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Prosecutors have said they intended to seek the death penalty if Kohberger is convicted at his trial, which is set to begin in August.

But his attorneys asked Judge Steven Hippler to remove the death penalty as a possible punishment, citing Kohberger’s diagnosis of autism spectrum disorder. They have also filed several other motions challenging the death penalty, including one based on purported violations by the state in providing evidence.

“Mr. Kohberger’s autism spectrum disorder (ASD) 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,� defense attorneys wrote in court papers.

They argued that executing someone with autism would constitute cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution.

Prosecutors argued that under U.S. Supreme Court precedent, the only mental disability that precludes imposition of the death penalty is an intellectual disability — and Kohberger’s diagnosis was of mild autism “without accompanying intellectual ... impairment.�

The judge agreed.

“Not only has Defendant failed to show that ASD is equivalent to an intellectual disability for death penalty exemption purposes, he has not shown there is national consensus against subjecting individuals with ASD to capital punishment,� . “ASD may be mitigating factor to be weighed against the aggravating factors in determining if defendant should receive the death penalty, but it is not (a) death-penalty disqualifier.�

Kohberger was a criminal justice graduate student at Washington State University, in Pullman, about 10 miles (16 kilometers) from Moscow, at the time of the killings. He was weeks later. Investigators said they matched his DNA to genetic material recovered from a knife sheath found at the crime scene.

Autopsies showed the four victims were all likely asleep when they were attacked, some had defensive wounds and each was stabbed multiple times.

Following Kohberger's arrest, his attorneys had him examined by a clinical neuropsychologist, Dr. Rachel Orr, who diagnosed him with with “Autism Spectrum Disorder, level 1, without accompanying intellectual or language impairment.�

In , the judge agreed that jurors will likely be able to hear much of the made from outside the house by two surviving roommates roughly eight hours after the killings, as they realized one of their roommates wasn’t waking up.

However, statements made during that call by an unidentified woman who relayed information she had not observed first-hand will be barred from the trial, Hippler said.

Jurors will also be able to see text messages the two surviving roommates sent around the time of the attack, after 4 a.m., when one reported seeing a masked man in the house, the judge said, assuming prosecutors can lay a foundation for the admission of the evidence.