State Opposition to Motion to Continue

Electronically Filed
6/5/2025 3:56 PM

Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court
By: Jennifer Keyes, Deputy Clerk
LATAH COUNTY PROSECUTOR'S OFFICE

WILLIAM W. THOMPSON, JR., ISB No. 2613
PROSECUTING ATTORNEY

ASHLEY S. JENNINGS, ISB No. 8491
SENIOR DEPUTY PROSECUTING ATTORNEY

JOSHUA D. HURWIT, ISB. No. 9527
SPECIAL DEPUTY PROSECUTING ATTORNEY

Latah County Courthouse 522 S. Adams Street, Ste. 211 Moscow, ID 83843
Phone: (208) 883-2246 paservice@latahcountyid.gov
IN THE DISTRICT COURT OF THE FOURTH DISTRICT OF THE

STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA

STATE OF IDAHO, Case No. CR01-24-31665 Plaintiff,
STATE'S OPPOSITION TO

DEFENDANT'S MOTION TO

CONTINUE

V.

BRYAN C. KOHBERGER,

Defendant.

COMES NOW the State of Idaho, by and through the Latah County Prosecuting Attorney, and submits the following opposition to Defendant's Motion to Continue (the “ Motion ”).

INTRODUCTION

It is time to try this case. Defendant was arrested in late December of 2022 and was indicted in May of 2023. He successfully moved to transfer venue to Ada County. In October
STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE 1

2024, this Court entered its Scheduling Order¹ setting deadlines for pretrial motions and expert disclosures. Defendant complied with those deadlines without moving for a continuance, including by disclosing six expert reports for the penalty phase, disclosing over 2,100 pages of purported mitigation materials, listing 55 penalty phase witnesses, and identifying 132 exhibits he may introduce during the penalty phase of trial.

But now, after all discovery deadlines have passed and after the Court conducted the pre-trial conference, Defendant seeks a trial continuance of unspecified length. He bases his request on his claim that his mitigation investigation is incomplete. While State is unable to see whether Defendant's ex parte filing to the Court contains specifics, his Motion does not.

Defendant has not shared what new evidentiary materials he seeks to obtain or how additional investigation will actually produce them. Overall, the record before the Court shows that Defendant's investigation has already plowed the necessary ground.

While Defendant is fully entitled to due process, this Court should exercise its broad discretion to deny Defendant's eleventh-hour Motion. First, Defendant cannot show good cause or prejudice. Even under the heightened, non-binding ABA standards he seeks to impose on the Court, his counsel's resources and investigation to date have been adequate, even setting aside that the defense team still has more time to prepare its mitigation case. Moreover, Idaho's Constitution also grants the victims the right to a “ timely disposition ” of this case. The Court should give these victims ' rights substantial weight in considering the Motion. Finally, while the publicity surrounding this trial is a challenge, Defendant has not shown — and cannot show — that continuing this trial will make things any easier. It is just as likely that delay will make it harder to seat a jury.

1 Redacted Order Governing Further Criminal Proceedings and Notice of Trial Setting, Oct. 9, 2024.

STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE 2

For all these reasons, the Court should deny Defendant's Motion.

PROCEDURAL AND FACTUAL BACKGROUND

Defendant was appointed his lead counsel in December of 2022. In March 2023, a second attorney was appointed to represent him. Then, in February of this year, a third attorney was appointed to the defense team. The First District Public Defender has also been participating in the defense. In addition to his lawyers (and their staff), Defendant has two experienced investigators and a mitigation specialist working on his behalf.

In January 2024, Defendant moved for a change of venue from Latah County due to the publicity surrounding the case and the size of Latah County. His motion was granted, and the case was moved to Ada County. On October 9, 2024, this Court issued the operative Scheduling Order that contained deadlines for motions, expert disclosures, and pre-trial filings.

More recently, at the pretrial motions hearing on April 9, 2025, the Court advised Defendant's counsel to ask for more resources if the defense team needed assistance reviewing discovery. The State does not know if this occurred.

