Response to Associated Press Motion to Intervene

Filed: 06/06/2023 15:59:58 Second Judicial District, Latah County Julie Fry, Clerk of the Court
By: Deputy Clerk-Reeves, Tamzen
LATAH COUNTY PROSECUTOR'S OFFICE

WILLIAM W. THOMPSON, JR.

BRADLEY J. RUDLEY

CHIEF CIVIL DEPUTY PROSECUTING ATTORNEY

Latah County Prosecutor's Office P.O. Box 8068 Moscow, Idaho 83843-0568
Phone: (208) 883-2246 ISB No. 9555 paservice@latahcountyid.gov
IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF

THE STATE OF IDAHO, IN AND FOR THE COUNTY OF LATАН

STATE OF IDAHO,

Case No. CR29-22-2805 Plaintiff,
RESPONSE TO ASSOCIATED

V. PRESS ' MOTION TO

INTERVENE AND MOTION TO

BRYAN CHRISTOPHER KOHBERGER, VACATE THE AMENDED

NONDISSEMINATION ORDER

Defendant.

In Response to the Associated Press ' Motion to Intervene and Motion to Vacate the Amended Nondissemination Order in this case, the State incorporates the argument and legal analysis provided in its Brief in Opposition to Writ by Intervenor-Respondent State of Idaho / Latah County before the Idaho Supreme Court in Docket No. 50482-2023. That briefing is attached to this Response and incorporated herein.

With the decision in In Re Petition for Writ of Mandamus or Writ of Prohibition, it is now this Court's prerogative to determine the impact of the Amended Nondissemination Order (“ Order ") on the Associated Press ' First Amendment rights, and whether the Order is " vague, overbroad, unduly restrictive, or not narrowly drawn. " No. 50482, 2023 WL 3050829 (Idaho Apr. 24, 2023). As outlined
RESPONSE TO ASSOCIATED PRESS MOTION

TO INTERVENE AND MOTION TO VACATE

AMENDED NONDISSEMINATION ORDER 1

in the attached Brief, this Court should follow the reasoning of the Ninth and Second Circuit Courts of Appeal in Radio and Television News Assʼn of Southern California v. U.S. Dist. Court for Cent.

Dist. of California, 781 F.2d 1143 (9th Cir. 1986) and In Re Application of Dow Jones & Company, Inc., 842 F.2d 603 (2d Cir. 1988). Even though the Order might impact the Associated Press ' ability to interview the parties subject to the Order, this incidental impact does not amount to a “ prior restraint ” on the speech of the Press or rise to the level of strict scrutiny.

Balancing First and Sixth Amendment interests in this case, the Amended Nondissemination Order is not vague, overbroad, or unduly restrictive as it limits only the speech of “ 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. ” These parties have special insights and information on the case, and limiting their speech to only those documents which are part of the " official public record of the case ” provides a fair balance of First and Sixth Amendment rights.

Even if strict scrutiny applies, the Order addresses the “ serious and imminent threat ” that unrestricted extrajudicial statements pose in a case surrounded by intense publicity, is narrowly drawn to trial participants, attorneys involved in the case, and is the least restrictive alternative. See Levine v. U.S.

Dist. Court for Cent. Dist. of California, 764 F.2d 590, 597-601 (1985).

Regarding the question of whether the order is narrowly drawn, neither voir dire, jury instructions, change of venue or postponement, or sequestration of the jury could “ address the threat to judicial integrity posed by prejudicial extrajudicial statements. ” Id. at 599-601. As articulated in Levine, adopting any of the above alternatives would not address the issue of prejudicial pretrial publicity and " would be either ineffective or counterproductive. ” Id. at 600.

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TO INTERVENE AND MOTION TO VACATE

AMENDED NONDISSEMINATION ORDER 2

The Associated Press continues to argue that specific evidence of a Sixth Amendment infringement must be shown and that the court should only look at the evidence and state of the case at the time the initial Nondissemination Order was entered. These contentions are incorrect. As the Fifth Circuit Court of Appeals explained in U.S. v. Brown:
[T] rial courts have “ an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity. ” Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct.

