Court Filing
Electronically Filed 5/1/2023 4:57 PM Second Judicial District, Latah County Julie Fry, Clerk of the Court By: Jennifer Oliphant, Deputy Clerk Wendy J. Olson, Bar No. 7634 wendy.olson@stoel.com Cory M. Carone, Bar No. 11422 cory.carone@stoel.com STOEL RIVES LLP 101 S. Capitol Boulevard, Suite 1900 Boise, ID 83702 Telephone: 208.389.9000 Facsimile: 208.389.9040 Attorneys for Intervenors IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAH STATE OF IDAHO, Plaintiff, Case No. CR29-22-2805 V. Memorandum in Support of Motion to Vacate the Amended Nondissemination BRYAN C. KOHBERGER, Order Defendant. THE ASSOCIATED PRESS; RADIO TELEVISION DIGITAL NEWS ASSOCIATION; SINCLAIR MEDIA OF BOISE, LLC / KBOI-TV (BOISE); STATES NEWSROOM DBA IDAHO CAPITAL SUN; TEGNA INC./KREM (SPOKANE), KTVB (BOISE) AND KING (SEATTLE); EASTIDAHONEWS.COM; THE LEWISTON TRIBUNE; WASHINGTON STATE ASSOCIATION OF BROADCASTERS; IDAHO PRESS CLUB; IDAHO EDUCATION NEWS; KXLY-TV / 4 NEWS NOW AND KAPP / KVEW-TV — MORGAN MURPHY MEDIA KXLY-TV / 4 NEWS NOW; SCRIPPS MEDIA, INC., DBA KIVI-TV, A DELAWARE CORPORATION; THE SPOKESMAN- REVIEW / COWLES COMPANY; THE NEW YORK TIMES COMPANY; LAWNEWZ, INC.; ABC, INC.; WP COMPANY LLC, DBA THE WASHINGTON POST; SOCIETY OF PROFESSIONAL JOURNALISTS; THE MCCLATCHY COMPANY, LLC; and THE SEATTLE TIMES, Intervenors. TABLE OF CONTENTS Page I. INTRODUCTION 1 II. BACKGROUND. 1 III. ARGUMENT 5 A. The Gag Order violates the First Amendment because it is vague, overbroad, unduly restrictive, and not narrowly drawn. 6 1. The Gag Order far exceeds Idaho Rule of Professional Conduct 3.6. 7 a. The Gag Order broadly prohibits any statements about Mr. Kohberger's prosecution. 7 b. The Gag Order prohibits speech from a broad and vague group of individuals. 8 2. U.S. Supreme Court precedent counsels in favor of vacating the Gag Order.. 9 3. The Court should treat the Gag Order as a prior restraint and apply strict scrutiny. 15 4. The Court should reject the fiction that gag orders directed at trial participants do not restrain the press. 16 5. The Court should apply strict scrutiny even if it does not find that the Gag Order is a prior restraint. 18 6. The Gag Order fails under strict scrutiny. 19 7. The Gag Order fails under less exacting scrutiny. 21 B. The Gag Orders violates the Idaho Constitution for the same reasons.. 23 IV. CONCLUSION. 23 -i- I. INTRODUCTION Last week, the Idaho Supreme Court confirmed that a “ vague, overbroad, unduly restrictive, or not narrowly drawn " gag order is “ an unconstitutional obstacle to [Intervenors] gathering " information about this case. In re Petition for Writ of Mandamus or Writ of Prohibition, No. 50482, 2023 WL 3050829, at * 5 (Idaho Apr. 24, 2023). But on procedural grounds, the Idaho Supreme Court decided that this Court should have a chance, in the first instance, to vacate the amended nondissemination order entered January 18, 2023 (the “ Gag Order ”). Following the Idaho Supreme Court's guidance, Intervenors now ask this Court to vacate the Gag Order because it is vague, overbroad, unduly restrictive, and not narrowly drawn. The Gag Order expands far beyond Idaho Rule of Professional Conduct 3.6, applying to individuals not governed by those ethical rules and prohibiting any statements about this case, not just those that present a substantial likelihood of materially prejudicing a future trial. What's more, the State and Mr. Kohberger (the “ Parties ”) have submitted no evidence that media coverage presents a sufficient risk of prejudice to Mr. Kohberger's right to a fair trial or that other remedies are insufficient to prevent or remedy any prejudice. The Gag Order, which is based on the Parties ' stipulation, rests merely on an assumption that press coverage is bad. The U.S. Constitution and the Idaho Constitution demand more. The Gag Order should thus be vacated. II. BACKGROUND In December 2022, Bryan C. Kohberger was arrested and charged for allegedly murdering four students at the University of Idaho. Despite great public interest in the investigation of the murders and now the prosecution of Mr. Kohberger, there have not been any notable leaks or dissemination of extrajudicial information that would prejudice Mr. Kohberger's right to a fair trial. Yet the Parties stipulated to a gag order “ prohibiting attorneys, investigators, and law Memorandum in Support of Motion to Vacate the Amended Nondissemination Order-1 enforcement personnel from making any extrajudicial statement, written or oral, concerning this case, other than a quotation from or reference to, without comment, the public records of the Court in this case. " Declaration of Wendy J. Olson (“ Olson Decl. ”), Ex. A.