Throughout the case, Defendant has been able to comply with the deadlines in the Scheduling Order. Pertinent to the instant Motion, Defendant has:
• On January 23, 2025, made his guilt phase expert disclosures, consisting of reports from 16 experts, including a psychologist who conducted a mental health examination of Defendant (Dr. Orr) and a forensic psychiatrist who researched his life history (Dr.

Ryan);
• On March 3, 2025, supplemented his guilt phase expert disclosures with reports from two additional experts;
• As of June 2025, had disclosed in discovery over 2,500 photos and videos, over 3,500 pages of investigative materials, and many megabytes of electronic data related to the guilt phase;
STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE 3

• On March 31, 2025, made his penalty phase expert disclosures, consisting of amended reports from Dr. Orr and Dr. Ryan, respectively, plus reports from four additional experts, three of whom are behavioral health / neurology professionals; and
• As of June 2025, had disclosed approximately 2,100 pages of purported mitigation materials and identified 55 defense witnesses and 132 defense exhibits for potential use during the penalty phase in this case.

Defendant also opposed the State's Motion for Examination of Defendant Pursuant to Idaho Code §18-207 and for an Extension of Time to Complete Rebuttal Penalty Phase Expert Disclosures (argued May 5, 2025). At that time, Defendant did not preview for the State or the Court that he would seek a trial continuance, and the Court denied the State's request for personality testing by its expert, in part, because the pending trial date conflicted with the time that would be necessary to explore that issue.

LEGAL BACKGROUND

" Trial judges necessarily require a great deal of latitude in scheduling trials. " State v.

Cagle, 891 P.2d 1054, 1057 (Idaho Ct. App. 1995). Accordingly, “ [t] he decision to grant or deny a motion for a continuance rests within the sound discretion of the trial court. " State v. Ransom, 864 P.2d 149, 152 (Idaho 1993). When reviewing a trial court's decision for an abuse of discretion, Idaho appellate courts analyze “ [w] hether the trial court [:] (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choice available to it; and (4) reached its decision by the exercise of reason. ” State v. Radue, 564 P.3d 1230, 1244 (Idaho 2025).

The United States Supreme Court has held that the denial of a motion for a continuance is grounds for relief only where the trial court's action “ is so arbitrary as to violate due process. ” Ungar v. Safafite, 376 U.S. 575, 589 (1964). Similarly, under Idaho law, “ unless an appellant
STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE 4

shows that his or her substantial rights have been prejudiced by reason of a denial of his or her motion for a continuance, appellate courts can only conclude that there was no abuse of discretion. ” Cagle, 891 P.2d at 1057. “ The bare claim that additional investigation could have been conducted is not sufficient to demonstrate unfair prejudice so as to support a motion for a continuance. ” State v. Tapia, 899 P.2d 959, 965 (Idaho 1995); see also Rowe v. Katavich, No. CV 13–2916 CAS (JCG), 2014 WL 4244336, at * 2 (C.D. Cal. Aug. 26, 2014) (reviewing Ninth Circuit caselaw and explaining that there are no “ mechanical tests " for deciding when such a denial violates due process but that, “ at a minimum, some showing of actual prejudice must be made "). 2 In exercising their discretion, trial courts are also guided by the Victims ' Rights Amendment to the Idaho Constitution (Art. I § 22) and Idaho Code § 19-5306. Both provisions entitle victims to “ a timely disposition of the case. " Section 19-5306 (3) expressly provides that this right " shall apply equally to the immediate families of homicide victims. ”
ARGUMENT

Defendant couches his Motion in terms of his constitutional rights to due process, to effective assistance of counsel, to an individualized sentencing determination, and to a fair trial in light of intense media coverage. But he has not demonstrated that these rights — which must be evaluated alongside the victims ' rights and the overall administration of justice — will be violated if this case proceeds as currently scheduled. For the reasons discussed below, the Court should deny his Motion.