2898, 2904, 61 L.Ed.2d 608 (1979); see also Chandler v. Florida, 449 U.S. 560, 101 S.Ct. 802, 809, 66 L.Ed.2d 740 (1981) (“ Trial courts must be especially vigilant to guard against any impairment of the defendant's right to a verdict based solely upon the evidence and the relevant law. "); * 424 United States v. Noriega, 917 F.2d 1543, 1549 (11th Cir.) (per curiam), cert. denied sub nom. Cable News Network v. Noriega, 498 U.S. 976, 111 S.Ct. 451, 112 L.Ed.2d 432 (1990)... The vigilance of trial courts against the prejudicial effects of pretrial publicity also protects the interest of the public and the state in the fair administration of criminal justice.

This duty comports with the constitutional status of all First Amendment freedoms, which are not absolute but must instead be “ applied in light of the special characteristics of the [relevant] environment. ” Tinker v. Des Moines Indep.

Community Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969).

Indeed, " [a] lthough litigants do not ‘ surrender their First Amendment rights at the courthouse door, ' those rights may be subordinated to other interests that arise ” in the context of both civil and criminal trials. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 2207–08 n. 18, 81 L.Ed.2d 17 (1984). “ [O] n several occasions this Court has approved restriction on the communications of trial participants where necessary to ensure a fair trial for a criminal defendant. ” Id. There can be no question that a criminal defendant's right to a fair trial may not be compromised by commentary, from any lawyer or party, offered up for media consumption on the courthouse steps. See Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543 (1965) (“ We have always held that the atmosphere essential to the preservation of a fair trial-the most fundamental of all freedoms-must be maintained at all costs. ");
Pennekamp, 66 S.Ct. at 1047 (Frankfurter, J., concurring) (“ In securing freedom of speech, the Constitution hardly meant to create the right to influence judges or juries. ") [I] n Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), the Supreme Court vacated on prior restraint grounds an order prohibiting the press from publishing accounts about certain evidence that would be used in a widely reported murder trial taking place in a small, rural community. See 96 S.Ct. at
2807. In doing so, the Court endorsed Sheppard ' s proposal that trial courts employ methods short of prior restraints on the press, including the prohibition of extrajudicial comments by trial participants, in order to mitigate the potentially prejudicial effects
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of pretrial publicity. See id. at 2800–01; see also Foxman, 939 F.2d at 1514 (11th Cir.1991).

218 F.3d 415, 425-28 (5th Cir. 2000). Thus, the Court has a duty to consider the overall effect of possible prejudicial pretrial publicity, and to balance that effect between the First and Sixth Amendment rights of the parties involved.

The Order in this case is in line with the Court's duties in Sheppard and is drawn as required by the U.S. Supreme Court decision in Nebraska Press Ass'n. The Order is not vague, overbroad, or unduly restrictive. The Order is a reasonable and viable option for this Court to meet its duties under Sheppard and only incidentally impacts the Associated Press ' ability to interview trial participants.

While others may claim to be bound by the Order, it clearly only restricts the speech of those participants with special information about the case. Thus, this Court should adopt the reasoning of the Ninth Circuit Court of Appeals in Radio and Television News Ass ' n and In Re Application of Dow Jones & Company, Inc., in holding that the incidental impact of the Order upon the Media's ability to interview trial participants is an adequate balance to the reasonable likelihood posed by prejudicial pretrial publicity.

Respectfully submitted this 6th day of June, 2023.

