BOISE, Idaho — Attorneys for Moscow murder suspect Bryan Kohberger, in their latest attempt to avoid capital punishment for their client if he is convicted, have asked the judge to consider setting a new legal precedent in Idaho regarding how autism is classified in death penalty cases.

The 30-year-old’s public defense team asked 4th District Judge Steven Hippler to remove consideration of the death penalty, and its motion hinges on the premise that a U.S. Supreme Court ruling on intellectual disabilities should be expanded to include people with autism spectrum disorder. That 2002 decision concluded that people with severe intellectual impairment must be exempt from a death sentence.

His attorneys argued in filings last month that Kohberger’s autism diagnosis shares similarities with an intellectual disability, and “exposes him to the unacceptable risk” that he’ll be wrongfully convicted of murder and sentenced to death. He faces four counts of first-degree murder in the killing of four University of Idaho students, and if he’s convicted, prosecutors intend to seek the death penalty.

In November 2022, the four students were found stabbed to death in an off-campus home in Moscow, roughly nine miles away from Pullman, where Kohberger was studying criminology at Washington State University. The students were: Madison Mogen, 21, of Coeur d’Alene; Kaylee Goncalves, 21, of Rathdrum; Xana Kernodle, 20, of Post Falls; and Ethan Chapin, 20, of Mount Vernon, Washington.

Kohberger’s attorneys have been trying — and failing — to remove the death penalty as an option. The defense filed a slew of motions, including arguments that capital punishment is unconstitutional, breaks with evolving standards of decency, violates international law and is arbitrarily applied.

But Hippler, who presides over cases in Ada County, where the case was moved after a change of venue was granted, wasn’t persuaded. He denied each one of the defense’s requests to keep their client from possibly being on death row.

Now the defense has turned to the U.S. Supreme Court case Atkins v. Virginia. Executing people with intellectual disabilities violates the Eighth Amendment regarding cruel and unusual punishment, the justices ruled, and Kohberger’s lead attorney, Anne Taylor, has argued that the ruling also should apply to those with autism.

“Mr. Kohberger’s autism spectrum disorder prevents him from being sentenced to death in a manner that accords with the constitutional requirements of proportionality and reliability,” Taylor wrote in her motion to strike the death penalty.

Attorneys for the defense and prosecution are scheduled to argue a litany of motions, including the defense’s latest request to strike the death penalty, at Kohberger’s next hearing, which is next week. Despite opposition from the prosecution, Kohberger’s attorneys also asked Hippler to allow expert testimony about their client’s autism, along with diagnoses for obsessive-compulsive disorder and developmental coordination disorder.

Kohberger’s scheduled to appear at the Ada County Courthouse at 9 a.m. on Wednesday, April 9. Starting this month, Kohberger’s hearings will be livestreamed on the court’s website: coi.isc.idaho.gov/docs/Stream/District-4/District-4.html. His trial is set for this summer, with jury selection beginning July 30.

Kohberger’s attorneys, prosecutors debate Supreme Court ruling

Prosecutors said in their responding filing that the defense’s own arguments to strike the death penalty contradict precedent set by not only the Idaho Supreme Court, but also the U.S. Supreme Court. They “failed entirely” to demonstrate any type of universal agreement that people on the autism spectrum should be barred from facing capital punishment, the filing added.

“The only mental disability that precludes imposition of the death penalty is intellectual disability,” according to briefs signed by Latah County Prosecutor Bill Thompson and Special Assistant Attorney General Jeff Nye.

Two legal experts told the Idaho Statesman that, absent of cognitive or mental deficits, the precedent set in Atkins v. Virginia likely won’t be enough to take the death penalty off the table for Kohberger, although both didn’t discount the challenges people with autism face in the legal system.

“There are aspects of autism in different ways that might cause potential issues in capital settings, in representation and things like that,” said Colleen Berryessa, Rutgers University School of Criminal Justice associate professor.

Berryessa authored a toolkit — which the defense cited in its filing — to help judges better understand defendants with autism, but she said in an interview that “the actual application of Atkins in higher functioning autism cases is not something that people are talking about.”

University of Virginia research assistant professor Rose Nevill, a licensed clinical psychologist whose research focuses on enhancing evaluations for people with autism, said there’s strong reasoning to expand Atkins v. Virginia to include people with all intellectual and developmental disabilities — including autism.

