Court Filing
Electronically Filed 6/2/2023 3:51 PM Second Judicial District, Latah County Julie Fry, Clerk of the Court By: Tamzen Reeves, 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. Supplemental Memorandum in Support of Motion to Vacate the Amended BRYAN C. KOHBERGER, Nondissemination 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 Supplemental Memorandum in Support of Motion to Vacate the Amended Nondissemination Order -1 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. On May 1, 2023, Intervenors filed a Motion to Intervene and a Motion to Vacate the Amended Nondissemination Order along with supporting memoranda. At a May 22, 2023 Scheduling Conference on those motions, the Court set a motion hearing for June 9, 2023 and ordered that Intervenors could file a supplemental memorandum in support of their pending motions and submit a memorandum on the separate issue of whether cameras should be allowed in the courtroom. Intervenors are contemporaneously filing a separate memorandum on the camera issue. On the Motion to Intervene and the Motion to Vacate, Intervenors stand by the memoranda they filed on May 1, 2023. But they offer three points here to further the colloquy with the Court during the May 22, 2023 Scheduling Conference about the Motion to Vacate. First, Intervenors respect Mr. Kohberger's right to a fair trial and they do not contend that their First Amendment rights are the only constitutional rights at issue here. Intervenors stand by their prior assertions that when defining the bounds of the First Amendment, “ an orderly society must also consider a criminal defendant's right to a fair trial " and that the Court's task when considering a gag order is to “ ensure a proper balance between the First and Sixth Amendments. ” Mem. in Support of Mot. to Vacate the Amended Nondissemination Order, p. 6. Intervenors ' argument is that those rights were improperly balanced when a gag order initially was entered and when it was amended in this case. Intervenors agree that their First Amendment rights yield to Mr. Supplemental Memorandum in Support of Motion to Vacate the Amended Nondissemination Order-2 Kohberger's Sixth Amendment rights, but only when Mr. Kohberger's Sixth Amendment rights will actually be infringed by Intervenors ' speech. Strict scrutiny analysis teases out where that line lies, and the Amended Nondissemination Order dated January 18, 2023 (“ Gag Order ”) fails under that test. Intervenors agree that there has been, and will continue to be, great publicity surrounding this case. But publicity alone is not prejudicial. Any statement concerning this case is not prejudicial; statements can be exculpatory, inculpatory, or irrelevant. The State's and Mr. Kohberger's failure to present any evidence of prejudicial news coverage, and the Court's failure to consider alternative measures, means the competing constitutional rights here were improperly balanced and the Gag Order should be vacated. If anything, the Gag Order prejudices Mr. Kohberger by depriving the public of quality information, creating a vacuum for rampant speculation online. Second, Intervenors have properly cited the Idaho Supreme Court's decision in In re Petition for Writ of Mandamus or Writ of Prohibition, No. 50482, 2023 WL 3050829 (Idaho Apr. 24, 2023). Two lines from the Idaho Supreme Court's opinion are particularly relevant to Intervenors ' pending Motion to Vacate: • “ [I] f the amended nondissemination order is vague, overbroad, unduly restrictive, or not narrowly drawn, it would be an unconstitutional obstacle to their gathering of such information. " Id. at * 5. • " [T] he media's concern that the order's provisions are vague, overbroad, unduly restrictive, and not narrowly drawn are not merely contrived, and if established, could improperly infringe on the press's constitutional right to report on the case. ” Id. at * 6. Intervenors acknowledge that the Idaho Supreme Court did not decide the merits question of Supplemental Memorandum in Support of Motion to Vacate the Amended Nondissemination Order-3 whether the gag order at issue here is vague, overbroad, unduly restrictive, or not narrowly drawn-that is the task for this Court. But the Idaho Supreme Court did hold that, in the abstract, a gag order that is vague, overbroad, unduly restrictive, or not narrowly drawn “ would be an unconstitutional obstacle ” and “ could