Bradley Radley Bradley Rudley Chief Civil Deputy Prosecuting Attorney
RESPONSE TO ASSOCIATED PRESS MOTION

TO INTERVENE AND MOTION TO VACATE

AMENDED NONDISSEMINATION ORDER 4

CERTIFICATE OF DELIVERY

I hereby certify that true and correct copies of the RESPONSE TO ASSOCIATED PRESS
MOTION TO INTERVENE AND MOTION TO VACATE THE AMENDED

NONDISSEMINATION ORDER was served on the following in the manner indicated below:
Jeffery D. Nye jeff.nye@ag.idaho.gov Email Ingrid Christina Batey ingrid.batey@ag.idaho.gov Email Elsa G. Massoth emassoth@kmrs.net Email Anne Chere Taylor pdfax@kcgov.us Email Shanon Gray shanon@graylaw.org Email Wendy Jo Olosn wendy.olson@stoel.com Email Cory Michael Carone cory.carone@stoel.com Email Dated this 6th day of June, 2023.

Bek
RESPONSE TO ASSOCIATED PRESS MOTION

TO INTERVENE AND MOTION TO VACATE

AMENDED NONDISSEMINATION ORDER 5

Electronically Filed
3/3/2023 3:58 PM

Idaho Supreme Court Melanie Gagnepain, Clerk of the Court
By: Melanie Gagnepain, Clerk
IN THE SUPREME COURT OF THE STATE OF IDAНО

THE ASSOCIATED PRESS; RADIO SUPREME COURT DOCKET NO.

TELEVISION DIGITAL NEWS

ASSOCIATION; SINCLAIR MEDIA OF 50482-2023

BOISE, LLC / KBOI-TV (BOISE); THE

MCCLATCHY COMPANY, LLC; STATES BRIEF IN OPPOSITION TO WRIT

NEWSROOM dba IDAHO CAPITAL SUN; BY INTERVENOR-RESPONDENT
THE SEATTLE TIMES; TEGNA INC./KREM STATE OF IDAHO / LATAH

(SPOKANE); KTVB (BOISE) AND KING COUNTY PROSECUTOR

(SEATTLE); EASTIDAHONEWS.COM; THE

LEWISTON TRIBUNE; WASHINGTON

STATE ASSOCIATION OF

BROADCASTERS; ADAMS PUBLISHING

GROUP dba POST REGISTER; 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; BOISE STATE PUBLIC RADIO;
THE TIMES-NEWS; THE SPOKESMAN-

REVIEW / COWLES COMPANY; COEUR D

ALENE PRESS; THE NEW YOUR TIMES

COMPANY; DAY365 dba BOISEDEV;
LAWNEWZ, INC.; SCRIPPS MEDIA, INC., a Delaware corporation; ABC, INC.; WP COMPANY LLC, dba THE WASHINGTON
POST; SOCIETY OF PROFESSIONAL

JOURNALISTS,

Petitioners,
V.

SECOND JUDICIAL DISTRICT OF THE

STATE OF IDAHO, COUNTY OF LATAH;

HONORABLE MEGAN E. MARSHALL,

MAGISTRATE JUDGE,

Respondents.

and

BRYAN C. KOHBERGER and STATE OF
IDAHO, LATAH COUNTY PROSECUTOR,

Intervenor-Respondents.

For Petitioners For Respondent WENDY J. OLSON, ISB NO 7634 Deborah A. Ferguson, ISB No. 5333 wendy.olson@stoel.com Craig H. Durham, ISB No. 6428 Cory M. Carone, ISB No. 11422 FERGUSON DURHAM PLLC cory.carone@stoel.com 223 N. 6th St. Suite 325 STOEL RIVES LLP Boise, ID 83702 101 S. Capitol Boulevard, Suite 1900 Boise, ID 83702-7705 For Intervenor-Respondents
LATAH COUNTY PROSECUTOR'S OFFICE

WILLIAM W. THOMPSON, JR. ISB No. 2613 Prosecuting Attorney BRADLEY J. RUDLEY ISB No. 9555 Chief Civil Deputy Prosecuting Attorney Latah County Courthouse PO Box 8068 Moscow, Idaho 83843-0568
Phone: (208) 883-2246 paservice@latahcountyid.gov
BRYAN C. KOHBERGER

