Could Bryan Kohberger’s autism defense for capital murder set a precedent?

BOISE, Idaho - Attorneys for Bryan Kohberger claim he has autism, and now they’re trying to use that to get the death penalty off the table.

What we know:

The 30-year-old is charged with the stabbing deaths of University of Idaho students Kaylee Goncalves, Madison Mogen, Ethan Chapin and Xana Kernodle. 

His trial is set for this summer, but if convicted, he could face the death penalty, which is why his attorneys are trying to strike it before the trial starts. According to court documents, a comprehensive neuropsychological evaluation of Kohberger conducted by Dr. Rachel Orr, PsyD, ABPP-CN, found that he "continues to exhibit all the core diagnostic features of ASD currently, with significant impact on his daily life." ASD stands for autism spectrum disorder.

FOX 13 talked with John Blume, the Samuel Leibowitz Professor of Trial Techniques and the director of the Cornell Death Penalty Project. He’s seen his share of intellectual disabilities used in capital punishment cases.

"The Supreme Court of the United States said in a 2002 case, Atkins v. Virginia, that people with intellectual disability, or what we used to call mental retardation, can't be sentenced to death and can't be executed," Blume said.

However, autism is not considered an intellectual disability, but rather a developmental disability. The Supreme Court has not said the same thing about people with autism spectrum disorder.

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Kohberger’s attorneys argue that people with autism spectrum disorder, like Kohberger, exhibit many of the very same impairments as people with intellectual disabilities. 

"They're not saying, 'look, he can't be found guilty of murder.' He can, just like somebody with intellectual disability can be found guilty of murder, but because of this severe developmental disorder, he doesn't have sufficient moral culpability to justify putting him to death," Blume said.

The 28-page motion also cites news organizations and online videos calling Kohberger’s mannerisms signs of guilt. For example, his "deadpan look" and "robot-like walk," positing that his facial expressions and body language prove he is a murderous "incel," stated in the court documents. The court records also explained his "atypical eye contact, including an intense gaze" have been called "sinister." However, the defense claims these are traits of his autism.

"In this case, where jurors will be forced to determine whether Mr. Kohberger will live or die, Mr. Kohberger himself is essentially a piece of evidence to be examined and evaluated," the court records state.

Blume told FOX 13 autism has been raised in other cases, but at trial. The fact that Kohberger’s attorneys are raising this before his trial doesn’t happen often, and could have the potential to set precedent.

"I think there's an opportunity for a court to say, either, as a matter of, you know, state law, state constitutional law, federal law, that we're not going to allow people with autism to be sentenced to death," Blume said. 

Kohberger’s trial is scheduled to start in August.

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