improperly infringe on the press's constitutional right to report on the case. ” That is what Intervenors intended to convey in the opening section of their May 1, 2023 memorandum. Intervenors used gag order in the lowercase to reference what the Idaho Supreme Court said about gag orders generally, and Intervenors intentionally did not use the capitalized Gag Order (the defined term for the Amended Nondissemination Order dated January 18, 2023) because the Idaho Supreme Court did not decide whether the Gag Order is vague, overbroad, unduly restrictive, or not narrowly drawn (it is for the reasons provided in Intervenors ' May 1, 2023 memorandum). Third, the Court should decide the Motion to Vacate based on the factual record that existed when the Gag Order was issued and the new evidence that Intervenors have provided to show the Gag Order's chilling effect. With their Motion to Vacate, Intervenors submitted a declaration with counsel's factual understanding of how the Gag Order has affected Intervenors. Submitted with this memorandum are declarations from the reporters themselves. The reporters ' declarations largely confirm counsel's prior understanding of the facts, but in full candor there are a few corrections: Morgan Romero was not provided information about whether Mr. Kohberger was ever offered a job with the Pullman Police Department (as opposed to whether he was interviewed), and only the Latah County Sheriff's Office and the Moscow Police Department denied Taylor Mirfendereski's public records requests because of a gag order in this case (other agencies cited public records exemptions). While the facts that Intervenors rely on only came into existence after a gag order was issued, the State and Mr. Kohberger could have submitted any evidence that in Supplemental Memorandum in Support of Motion to Vacate the Amended Nondissemination Order-4 their view suggests a gag order is necessary when they submitted their request for a gag order to the Court. The State and Mr. Kohberger thus should not be allowed to submit new evidence supporting the Gag Order with their response brief or at the June 9, 2023 motion hearing. When the State and Mr. Kohberger first requested the Gag Order, that was their opportunity to carry their burden to create a record to support their request. Intervenors ' Motion to Vacate challenges the validity of the Gag Order based on the record before the Court at the time the order was issued. Six months later, the State and Mr. Kohberger should not be allowed to ambush Intervenors and the Court with evidence, particularly expert evidence, that they could have and should have disclosed and presented much earlier. Intervenors otherwise urge the Court to vacate the Gag Order for the reasons set forth in their motion and memoranda filed on May 1, 2023, and on the declarations filed contemporaneously herewith. DATED: June 2, 2023. STOEL RIVES LLP / s / Wendy J. Olson Wendy J. Olson Cory M. Carone Attorneys for Intervenors Supplemental Memorandum in Support of Motion to Vacate the Amended Nondissemination Order-5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 2nd day of June 2023, I served a true and correct copy of the within and foregoing upon the following named parties by the method indicated below, and addressed to the following: Latah County Prosecutor's Office Hand Delivered William W. Thompson, Jr. Via Facsimile Prosecuting Attorney U.S. Mail Latah County Courthouse Via email P.O. Box 8068 X Via iCourt efile & serve at: Moscow, ID 83843 paservice@latahcounty.id.gov Anne Taylor Hand Delivered Attorney at Law Via Facsimile P.O. Box 9000 U.S. Mail Coeur d'Alene, ID 83816 X Via email at ataylor@kcgov.us X Via iCourt efile & serve at: pdfax@kcgov.us Jeff Nye Hand Delivered Ingrid Batey Via Facsimile Deputy Attorney General U.S. Mail P.O. Box 83720 X Via email at jeff.nye@ag.idaho.gov Boise, ID 83720 ingrid.batey@ag.idaho.gov Via iCourt efile & serve at: Shanon Gray Hand Delivered 2175 N. Mountain View Road Via Facsimile Moscow, ID 83843 U.S. Mail Via email X Via iCourt efile & serve at: shanon@graylaw.org Elisa G. Massoth, PLLC Hand Delivered Attorney at Law Via Facsimile P.O. Box 1003 U.S. Mail Payette, ID 83661 X Via email at emassoth@kmrs.net X Via iCourt efile & serve at: emassoth@kmrs.net / s / Wendy J. Olson Wendy J. Olson Supplemental Memorandum in Support of Motion to Vacate the Amended Nondissemination Order-6