Bryan Kohberger's fight against death penalty gets day in court; expert skeptical of defense's arguments

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

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 examined capital punishment and constitutional law.

Kohberger's team filed a number of attacks on the possibility of capital punishment last month, challenging it as a potentially cruel or unusual punishment, arguing that it goes against "contemporary standards of decency" and asserting that Idaho's newly revived firing squad is unconstitutional, among other arguments. 

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Bryan Kohberger, left, listens as defense attorney Jay Logsdon, right, presents oral arguments Oct. 26, 2023, in Moscow, Idaho. (Kai Eiselein-Pool/Getty Images)

"It appears the defense is laying the groundwork for appeal," said Matt Mangino, a former Lawrence County, Pennsylvania, district attorney and expert on capital punishment litigation. "Their most recent arguments are for an appellate court not a trial court."

Those include taking issue with nearly all of the alleged aggravating factors and arguing that the firing squad is unconstitutional. While they've had some success, including dropping the aggravator for burglary that prosecutors agreed with, they face an uphill battle, Mangino said.

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"There has never been a method of execution determined by the Supreme Court to be unconstitutional," he told Fox News Digital. "Whether someone has been hanged or gassed or electrocuted or shot, the Supreme Court has never said that any method like that, and also lethal injection, is unconstitutional."

Madison Mogen, top left, smiles on the shoulders of her best friend, Kaylee Goncalves, as they pose with Ethan Chapin, Xana Kernodle and two other housemates in Goncalves' final Instagram post, shared the day before the four students were stabbed to death. (@kayleegoncalves/Instagram)

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

"There was a pause in the death penalty in the early '70s, and when the death penalty came back a few years later, the first execution in this country was by firing squad," he said.

Bryan Kohberger is in the custody of the Ada County Sheriff's Office, according to online jail records. (Ada County Sheriff's Office)

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He even wrote about a firing squad execution in his book, "The Executioner's Toll, 2010," which examined every execution carried out in the U.S. that year.

He did find one move by the defense legally interesting, he said. Courts commonly use two-step proceedings, known as "bifurcated trials," with a guilt phase and a penalty phase for capital cases to prevent the death penalty from being handed down arbitrarily.

Bryan Kohberger's defense attorneys, from left, Anne Taylor, Elisa Massoth and Jay Logsdon depart the Latah County Courthouse in Moscow, Idaho, June 27, 2023. (Derek Shook for Fox News Digital)

"They're making an interesting argument that the process should be trifurcated, for lack of a better term," he told Fox News Digital. 

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The defense has essentially proposed three phases, he said — a guilty phase, a new phase to determine the aggravating circumstances and then the penalty phase.

Bryan Christopher Kohberger arrives at the Monroe County Courthouse in Stroudsburg, Pa., Jan. 3, 2023, before waiving extradition to Idaho to face murder charges in the stabbing deaths of four university students. (The Image Direct for Fox News Digital)

"That would really sort of turn the whole process on its head, because the Supreme Court has said, ‘Hey, bifurcated trials are a fair, less arbitrary way to do this,’" he said.

Under Idaho law, prosecutors had 60 days after Kohberger's arraignment May 22, 2023, to announce they would seek the death penalty upon conviction if they intended to do so.

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Investigators set up outside the home where four University of Idaho students were slain in November 2022 in Moscow, Idaho, Nov. 1, 2023. (Derek Shook for Fox News Digital)

About a month later, they sent that notice, alleging in court filings that the former criminology Ph.D. student "has exhibited a propensity to commit murder, which will probably constitute a continuing threat to society."

Kohberger is accused of killing Madison Mogen, 21, Kaylee Goncalves, 21, Xana Kernodle, 20 and Ethan Chapin, 20, in a 4 a.m. attack Nov. 13, 2022. All four were staying in a six-bedroom home just steps from the University of Idaho campus.

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

Police search a home in Moscow, Idaho, Nov. 14, 2022, where four University of Idaho students were killed. (Derek Shook for Fox News Digital)

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

Kohberger was studying for a Ph.D. in criminology at neighboring Washington State University, less than 10 miles from site of the killings. He has a master's degree in criminal justice from DeSales University in Pennsylvania.

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