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By Lauren del Valle and Jean Casarez, CNN
(CNN) — Bryan Kohberger’s legal team won’t be able to tell a jury in his upcoming death penalty trial about his autism diagnosis unless he takes the stand in his own defense, a judge ruled Friday.
Kohberger faces four counts of first-degree murder in the deaths of Madison Mogen, Kaylee Goncalves, Xana Kernodle and Ethan Chapin, who were killed at an off-campus home in Moscow, Idaho, on November 13, 2022. Not guilty pleas have been entered on his behalf.
Kohberger’s lawyers had asked the judge to allow them to tell the jury during opening statements in the trial’s first phase that he has autism spectrum disorder – a condition they say will explain what might be perceived as odd behavior as he sits at the defense table.
Autism spectrum disorder is a neurological and developmental disorder that can affect how people interact with others, communicate, learn and behave, according to the National Institute of Mental Health.
Judge Steven Hippler denied the motion Friday, saying unless Kohberger testifies, his demeanor is not relevant.
Kohberger’s attorneys have repeatedly said it’s unlikely he’ll take the stand in his own defense because of his diagnosis.
The judge said he’s never seen any odd behavior from Kohberger during the hearings he’s presided over in the last several months, noting Kohberger is diagnosed with the least severe form of ASD and “by all accounts is highly-functioning.”
“Not once has the Court perceived Defendant to be acting in an odd or incongruent manner or otherwise demonstrating signs at counsel table that would warrant any explanation to the jury,” Hippler wrote.
Hippler said in the new order bringing more attention to it in opening statements and through expert testimony would add more time to the already lengthy trial and probably confuse the jury.
A jury is typically instructed only to consider evidence presented at trial and the credibility of witnesses who take the stand – which does not include the demeanor of non-testifying parties.
In a footnote, Hippler said the attorneys can ask prospective panelists during jury selection if Kohberger’s demeanor at the defense table might sway them.
“Defendant’s ASD can certainly be raised in voir dire, including questioning the jury panel about whether they can avoid judging the defendant improperly based on how he presents at counsel table, which may allay Defendant’s concerns about how the jury will perceive him,” the judge wrote.
The judge also ruled Kohberger’s attorneys cannot call an expert to testify that he was not physically capable of committing the crime because he has developmental coordination disorder.
Hippler said none of the defense experts have actually said Kohberger has the disorder or gave an opinion about his ability to commit the crimes.
There is a chance the jury will hear about Kohberger’s obsessive compulsive disorder diagnosis in his defense case. Hippler said he’d wait to decide at trial if the defense can call an expert to talk about Kohberger’s OCD because prosecutors may make arguments that Kohberger was destroying evidence right before law enforcement arrested him at his parents’ home in Pennsylvania.
“By way of example, he notes that just prior to his arrest, law enforcement saw him wearing gloves and handling baggies. Believing he was destroying evidence, law enforcement abbreviated its knock and announce procedure,” Hippler wrote. “If the State introduces this or similar evidence at trial, Defendant asserts that evidence of his OCD would be relevant rebuttal to offer another explanation for his behavior.”
Defense attorneys for Kohberger are advocating to get the death penalty off the table as a possible sentence should he be convicted. As it stands, the trial will be carried out in phases. The jury will first consider whether the 30-year-old former criminology graduate student is guilty.
If Kohberger is convicted, the same panel will consider whether he should be put to death. The jury is expected to hear evidence about Kohberger’s ASD diagnosis as a mitigating factor by the defense during that phase of the trial if it comes to it.
The defense has also said Kohberger’s autism diagnosis should disqualify him from the death penalty altogether, but the judge has yet to rule on that motion.
Jury can hear testimony describing intruder’s ‘bushy eyebrows,’ judge says
In another order Friday, Judge Hippler said the jury can hear testimony describing the intruder’s “bushy eyebrows” from the only living witness who saw the person in the house around the time of the killings.
One of the surviving roommates, Dylan Mortensen, who has said she saw a masked man wearing all black in the home around the time of the murders, has repeatedly described the intruder as having “bushy eyebrows” in law enforcement interviews and grand jury testimony.
Kohberger’s defense team has called Mortensen an unreliable eyewitness, arguing prosecutors shouldn’t be able to mention that description because her recollection has been inconsistent, muddied by intoxication and post-event media exposure.
The judge said Friday he disagrees.
“While she did not mention his eyebrows in her initial interview, she thereafter identified the “bushy eyebrows” on multiple occasions as something that firmly stuck out in her mind.
“Although she might have been intoxicated or tired or questioned her memory, the consistency of her descriptions suggest high degree of reliability,” Hippler wrote.
Hippler said the description “might or might not implicate” Kohberger, and that is for the jury to decide.
Prosecutors have also said they plan to show the jury a selfie recovered from Kohberger’s cell phone taken hours after the murders to show what he looked like at the time.
Kohberger’s lawyers will be allowed to cross-examine Mortensen about her ability to remember what she claims she saw, but regardless, her testimony is highly relevant, the judge said.
“D.M.’s testimony about ‘bushy eyebrows’ is highly relevant in this case. D.M. is the only eyewitness to the intruder responsible for the homicides. It is the jury’s task to determine whether Defendant is that person,” Hippler wrote.
The judge heard arguments from the lawyers about these and several other issues at a daylong hearing last week. There are still several pending issues the judge is expected to decide about what can and cannot come in at trial.
The parties are due back in court May 15.
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