¹ The Parties offered no evidence in support of their stipulation, simply asserting: “ As this Court is aware, this case involves matters that have received a great deal of publicity. ” Id. Their assertion, while not wrong, does not say the publicity has been prejudicial to Mr. Kohberger. The Court issued the requested gag order just over an hour after the Parties submitted their stipulation. Id., Ex. B. Intervenors do not doubt that the Court had good intentions, but an hour was not enough time to meaningfully consider the constitutional interests at stake. There was no time for the Court to hold a hearing, take any objections, make factual findings, or perform any legal analysis. Ten days later, the Court held a private meeting with the Parties and an attorney for a victim's family. Id., Ex. C. The Parties drafted a memorandum after the meeting. Id. The memorandum is not a court order; it is the Parties ' memorialization of what they remember from the meeting. Even though minor redactions would satisfy any privacy concerns, the Parties opted to file the entire memorandum under seal. To the public, it appeared that the meeting never occurred (the Parties later agreed to unseal to memorandum to use it to oppose the Intervenors ' petition in the Idaho Supreme Court). Five days after the private meeting, the Court issued the Gag Order that is at issue in this motion. Id., Ex. D. Because the preceding meeting was held privately, to the public it appeared that the Court issued the Gag Order sua sponte. The Court noted in the Gag Order that: " To 1 The docket cannot be accessed on iCourts, so Intervenors ' knowledge of the proceedings is limited to what the Idaho Judicial Branch has posted at https://coi.isc.idaho.gov/. Memorandum in Support of Motion to Vacate the Amended Nondissemination Order-2 preserve the right to fair trial some curtailment of the dissemination of information in this case is necessary and authorized under the law. " Id. The Court made no factual findings in support of that conclusion-which of course it could not as, again, the Parties presented no evidence (if evidence was presented during the private meeting, it was not offered on the record and cannot be relied upon as Intervenors have no means to evaluate, let alone challenge the veracity of, the evidence). Id. Nor did the Court hold a hearing or offer any legal analysis, aside from a footnote citing several authorities and offering no explanation of how or why those authorities apply. Id. The Gag Order extends beyond what the Parties requested in their stipulation. The Gag Order applies to: “ The attorneys for any interested party in this case, including the prosecuting attorney, defense attorney, and any attorney representing a witness, victim, or victim's family, as well as the Parties to the above-entitled action, including but not limited to investigators, law enforcement personal, and agents for the prosecuting attorney or defense attorney [.] ” Id. Intervenors are a coalition of media companies that but for the Gag Order would publish more information about the murders at the University of Idaho and Mr. Kohberger's prosecution. Members of the media coalition have been affected by the Gag Order as follows: • A victim's family wants to speak with the press about Mr. Kohberger's prosecution, but they feel bound by the Gag Order. Id., Ex. E. • A Washington agency has requested declaratory relief to determine whether, consistent with the Gag Order, it can produce 9-1-1 tapes in response to public records requests. Id., Ex. F. Memorandum in Support of Motion to Vacate the Amended Nondissemination Order-3 • Major Christopher Paris of the Pennsylvania State Police told reporter Chris Ingalls that he could not answer whether police had launched any review of unsolved cases that could be linked to Mr. Kohberger because of the Gag Order.² Olson Decl., ¶ 9. • Moscow Mayor Art Bettge told reporter Erica Zucco that the city attorney advised he could not answer questions about the overall community healing in Moscow because of the Gag Order. Id. • Journalist Taylor Mirfendereski's public records requests were denied by the Latah County's Sheriff's Office, Moscow Police Department, Pullman Police Department, and Washington State Police Department because of the Gag Order. Id. • The Moscow Police Department issued a press release that: “ Due to this court order, the Moscow Police Department will no longer be communicating with the public or the media regarding this case. ” Id., Ex. G. • Gary Jenkins, Chief of Police at Washington State University, and Matt Young, Communication Coordinator for the City of Pullman, told reporter Morgan Romero that they could not answer whether Mr. Kohberger applied for a graduate assistant research position with the Pullman Police Department because of the Gag Order. Olson Decl., 9. • The Moscow Police Department refused to advise a reporter from the Idaho Statesman