Anne C. Taylor, Public Defender
ΚΟΟΤΕΝΑΙ 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 Assigned Attorney:
Anne C. Taylor, Public Defender, Bar Number:
5836 Jay Weston Logsdon, Chief Deputy Litigation,
Bar Number: 8759
BRIEF IN OPPOSITION

BY INTERVENOR-STATE OF IDAHO 2

TABLE OF CONTENTS

Page (s)
TABLE OF AUTHORITIES..4

I. INTRODUCTION..6

II. STATEMENT OF THE CASE. 8

III. ISSUE PRESENTED 9

IV. STANDARD OF REVIEW. 9

V. ARGUMENT. 10

A. The Petitioners have not demonstrated an infringement of their First Amendment rights as the “ Amended Nondissemination Order ” only effects the ability of specific parties in the underlying criminal case to answer the Petitioners ' questions. 11
1. This Court should follow the Ninth and Second Circuit Court of Appeals ' reasoning and apply that test to this matter because the “ Amended Nondissemination Order ” does not infringe on Petitioners ' speech, ability to gather information, or constitute a denial of access to the court proceedings. 12
2. The " Amended Nondissemination Order ” is in line with the requirements of the Idaho Rules of Professional Conduct and the power of the Court to limit the speech of attorneys, law enforcement personnel, investigators, and their agents. 15 B. Even if the Court finds that strict scrutiny applies, the “ Amended Nondissemination Order ” is the least restrictive alternative, narrowly drawn, to address the “ clear and present danger ” or " serious and imminent threat ” that is posed by unmanaged extrajudicial statements...... 17 C. The Court should not expand the First Amendment rights of the Petitioners by adopting a " right to access trial participants. ”. 19
VI. CONCLUSION 20

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BY INTERVENOR-STATE OF IDAHO 3

TABLE OF AUTHORITIES

Cases Page (s) Bridges v. California,
314 U.S. 252 (1941) 6,7

CBS Inc. v. Young, 522 F.2d 234 (6th Cir. 1975) 14 Cowles Publishing Co. v. Magistrate Court of the First Judicial Dist. of State, County of Kootenai, 118 Idaho 753 (1990) 19 In Re Application of Dow Jones & Company, Inc., 842 F.2d 603 (2d Cir. 1988) 7, 11-15 Levine v. U.S. Dist. Court for Cent. Dist. of California, 764 F.2d 590 (1985) Passim Michigan v. Sledge, 879 N.W.2d 884 (Mich. Ct. App. 2015). 14 Nebraska Press Ass'n v. Stuart,
427 U.S. 539 (1976) 7, 10, 16-19

Nixon v. Warner Communications, Inc.,
435 U.S. 589 (1978) 10

Pell v. Procunier,
417 U.S. 817, 834-35 (1974) 6, 19

Press-Enter. Co. v. Superior Court of California,
478 U.S. 1 (1986) 7,20

Radio and Television News Ass'n of Southern California v. U.S. Dist. Court for Cent. Dist. of California, 781 F.2d (9th Cir. 1986) Passim
Re: Petition for Writ of Prohibition, 168 Idaho 909 (2021) 10 Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980) 19

Sheppard v. Maxwell,
384 U.S. 333 (1966) 12, 17

State v. District Court of Fourth Judicial Dist., 143 Idaho 695 (2006) 9 State v. Spencer, 74 Idaho 173 (1953) 10 Statutes Article I, Section 9 of the Idaho Constitution 11, 19 Article V, Section 9 of the Idaho Constitution 9 U.S. Const, amend I..... Passim
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U.S. Const, amend VI 10 Rules Rule 3.6 of the Idaho Rules of Professional Conduct. Passim Rule 3.8 of the Idaho Rules of Professional Conduct. 11, 16
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BY INTERVENOR-STATE OF IDAHO 5

I.

INTRODUCTION

" [F] ree speech and fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between them. " Bridges v. California, 314 U.S. 252, 260 (1941). The Court need not engage in the “ delicate balancing ” of these rights where the sole basis of the claimed infringement is access to interviews by the media. See Pell v. Procunier, 417 U.S. 817, 834-35 (1974). For the rights of the media to gather information are no greater than those of the general public. Id.

