Court Filing
Electronically Filed 3/26/2024 11:48 AM Second Judicial District, Latah County Julie Fry, Clerk of the Court Anne C. Taylor, Public Defender By: Tamzen Reeves, Deputy Clerk Kootenai County Public Defender PO Box 9000 Coeur d'Alene, Idaho 83816 Phone: (208) 446-1700; Fax: (208) 446-1701 Bar Number: 5836 iCourt Email: pdfax@kcgov.us Elisa G. Massoth, PLLC Attorney at Law P.O. Box 1003 Payette, Idaho 83661 Phone: 208-642-3797; Fax: 208-642-3799 Assigned Attorney: Anne C. Taylor, Public Defender, Bar Number: 5836 Jay W. Logsdon, Chief Deputy Public Defender, Bar Number: 8759 Elisa G. Massoth, Attorney at Law, Bar Number: 5647 IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAH STATE OF IDAHO CASE NUMBER CR29-22-2805 Plaintiff, MEMORANDUM IN SUPPORT OF OBJECTION TO THE STATE'S V. MOTION FOR ORDER PROHIBITING CONTACT WITH PROSPECTIVE BRYAN C. KOHBERGER, JURORS ABSENT LEAVE OF COURT Defendant. COMES NOW, Bryan C. Kohberger, by and through his attorney of record, Anne C. Taylor, Public Defender, and hereby submits this Memorandum in Support of Objection to the State's Motion for Order Prohibiting Contact with Prospective Jurors Absent Leave of the Court. Telephonic surveys to explore the media stories the juror population has been exposed to is not a violation of this Court's Revised Order issued June 23, 2023. The State has alleged that the Defense has violated this Court's Revised Order. Specifically, the State alleges the Defense has violated the prohibition on discussing: MEMORANDUM IN SUPPORT OF OBJECTION TO THE STATE'S MOTION FOR ORDER PROHIBITING CONTACT WITH PROSPECTIVE JURORS ABSENT LEAVE OF COURT Page 1 [t] he identity or nature of evidence expected to be presented at trial or any sentencing phase of the proceedings. " Order, pp.1-2. The Order also prohibits the disclosure of " [a] ny information a lawyer knows or reasonably should know is likely to be inadmissible evidence in trial, and that would, if disclosed, create a substantial risk of prejudicing an impartial trial. " Order, p.2. The Defense is aware of these prohibitions, after all, the Defense wrote the original order upon which it is based. The State, however, misunderstands the prohibition in this respect. The Defense is not “ disclosing ” information. The Defense is asking prospective jurors in the county of Latah as to what information they are aware of that was previously “ disclosed ” vis - à - vis the press. Further, the Revised Order for Non-Dissemination allows for Counsel to ask questions of the public to do its work. That is exactly what happened. Mr. Kohberger in his preparation for his Change of Venue hearing is mindful of what the Court must consider and the available means to obtain information for his evidentiary hearing. Idaho Criminal Rule 21 (ICR 21) and relevant case law guide the factors a court must consider in a motion to change venue. The State's motion and the Court's order intrudes on one of the ways the Defense will seek to establish prejudice pursuant to ICR 21 (a). State v. Hadden, 152 Idaho 371, Ct. of Appeals (2012) outlines relevant factors a court must consider when taking up a change of venue motion prior to attempting to seat a jury: extensive publicity, accuracy of publicity, and the size of the community from which a jury would be drawn. The Hadden court, in referencing the size of the county as being small said, " [h] owever, this fact alone does not require the presumption of prejudice, nor would such a rule be practicable given the relatively rural nature of many of Idaho's counties. " Id. at 386. The Hadden court also said a party challenging venue must bring “ more ” than the size of the community. Certainly pervasive media coverage, that continues to this day, is a factor and will be discussed in a later filing; the focus here is on critical survey work obtaining information to support the change of venue motion by establishing the “ more ” in addition to size of community; this important work will establish the reasonable probability of prejudice. MEMORANDUM IN SUPPORT OF OBJECTION TO THE STATE'S MOTION FOR ORDER PROHIBITING CONTACT WITH PROSPECTIVE JURORS ABSENT LEAVE OF COURT Page 2 To provide that “ more ”, the defense hired Dr. Bryan Edelman, owner of Trial Innovations. Dr. Edelman is an experienced doctor of social psychology with additional educational achievement and experience in statistical surveys. It likely will help to understand how surveys are done in cases such as this. The survey, to be valid, must be done by a random selection of contacts. The number of surveys are small but enough to see trends that are attributed to a larger population. See Declaration of Dr. Edelman attached as Exhibit A. The questions in the survey seek limited but important information. To qualify the surveyor first asks if the person reached is an adult Latah County resident; then the survey continues with opinion, exposure and connection to the case questions. Dr. Edelman, after