Nevill, who directs the UVA Autism Research Core, explained there are several reasons to broaden the legal precedent to bar all people with intellectual and developmental disabilities from facing the death penalty. This includes concerns that their differences in cognition, communication and socialization would affect how they present themselves during trial, which Nevill said is “highly likely” to lead jurors to perceive them negatively.

Legal experts interviewed by the Statesman echoed Nevill’s concerns regarding how jurors could view Kohberger.

Nevill said people with intellectual and developmental disabilities have a harder time understanding social norms, and also have differences in the way they process information, which can make it harder for them to understand laws and regulations. She added that these views were her own opinions and not reflective of the University of Virginia’s position.

They also have social difficulties and have a harder time understanding when they are being manipulated, Nevill said. So when prosecuting criminal cases against people with autism, she said, it’s important to consider the intention behind their alleged crime and whether their “black and white, rigid thinking” could have allowed someone else to influence them greatly.

Someone with autism might easily have an above-average IQ, Nevill said, but that doesn’t always translate to them having above-average adaptive functioning or the ability to perform everyday tasks.

“His lawyers can and should emphasize impairment in adaptive functioning,” she told the Statesman. “Many autistic people have adaptive functioning scores lower than intellectual quotient — in other words, many autistic adults have a reduced ability to function independently in society and that ability does not match their overall intellect.”

Kohberger struggles ‘in the real world of daily living’

One of Kohberger’s attorneys, Elisa Massoth, pointed to concerns about his adaptive functioning in a response filing. Massoth said that despite Kohberger’s high IQ, he struggles “in the real world of daily living, self-care, socialization and communication.”

“The state seeks death when Mr. Kohberger is a person with an intellectual and neurodivergent physical disability,” she wrote.

On the off chance Hippler strikes the death penalty, Berryessa said his decision likely would establish a legal precedent in Idaho. While not binding to jurisdictions outside the state, it could give attorneys with similar clients a model to cite when crafting arguments.

Berryessa said that “it likely would be influential to how defense attorneys consider their cases involving defendants with autism in capital cases” if Hippler were to rule in favor of the defense.

Concerns raised in the Atkins v. Virginia ruling trace back to intellectual disability. Thompson and Nye said that precludes Kohberger, since he has the least severe form of autism without accompanying intellectual impairment. Kohberger’s IQ of 119 is far above the required IQ of 70 or lower to prove the state’s legal definition of an intellectual disability, the filing said.

But the Atkins standard is “much more than low IQ,” the defense argued. Massoth said Kohberger fits the criteria established in Atkins v. Virginia through impairment in communication, reasoning, social skills and understanding the reactions of others.

Autism isn’t “something one outgrows,” Massoth wrote, adding that since a young age, Kohberger was treated as a child with special needs. For example, she said Kohberger received reading support, speech therapy, reminders to stay on task, extra time for schoolwork and organizational support.

For someone to receive a diagnosis of intellectual disability, they must have a standard IQ and adaptive functioning scores at or below 70, as the prosecution said. Which means someone can receive an intellectual disability diagnosis only if they have the delayed ability to think, reason and function independently in society, Nevill said. The delays also have to be present since childhood.

Testing showed that Kohberger’s IQ was lower as a child, but it was still above 70, according to a filing. It’s unclear what he scored on an adaptive functioning assessment.

Based on that, Nevill said, Kohberger wouldn’t meet the criteria for an intellectual disability, though she said his obsessive-compulsive disorder could increase the odds of him having adaptive deficits.

Kohberger’s appearance, behavior are ‘irrelevant’: prosecution

Kohberger will be under a microscope from the start of his soon-approaching trial, his attorneys argued.

“The minute that jury selection begins, jurors will begin to study and analyze Mr. Kohberger’s physical presence,” Massoth wrote. “They will watch his every move and pass judgment on him every minute of the jury trial simply based on how he looks and reacts to the presentation of certain evidence and comments about him.”

Because of that, Massoth wrote in a March 17 filing that Kohberger must be able to present expert testimony. Jurors aren’t expected to understand neurological and mental disorders like autism and obsessive-compulsive disorder, so testimony from two of the defense’s expert witnesses must be allowed, she argued.

“To exclude this evidence will result in unfair bias that could cause a wrongful conviction,” Massoth wrote.