how many cellphone towers are in the area near where the murders 2 For the following citations in this paragraph, the source was referring either to the original or amended gag order. Memorandum in Support of Motion to Vacate the Amended Nondissemination Order-4 occurred, the size of Mr. Kohberger's cell, the size of the Moscow jail, and the nature of Mr. Kohberger's meals because of the Gag Order. Id. • Law & Crime reporter Angenette Levy was denied access to Kohberger's booking video from the Latah County Sheriff's Office because of the “ court's nondissemination order. " Id. Within weeks of the Court issuing the Gag Order, Intervenors petitioned the Idaho Supreme Court to vacate or nullify the Gag Order. The Idaho Supreme Court held that Intervenors have “ sufficient standing to challenge the ” Gag Order. In re Petition for Writ of Mandamus or Writ of Prohibition, 2023 WL 3050829, at * 6. In support of that holding, the Idaho Supreme Court " agree [d] that the injury claimed ” —a claim that the Gag Order infringes “ freedom of the press by restricting [Intervenors '] ability to gather information for publication ” — “ is recognized under the First Amendment. ” Id. at * 5. The Idaho Supreme Court further noted that if the Gag Order “ is vague, overbroad, unduly restrictive, or not narrowly drawn, it would be an unconstitutional obstacle to their gathering of such information. ” Id. But the Idaho Supreme Court declined to vacate the Gag Order, opining that “ the proper course is to first seek redress from the magistrate court [.] " Id. at * 10. Following that instruction, Intervenors now ask this Court to vacate the Gag Order because it vague, overbroad, unduly restrictive, and not narrowly drawn. III. ARGUMENT “ [J] ustice cannot survive behind walls of silence [.] ” Sheppard v. Maxwell, 384 U.S. 333, 349 (1966). For that reason, “ [a] responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. ” Id. at 350. “ The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. ” Id. The Memorandum in Support of Motion to Vacate the Amended Nondissemination Order-5 First Amendment was thus “ intended to give to liberty of the press the broadest scope that could be countenanced in an orderly society. ” Id. (cleaned up). To be sure, an orderly society must also consider a criminal defendant's right to a fair trial. But when balancing that interest, First Amendment protections do not yield until they infringe the Sixth Amendment. There is no presumption that speech is prejudicial to a criminal defendant or that more speech necessarily means a less fair trial. To the contrary, the U.S. Supreme Court's precedent " demonstrate [s] that pretrial publicity [,] even pervasive, adverse publicity [,] does not inevitably lead to an unfair trial. ” Neb. Press Ass'n v. Stuart, 427 U.S. 539, 554 (1976). And even when speech is prejudicial to a criminal defendant, only in “ relatively rare ” cases does pretrial publicity present “ unmanageable threats. ” Id. at 551, 554. Many mitigating measures exist, " includ [ing] change of venue, trial postponement, a searching voir dire, emphatic jury instructions, and sequestration of jurors. ” Application of Dow Jones & Co., 842 F.2d 603, 611 (2nd Cir. 1988) (citing Sheppard, 384 U.S. 333, and Neb. Press, 427 U.S. 539). To ensure a proper balance between the First and Sixth Amendments a party requesting a gag order must present evidence that the prohibited speech presents a sufficient risk of prejudice to a fair trial and that none of the other alternative remedies, which do not prohibit speech, are sufficient to prevent or remedy any prejudice. Here, the Parties have fallen well short, as they have submitted no evidence on the record to support the sweeping Gag Order that is in place. A. The Gag Order violates the First Amendment because it is vague, overbroad, unduly restrictive, and not narrowly drawn. The Gag Order broadly prohibits any statements “ concerning this case. ” That prohibition is much broader than Idaho Rule of Professional Conduct 3.6, and it is broader than the regulations of speech described by the U.S. Supreme Court in Sheppard, Nebraska Press, and Gentile. There is no evidence that every statement concerning Mr. Kohberger's prosecution poses a substantial Memorandum in Support of Motion to Vacate the Amended Nondissemination Order-6 risk to his right to a fair trial, nor is there any evidence that other, less restrictive measures could not prevent or remedy any prejudice. As a result, the Gag Order violates the U.S. Constitution and the Idaho Constitution. 