extensive research of the media coverage in this case and with approval of Counsel, designed the media influence questions around statements that have been in the media. As counsel for the State wrote in their motion, many of the media influence questions are NOT factually correct. That is exactly the point. That is what the Hadden Court said in relation to extensive media coverage; non-factual media dissemination is more harmful. It would be of little use to this Court to know that there was a deluge of unobjectionable media coverage. The only way for this Court to have a way of understanding what the parties would face with a juror from Latah County is to know what they are being exposed to. As Dr. Edelman can testify, that is the sort of work parties do in these cases. It may be new to some in Latah County, but it is still the industry standard, professional, and ethical way to do this work. There is no realistic possibility that this will affect the jury selection in Latah County. The problems with this county are not of the Defense's making. They are what the Defense wishes to expose for this Court. CONCLUSION The State's Motion is filed against the backdrop of Mr. Kohberger preparing for his Motion to Change Venue. The State objected to the Court scheduling a change of venue hearing MEMORANDUM IN SUPPORT OF OBJECTION TO THE STATE'S MOTION FOR ORDER PROHIBITING CONTACT WITH PROSPECTIVE JURORS ABSENT LEAVE OF COURT Page 3 and now, through this motion, is thwarting the Defense preparation for the motion. The State knows Counsel for Mr. Koberger did not violate the Revised Non-Dissemination Order; the State and Counsel met the day before the State filed its motion and discussed the content of the survey and received the curriculum vitae for the expert hired by the defense. The State was informed that these types of surveys are not an anomaly. However, the State filed its motion anyway. The State's motion should be denied, and the order prohibiting future contact with prospective jurors should be withdrawn. DATED this 26 day of March, 2024. ANNE C. TAYLOR, PUBLIC DEFENDER KOOTENAI COUNTY PUBLIC DEFENDER an BY: ANNE TAYLOR PUBLIC DEFENDER CERTIFICATE OF DELIVERY I hereby certify that a true and correct copy of the foregoing was personally served as indicated below on the 26 day of March, 2024 addressed to: Latah County Prosecuting Attorney –via Email: paservice@latahcountyid.gov Elisa Massoth – via Email: legalassistant@kmrs.net Dul MEMORANDUM IN SUPPORT OF OBJECTION TO THE STATE'S MOTION FOR ORDER PROHIBITING CONTACT WITH PROSPECTIVE JURORS ABSENT LEAVE OF COURT Page 4 DECLARATION OF BRYAN EDELMAN, Ph.D. I, Bryan Edelman, solemnly, sincerely, and truly declare and affirm as follows: I. INTRODUCTION I am the co-founder of Trial Innovations, Inc., a national full-service jury research firm. I have worked as a trial consultant for 20 years and have conducted pretrial and post-trial research on both criminal and civil cases across the country. I have been retained as an expert in over 70 high profile cases to assess the impact of pretrial publicity on the fairness of the trial proceedings including the State of Idaho v. Jonathan Renfro, State of Idaho v. Gilberto Rodriguez, State of Colorado v. James Holmes, United States v. Robert Bowers, State of Florida v. Nikolas Cruz, and United States v. David DePape. Counsel for the defendant in State of Idaho v. Brian Kohberger retained me to research and evaluate: (1) whether there was extensive and prejudicial pretrial publicity surrounding the killing of four students attending the University of Idaho in Moscow, the community panic that ensued, and the search for a suspect which ended with Brian Kohberger's arrest; (2) determine if the media coverage has impacted the defendant's ability to obtain a fair and impartial jury in Latah County; (3) whether community residents in alternate venues exhibited similar bias; and (4) based on the findings, recommend appropriate remedial measures — for example, a change of venue — to protect Mr. Kohberger's ability to be tried by a fair and impartial jury. As part of my analysis, I evaluated relevant newsprint, television, and social media coverage surrounding these events and conducted a community attitude survey of 400 residents in Latah County. Comparison surveys in alternative venues have yet to be completed. These surveys were designed to assess case recognition, familiarity with prejudicial media content, and bias. II. QUALIFICATIONS Education and Experience: A copy of my curriculum vitae can be found in Appendix A to this declaration. Upon completion of my undergraduate education, I received an MA and Ph.D. in Social Psychology from the University of Nevada, Reno, and an LL.M. from the University of Kent in the United Kingdom. My graduate studies have provided me with a broad foundation in both qualitative and quantitative research methodologies as well as statistics The Social Psychology