BOISE, Idaho — Bryan Kohberger’s defense team is considering whether to assert a legal precedent set in another high-profile Idaho murder case in one more push to drop the death penalty as a possible sentence at trial.

Attorneys for the man charged with killing four University of Idaho students allege that the prosecution failed to meet the deadline to turn over its list of experts for trial and related information through the legal process known as discovery. The judge who oversaw Lori Vallow Daybell’s murder trial removed the death penalty as a sentencing option because of a similar delay from prosecutors in that case, Kohberger’s defense said in a court filing.

His attorneys have yet to move for such a court sanction. They specifically claimed that the state’s expert witness briefs were overly broad and did not address the scope of the opinions those called to testify may offer at trial. If these discovery deficiencies are not resolved, the defense’s request to strike the death penalty will be “forthcoming,” Kohberger’s legal team wrote.

In 2023, Judge Steven Boyce, of the 7th Judicial District in Eastern Idaho, removed the death penalty in Lori Daybell’s trial. He made the unprecedented decision in the state when, shortly before trial, prosecutors disclosed thousands of documents and more than 100 hours of recorded jail calls through discovery that “were clearly past the deadline,” Boyce said.

Lori Daybell, 51, was convicted of murder in the deaths of two of her children and sentenced to life in prison without the possibility of parole. Her husband, Chad Daybell, 56, was convicted last year of murder in the death of his previous wife and the two children, and he was sentenced to death. Vallow Daybell now awaits trial in Arizona on unrelated charges of conspiracy to commit murder and plans to act as her own attorney.

Kohberger’s public defense team has tried, but failed, to eliminate the death penalty as a sentencing option if he is convicted of murder. To no avail, they argued that capital punishment is unconstitutional, breaks with evolving standards of decency and is arbitrarily applied. All were rejected by Ada County 4th District Judge Steven Hippler, who is handling the closely watched case.

Now, Kohberger’s defense argues that it has additional legal grounds to ask the judge to consider dumping the death penalty. State attorneys prosecuting Kohberger refute that they did not fully meet their discovery burden and objected to a request for sanctions from his attorneys.

“Failure to properly disclose experts is arguably more prejudicial than late disclosed jail calls,” the defense wrote.

Kohberger, 30, is accused of fatally stabbing four U of I undergraduates at an off-campus home in Moscow in November 2022. The victims 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.

At the time, Kohberger was a Ph.D. student in Washington State University’s criminal justice and criminology program and living in Pullman, Washington, just over the Idaho state line. He was arrested in December 2022 and is charged with four counts of first-degree murder and one count of felony burglary.

Kohberger’s trial is scheduled for this summer. If a jury convicts him, prosecutors intend to seek the death penalty.

‘Death is different’

Despite the allegation from Kohberger’s defense of late disclosed discovery — which the judge has yet to confirm — there’s a key difference in procedure between the two murder cases, U of I law professor Samuel Newton said. Whereas Vallow Daybell maintained her right to a speedy trial, Kohberger waived his on the advice of his attorneys so they could push out the trial in favor of more time to prepare.

If a defendant in Idaho does not waive the constitutionally guaranteed speedy right, a criminal trial must start within six months of the entry of a plea. Frustrating some of the victims’ families, Kohberger’s capital murder trial won’t begin until more than two years after a judge entered a not guilty plea on his behalf.

Also, the late discovery issue in the Vallow Daybell case came just three weeks ahead of jury selection. In Kohberger’s case, trial remains more than six months out, so Hippler still has other potential remedies at his disposal if he deems any are warranted, Newton told the Idaho Statesman.

“So the Kohberger situation doesn’t fit into the same box,” Newton said in a phone interview. “They don’t have the speedy trial throttle on the back end, and there’s still time on the other end, so you have neither” issue.

Boyce cited complications over the volume of evidence that prosecutors disclosed late, which prevented the defense from adequately preparing with little time before trial. A continuance was not an option because Vallow Daybell had “unequivocally asserted her right to a speedy trial,” he said.

“The problem here is a timing problem,” Boyce said in a ruling from the bench.

Trial judges are granted wide latitude to decide what sanctions should be applied when discovery evidence is handed over after court deadlines, Newton said. More often, judges settle on giving the opposing side extra time, or restricting late evidence from being presented to the jury, which avoids the “extraordinary remedy to take the death penalty away from the state,” he said.

The risk of losing evidence is usually incentive enough for prosecutors to follow the court schedule and ensure that all discovery deadlines are met, added Joshua Ritter, a criminal defense attorney in Los Angeles who hosts “The Sidebar” podcast from True Crime News. That or granting more time to the defense already are “both pretty strong remedies,” he told the Statesman by phone.

“The exclusion of evidence could be profound on a state’s case,” Ritter said.

Boyce noted at the time of his ruling that he didn’t find another Idaho case in which the heavy sanction was issued to block capital punishment, though there were precedents in some federal cases and other U.S. jurisdictions. The prosecution’s evidence violations in the Vallow Daybell case were “inarguably” and “inexcusably” late, and not dropping the death penalty could have led to overturning a conviction, Boyce said.

“If I were to fail to address this discovery issue, I believe this case would inevitably be reversed on appeal if there was a capital conviction,” he said. There is a heightened standard in all capital cases, Boyce added, and he referenced a well-known U.S. Supreme Court tenet: “Death is different.”

Another murder case

The continued focus on removing capital punishment as a sentencing option ahead of Kohberger’s murder trial is revealing about his attorneys’ overarching legal strategy, Ritter said. Kohberger’s three-member defense team is led by North Idaho attorney Anne Taylor.

“It’s abundantly clear that at any possible opportunity the Kohberger defense seems like mission No. 1 to them is getting the death penalty off of the table,” he said.

So far, it hasn’t worked. It’s also not yet a certainty that his attorneys will formally ask Hippler once more to consider striking a possible death sentence, now related to alleged discovery lapses by prosecutors. They’ve only signaled that’s their next possible step.

Taylor also has cited Boyce’s decision concerning Vallow Daybell in the criminal case for another of her clients. In recent court filings, Taylor asked a district judge in Nez Perce County to remove the death penalty in defendant Skylar Meade’s murder case after she alleged that the prosecution failed to disclose “massive amounts” of evidence.

“I imagine they will vigorously defend him in the guilt phase,” Ritter said of the Kohberger case. “But it does seem to be a battle to save their client’s life rather than a real battle for what they believe to be the innocence of their client.”

The family of victim Kaylee Goncalves has been vocal about their desire for Kohberger to face the death penalty if he is convicted. The Goncalveses anticipate any number of additional pretrial motions filed by the defense, including to ward off the death penalty, but doubt that most, if not all, of the efforts will succeed, according to a statement through the family’s attorney to the Statesman.

“The family is and always will be a proponent of the death penalty in this case,” the Goncalveses’ statement read.

Kohberger’s defense alleged that the prosecution’s expert witness filings to date, which remain sealed, represent violations of their client’s constitutional rights under the Sixth and 14th amendments. As a criminal defendant, he is guaranteed a chance to “confront and cross-examine the witnesses, confront the evidence that the state intends to present, and his counsel’s ability to effectively prepare,” they wrote.

As a result, Kohberger’s attorneys have asked Hippler to sanction the prosecution, and also filed a request to extend their own expert witness disclosure beyond next week’s deadline.

“Mr. Kohberger must be able to confront the evidence against him,” his defense wrote. “The expert evidence disclosed by the state is inadequate. This is a capital murder case and compliance with the rules of discovery are not optional.”

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