Prosecutors said they aren’t aware of any legal rule that allows Kohberger to present evidence explaining how his physical mannerisms or behaviors might appear in front of the jury. Thompson also argued in a March 24 response filing that unless Kohberger is testifying, his appearance and behavior are “irrelevant and not evidence.”

“Not only would this type of evidence be completely irrelevant and immaterial to the legal and factual issues in this case — whether the defendant committed four murders and burglary — it would more likely confuse the issues, mislead the jury and play to the jury’s sympathies,” Thompson wrote.

There are ways for defense attorneys to present information about Kohberger’s behavior to the jury, Berryessa said, but it can be more challenging since it’s not directly related to the case. In fact, the prosecution wants Hippler to prohibit the defense from offering any explanation about his possible appearance or behavior.

Both Berryessa and Nevill raised concerns about the way jurors might perceive someone with autism. The main behaviors, like social communication differences and repetitive interests, Nevill said, tend to put those people at a higher risk of becoming involved with the criminal justice system, even though they are no more likely to commit crimes than neurotypical people.

“The reason for that is because autistic people, just in the core features of their diagnosis, tend to do a lot of things that people who are unfamiliar with autism tend to find suspicious,” Nevill said. “In the situation of a jury (that) would be quite disadvantageous for Kohberger.”

Kohberger’s flat affect, intense gaze, awkward body posture, stillness and inability to show emotion are factors the public already views as indicators of his guilt, Massoth said. She’s concerned those biases will bleed into the courtroom and sway jurors toward a conviction, the filing added.

Massoth also pointed to an article by the founders of the Mental Disability Law and Policy Associates, which found that if juries aren’t informed of a defendant’s diagnoses, they might interpret the person’s demeanor negatively and it could have a “detrimental implication,” the filing said.

“Should he be convicted of this crime, his neurological, physical disorder may very well be the reason the jury misjudges him,” Massoth wrote.

Kohberger’s autism ‘reduces his culpability,’ defense says

The jury selection process is an initial way for the defense to bring up Kohberger’s autism while unpacking potential jurors’ attitudes, said Daniel Medwed, a criminal justice and law professor at Northeastern University in Boston.

He told the Statesman in an interview that one of the questions the defense could ask is whether jurors know someone with autism, in an attempt to find people who are more empathetic versus people who might have stereotypical views of autism.

“I think the risk, of course, is if he presents as sort of being emotionless, and not responding to some of the testimony in a way that would reflect empathy, that the jurors would hold it against him,” Medwed said by phone.

To be impaneled, jurors basically have to be “a blank slate,” Medwed said. He said the 12 jurors, along with a couple of alternates, have to be objective; can’t have too much outside knowledge of the case; and have to be open to the death penalty but not firmly opposed.

Medwed said it’s possible that to mitigate any concerns, the judge could choose to inform jurors about Kohberger’s disorder and how it affects the way he carries himself, while adding that they shouldn’t hold it against him during the trial. It also could be brought up in opening statements — as well as during sentencing, of course, according to Medwed.

“That’s going to be one of the big mitigating factors,” Medwed said, referring to Kohberger’s autism diagnosis.

Berryessa also addressed misunderstandings around the autism spectrum. A diagnosis can be perceived as an “extremely, extremely sympathetic characteristic,” she told the Statesman, but some negative views of autism are prevalent. Decades-old research that Berryessa said wasn’t well-conducted falsely drew a connection between autism and violence.

Although misconceptions about autism aren’t as pervasive as they once were, Berryessa said they can be very stigmatizing and, in a criminal justice setting, can lead judges or attorneys to believe someone might not be able to control their behavior or be rehabilitated.

“There can be kind of this double cutting effect,” she said. ”It can be extremely helpful to contextualize the information and especially the behaviors of the person ... but it also depending on the person who’s understanding that information — as a juror, as a judge, as kind of anybody in the lay public — that they might view that as being a negative characteristic.”

Kohberger’s attorneys echoed that. In their Feb. 24 filing, Taylor wrote that both courts and academics have held that presenting mitigating evidence to a jury, such as a mental illness or intellectual disabilities, is a “two-edged sword” that increases the likelihood a defendant will be seen as dangerous.

“Kohberger’s autism spectrum disorder reduces his culpability, negates the retributive and deterrent purposes of capital punishment, and exposes him to the unacceptable risk that he will be wrongfully convicted and sentenced to death,” she wrote.

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