Program at the University of Nevada is unique in that it is one of the few in the country that has an emphasis on the application of social psychological theory to the legal arena. During my studies I specialized in jury related issues and examined how attitudes, race, stereotypes, pretrial publicity, and other factors influence juror and jury decision-making. In DEFENDANT'S EXHIBIT NO. A 1 IDENTIFICATION / EVIDENCE DECLARATION OF BRYAN EDELMAN CASE NER29-22-2805 DATE: 3/26/24 this regard, I took coursework addressing topics associated with change of venue motions, the impact of pretrial publicity on jurors ' ability to be fair and impartial, and the steps necessary to conduct a change of venue analysis. The University's association with the National Judicial College and other government agencies also afforded me the opportunity to conduct research with the Public Defender, District Attorney, Court Services, the judiciary, and other institutions in Washoe County, Nevada. Research Experience: While at the University of Nevada, Reno I worked as a Research Assistant and Project Manager at the Grant Sawyer Center for Justice Studies where I assisted with several national surveys, including one that examined the judiciary's understanding and application of the Daubert standard. I also explored how jurors “ minimize ” what they have read, seen, or heard about high profile cases during voir dire. In addition, I oversaw a study of the Washoe County's pretrial release program and assisted with the development of training programs for foreign justices, court administrators, prosecutors, and defense attorneys who were brought to the United States by the Department of State. Further, I have conducted and published research on the impact of illegitimate factors on juror decision-making. This research included developing and testing a model that attempted to explain how factors such as race and empathy influence pre- and post-deliberation sentencing decisions in capital cases. My research on juror decision-making in capital cases was later published as a book. Since completing my studies I have also published on the impact of graphic images on jurors, and on methodological issues associated with online survey research. Jury Research Experience: I began working as a trial consultant in 1998 and co-founded Trial Innovations in 2010. Over the years I have worked on hundreds of criminal and civil cases across the country. As a trial consultant I have conducted mock trials, focus groups, surveys, posttrial interviews, and other research exercises. I have consulted in the courtroom and assisted with jury selection on more than 100 cases. I have also served as a presenter at local bar associations, law firms, national meetings, and conferences. In addition, I have been invited to conduct MCLE courses related to jury selection by the Public Defender, Alternate Defender, and District Attorney in California, Nevada, and New Mexico. I have also served as a guest lecturer at the University of Santa Cruz, Saint Mary's College, and Stanford Law School. Venue Experience: As a graduate student, I was trained by Dr. Ronald Dillehay and Dr. Edward Bronson, two of the leading experts in the country on venue and pretrial publicity. Over the years I have had the opportunity to work with Dr. Bronson on a number of change of venue 2 DECLARATION OF BRYAN EDELMAN studies. I have worked on change of venue issues in several different capacities. As a researcher I have coded trial transcripts in high profile cases to evaluate how jurors “ minimize ” their bias and exposure to pretrial publicity during voir dire, and the challenges this phenomenon poses for judges and attorneys. In addition, I examined the impact of television pretrial publicity on prejudgment of guilt. I have also presented as a panelist on change of venue issues at the American Society of Trial Consultants ' annual conference and been a co-author on the chapter in the “ California Criminal Law Procedure and Practice ” on change of venue since 2011. I have conducted content analyses of media coverage on a host of topics and have designed more than 50 community attitude surveys over the years. I have been retained as an expert to conduct and evaluate change of venue studies, and also to recommend remedial measures for addressing exposure to pretrial publicity outside of a change of venue. Expert Witness Experience: I have been retained as an expert witness on matters including freedom of religion in China (political asylum hearing), eyewitness identification, and change of venue. I have testified as an expert witness in person or by declaration in California, Idaho, Colorado, Texas, Michigan, Florida, Massachusetts, Nevada, Pennsylvania, Tennessee, West Virginia, and Washington in state and federal court. In the majority of cases I have been retained to conduct a change of venue study, ¹ I have recommended against a change of venue. III. THE INFLUENCE