1. The Gag Order far exceeds Idaho Rule of Professional Conduct 3.6. Footnote 1 of the Gag Order cites Idaho Rule of Professional Conduct 3.6. It is unclear whether that citation is intended to suggest that the Gag Order mirrors Rule 3.6. Even if that were the case, the Parties need to explain why the Idaho State Bar's enforcement of Rule 3.6 is insufficient, such that a court order and the penalty of contempt are necessary. Those more severe penalties present a unique chilling effect that will reduce speech that does not violate Rule 3.6. In any event, the Gag Order does not mirror Rule 3.6. The Gag Order is far broader: It prohibits more topics of speech and governs a wider range of individuals. a. The Gag Order broadly prohibits any statements about Mr. Kohberger's prosecution. Rule 3.6 is carefully crafted to regulate a narrow set of topics that are most likely to be prejudicial. It regulates speech that “ will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. ” I.R.P.C. 3.6 (a). The rule's comment explains that there are " certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, ” such as the " character, credibility, reputation or criminal record of a party, ” “ the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant, ” “ [t] he performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, ” and “ [a] ny opinion as to the guilt or innocence of a defendant [.] " Id. 3.6 cmt. 5. By contrast, the Gag Order is not tailored at all. Section 1 of the Gag Order prohibits any “ extrajudicial statements (written or oral) concerning this case. ” Olson Decl., Ex. D. Section 2 Memorandum in Support of Motion to Vacate the Amended Nondissemination Order-7 offers examples of prohibited speech, but it does not say those examples are exhaustive or limit the general prohibition of any statements “ concerning this case. ” As a result, the Gag Order prohibits all statements about Mr. Kohberger's prosecution — even statements that could help him secure a fair trial. Unsurprisingly then, individuals have said the Gag Order prohibits them from making comments on innocuous topics like how the Moscow community is healing, how many cellphone towers are around where the murder occurred, the size of Mr. Kohberger's cell, the meals Mr. Kohberger receives, and Mr. Kohberger's job applications to the Pullman Police Department. Olson Decl., 9. Even without the sweeping prohibition in Section 1, Section 2 of the Gag Order does not precisely mirror Rule 3.6's commentary. For example, Section 2 (a) prohibits speech on “ [e] vidence regarding the occurrences or transactions involved in the case, ” which is broader than the commentary's concerns about speech related to “ the identity or nature of physical evidence expected to be presented, ” I.R.P.C. 3.6 cmt. 5. And Section 2 (d) prohibits speech about “ [a] ny opinions as the merits of the case or the claims or defense of a party, ” which is broader than the commentary's concerns related to speech about “ [a] ny opinion as to the guilt or innocence of a defendant, " I.R.P.C. 3.6 cmt. 5 (which is also covered in Section 2 (f), suggesting Section 2 (d) is intended to regulate something different and broader). b. The Gag Order prohibits speech from a broad and vague group of individuals. The Gag Order targets “ [t] he attorneys for any interested party in this case, including the prosecuting attorney, defense attorney, and any attorney representing a witness, victim, or victim's family, as well as the Parties to the above-entitled action, including but not limited to investigators, law enforcement personnel, and agents for the prosecuting attorney or defense attorney. ” Olson Memorandum in Support of Motion to Vacate the Amended Nondissemination Order-8 Decl., Ex. D. To start, that group of individuals is vague. Although the Gag Order expressly identifies certain types of individuals, that list is not exhaustive because of the phrase “ including but not limited to. " Id. As a result, others like the victims ' families and law enforcement outside the State of Idaho — must guess whether they too are subject to the Gag Order. That guessing game renders the Gag Order unconstitutionally vague, and it also exceeds the Court's jurisdiction, as the Court cannot bind individuals who are not before it and who reside outside Idaho. That group of individuals is also overbroad. In contrast to the Gag Order, Rule 3.6 governs attorneys only, and specifically those attorneys admitted to practice in Idaho. E.g., I.R.P.C. pmbl.; id. 8.5. Rule 3.8 demonstrates that limitation. It requires a prosecutor to “ exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case ” from making statements that the prosecutor could not make under Rule 3.6. Id. 3.8 (f). That is, Rule 3.8 operates indirectly through the prosecutor; it does not apply directly to an investigator or law enforcement (because they are not lawyers admitted in Idaho). Nor does Rule 3.8 address the defense attorneys, the defense's investigators or agents, or the attorneys or agents for the victims ' families. T