kohberger’s 2020 college paper about testimony from a surviving roommate that she saw an intruder with bushy eyebrows that night; a selfie he took the day after the murders showing his dark and thick eyebrows; and weather data that calls into question his alibi that he was out driving and looking at the stars.

Kohberger lawyer Elissa Massoth petitioned Hippler about another trial issue — to allow his family to attend the trial and appealed to the judge’s “humanity” to allow the family to support him.

Prosecutors Ashley Jennings said their team planned to call some of his family members as witnesses at trial and said they shouldn’t be allowed into the courtroom until after their testimony concluded, to prevent them from being able to tailor their answers to either match or counter other testimony.

Hippler said he would rule later, but he asked prosecutors to consider calling any Kohberger family members early on in the case, and possibly even out of order, so the relatives could be present for the trial.

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“I can only imagine that the family of Mr. Kohberger is devastated by these things. It’s nothing that they did, and their ability to be here to see the trial is important,” the judge said.

The defense also asked the judge to keep the jury from hearing “inflammatory” terms about Kohberger like “murderer,” “sociopath” and “psychopath.”

Prosecutors assured the judge they would follow the rules of the court and would only use those types of terms during closing arguments — the only part of trial they would be allowed.

As to gruesome photos of the murder victims and the crime scene that defense said should be kept to a minimum, the judge said he’d rule on them on a case-by-case basis.

“Make no mistake, these murders, whoever did them, were … horrific. And I expect that the evidence will reflect that,” Hippler said.

Kohberger has pleaded not guilty to first-degree murder and burglary in the killings of Kaylee Goncalves, 21; Xana Kernodle, 20; Madison Mogen, 21; and Ethan Chapin, 20 on Nov. 13, 2022, inside an off-campus home in Moscow, Idaho.

Kohberger, 30, was in the process of getting his Ph.D. in criminology from Washington State University, a school that is just 10 miles from where the murders occurred.