OF ATTITUDES ON COGNITION2 There is a substantial body of literature documenting the impact of attitudes on information processing. Attitudes have been shown to have an impact on selective attention, the evaluation of new information, memory recall, and behavior. This research provides insight into how media coverage may lead to juror bias. Pretrial publicity can have a prejudicial effect on jurors through its impact on the formation of attitudes and beliefs that they bring into the courtroom. Attitudes are not isolated entities but are often linked to other memories, experiences, attitudes, and beliefs. These links can create large networks of attitudes, which are resistant to change. The links between attitudes strengthen with repeated activation. As these links strengthen, the probability increases that the attitudes and underlying beliefs will be consistent with one another and brought to awareness simultaneously. 1 These exclude instances where I have been hired to review a change of venue survey, assist with addressing media coverage during voir dire, or review trial transcripts and pretrial publicity as part of a post-conviction appeal. 2 Cognition is a term referring to the mental processes involved in gaining knowledge and comprehension, including thinking, knowing, remembering, judging and problem solving. 3 DECLARATION OF BRYAN EDELMAN Attitudes that are strongly linked to one another are more easily accessible in memory and more likely to be automatically activated with exposure to the attitude object. Attitudes can be activated automatically without any conscious, intentional processing. This is more likely to occur when an attitude has been repeatedly activated in the past.3 When media coverage surrounding a case is broad, extensive, and redundant, strong links between relevant attitudes and beliefs begin to form. If the pretrial publicity creates links between case details, attitudes, and beliefs over the course of a trial, these attitudes are likely to be automatically activated at a subconscious level. As described below, this network of linked attitudes can have an impact on a juror's attention to and evaluation of the evidence and arguments presented in court. As the network of linked attitudes grows and strengthens, specific attitudes become resistant to change because change requires revisions to other attitudes and beliefs within the network. Resistance to revising well-established attitudes has been shown to lead to biased information processing. When attitudes are strong, there is a tendency to favor arguments and information in support of those attitudes over arguments that may disprove them. The acceptance of a counterargument can create cognitive dissonance.4 In an effort to avoid cognitive dissonance, information that supports attitudes may be selectively attended to and counterarguments may be distorted or dismissed.5 Attitudes can also have an impact on attention and recall. Research has shown that information that supports a preexisting attitude is easier to learn, more accurately retained and easier to recall. The links formed between attitudinally supporting information and preexisting attitudes are stronger than those formed between counterarguments and preexisting attitudes. As a result, the latter is more difficult to retrieve from memory. Further, there is a tendency to produce new beliefs, which support preexisting attitudes and suppress those that run counter to such attitudes. In sum, when a venue is exposed to prejudicial media coverage surrounding a crime, there is a risk that potential jurors will develop a large network of linked attitudes and beliefs relating to the victim, the defendant, and the crime. These linked attitudes include opinions about the guilt of 3 Eagley, A.H., & Chaiken, S. (1993). The psychology of attitudes. Florida: Harcourt Brace College Publishers. 4 Cognitive dissonance is an uncomfortable feeling caused by holding two contradictory ideas simultaneously. People have a motivational drive to reduce dissonance by changing their attitudes, beliefs, and behaviors or by justifying or rationalizing them. 5 For example, people list more counterarguments for information that refutes preexisting attitudes than information that supports them. 4 DECLARATION OF BRYAN EDELMAN the defendant, appropriate sentence and evaluations of the evidence presented through the media. When the links between attitudes are strong, they can be activated at a subconscious level and have an impact on jurors ' evaluation of the evidence and arguments presented at trial. Attitudinally supporting arguments will be more closely attended to, evaluated as persuasive, integrated into the existing network of attitudes and beliefs and made easily accessible during deliberations. In contrast, counterarguments and evidence conflicting with well-established attitudes may create cognitive dissonance. As a result, jurors will either ignore this evidence or make