This case involves the duty of the Court, counsel for the accused, and the prosecutor to safeguard the rights of the parties to a fair and impartial jury trial. On January 18, 2023, Respondent, Judge Megan E. Marshall, entered an “ Amended Nondissemination Order ” in the case of State of Idaho v. Bryan C. Kohberger, CR29-22-2805 (“ underlying criminal case ”) which orders that:
1. 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 [SIC], and agents for the prosecuting attorney or defense attorney are prohibited from making extrajudicial statements (written or oral) concerning this case, except, without additional comment, a quotation from or references to the official public record of the case.

Declaration of Wendy J. Olson (“ Olson Decl. ”), Ex. C. The “ Amended Nondissemination Order ” was issued after an in-chambers meeting between the parties and the attorneys for the victim's families. Declaration of Deborah A. Ferguson (“ Ferguson Decl. ”), Ex. A. While many may claim to be bound by the “ Amended Nondissemination Order, ” ¹ the Order specifically limits the 1 See Petition for a Writ of Mandamus or Writ of Prohibition, pp. 3-4 (citing instances where persons or agencies, who are not a part of this matter, refused to answer an interview question on the basis of the “ Amended
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speech of “ attorneys, for any interested party... any attorney representing a witness, victim, or victim's family... investigators, law enforcement personal [SIC], and agents for the prosecuting attorney and defense attorney ” in line with Rule 3.6 of the Idaho Rules of Professional Conduct.

Following the entry of the “ Amended Nondissemination Order, ” the Petitioners in this case, approximately 30 media companies, filed for the issuance of Writ of Mandamus or Writ of Prohibition to “ vacat [e] or nullify [] the amended gag order. ” This case, however, is not about a restriction on speech of the press, a contempt order, or the closure of a court proceeding, 2 but the safeguarding of the right to a fair trial by an impartial jury and the incidental effects of the " Amended Nondissemination Order ” on the Petitioners ' ability to interview certain trial participants.

First, the Petitioners are not entitled to a Writ of Mandamus or Writ of Prohibition because their First Amendment rights have not been infringed by the incidental effects of the " Amended Nondissemination Order. " The Petitioners are free to seek interviews from witnesses and observe the court proceedings in the underlying case. This Court should follow the reasoning of the Ninth and Second Circuit Court of Appeals in Radio and Television News Ass'n of Southern California v. U.S. Dist. Court for Cent. Dist. of California, 781 F.2d 1143 (9th Cir.

1986) and In Re Application of Dow Jones & Company, Inc., 842 F.2d 603 (2d Cir. 1988).

Even if the Court were to expand the powers of the media to attack lawful orders in criminal cases which bind those parties involved to the Rules of Professional Conduct, the Nondissemination Order. ") 2 See Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) (Addressing an order which specifically restricted the press from publishing or broadcasting a confession); Bridges, 314 U.S. at 258 (Relating to contempt proceedings and fines by the Court for comments related to pending litigation); and Press-Enter. Co. v. Superior Court of California, 478 U.S. 1 (1986) (Holding that there is a qualified First Amendment right to access to criminal hearings).

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" Amended Nondissemination Order ” meets the dictates of “ strict scrutiny ” because the Order addresses the “ serious and imminent threat ” that unrestricted extrajudicial statements pose in a case surrounded by intense publicity, is narrowly drawn to trial participants, and is the least restrictive alternative. See Levine v. U.S. Dist. Court for Cent. Dist. of California, 764 F.2d 590, 597-601 (1985). Finally, the Court should not create a First Amendment right which has not been recognized-the right to access or interview trial participants. Thus, the Respondent-Intervenor requests that the Court DENY the Petition for a Writ of Mandamus or Writ of Prohibition.

II.

STATEMENT OF THE CASE

As set out by Respondent-Intervenor State of Idaho / Latah County Prose