2 In considering a motion for a continuance, Ninth Circuit precedent holds that a trial court " must consider: (1) the defendant's diligence prior to the requested continuance; (2) whether the continuance would have served a useful purpose; (3) the possible inconvenience to the prosecution and / or court;
and (4) whether the defendant was prejudiced by the denial of the requested continuance. ” Id. (citing Armant v. Marquez, 772 F.2d 552, 556 (9th Cir. 1985)).

STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE 5

I. The Court Should Exercise Its Discretion to Deny Defendant's Motion Because He Has Not Shown Good Cause for a Continuance or That He Will Be Prejudiced at Trial.

The Court should deny Defendant's Motion because he cannot show good cause or potential prejudice. Procedurally, he does not explain why he waited to seek a continuance until after discovery closed, expert disclosure deadlines passed, and the pretrial conference happened.

Substantively, he ignores Idaho Supreme Court death penalty precedent holding that counsel is " not required to investigate [a defendant's] entire life ” before he can be tried or sentenced. State v. Row, 955 P.2d 1082, 1092 (1998). He neither specifies additional areas for investigation nor explains what concrete investigatory steps will bear new fruit at either the guilt phase or the penalty phase. As such, Defendant's Motion amounts to a request for a perpetual continuance so that his counsel can go down every rabbit-hole until Defendant─rather than the Court — deems himself ready for trial. The law requires no such thing. See Mahaffey v. Page, 151 F.3d 671, 685 (7th Cir.

1998) vacated in part by 162 F.3d 481 (7th Cir. 1999) (“ A reasonable investigation does not mandate a scorch-the-earth strategy, a requirement that would fail to consider the limited time and resources that defense lawyers have in preparing for a sentencing hearing ”). The Court should deny the Motion because Defendant's team has had the opportunity to prepare and has adequately addressed the issues he claims need more attention.

A. Defendant's Motion Is Untimely Given the Procedural Posture of This Case.

The Scheduling Order granted the parties ample time for trial preparation, and it also set several interim deadlines along the way, including for penalty phase expert disclosures and mitigation disclosures, which is the primary basis for Defendant's Motion. The State also understands that the Court set the pre-trial conference more than two months before trial in order
STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE 6

to give the parties sufficient time to prepare for trial after discovery closed and pre-trial disclosures and motions practice were completed.

If Defendant was having trouble meeting deadlines, finding experts, or pursuing “ red flags, " (Mot. 29), he should have sought a discovery extension or trial continuance long before now. See Marquez, 772 F.2d at 556 (stating that a court should consider a defendant's diligence and the inconvenience to the court and prosecution when reviewing a motion to continue). He did not do so. Instead, Defendant retained over a dozen guilt phase experts, six penalty phase experts, a mitigation specialist, and has identified over 2,100 pages of purported mitigation materials. And, leading up to the pre-trial conference, he exchanged witness lists and exhibit lists with the State without stating that he would be moving for a continuance.

While Defendant relies on the “ death is different ” mantra and argues that “ extraordinary measures ” must be taken to protect his rights (Mot. 4), he cites no authority for the proposition that reasonable scheduling orders should not be enforced in death penalty cases. Indeed, Defendant recently argued that the State improperly delayed in seeking an extension of time for its rebuttal phase expert disclosures. (Objection to State's Motion for Examination of Defendant Pursuant to Idaho Code § 18-207 and for an Extension of Time to Complete Rebuttal Penalty Phase Expert Disclosures (filed Apr. 29, 2025) 4 (“ The State has not provided the necessary proof of good cause to warrant an extension of such a significant deadline so close to the trial date. ”).) The same principle should apply to him. Defendant's Motion is untimely and weighs in favor of its rejection.

B. Defendant's Purported Need to Conduct Additional Investigation Is Unsupported and Does Not Establish Prejudice Warranting a Continuance.

Defendant bases his Motion on a claim of insufficient resources and the need to conduct more investigation prior to trial. But he has not demonstrated that he is being deprived of anything
STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE 7

that he seeks. Thus, Defendant's claims about the current state of the defense team's preparations are " matter [s] of speculation " and not the type of “ demonstrable reality ” needed to support a continuance based on Defendant's constitutional rights. United States ex rel. Darcy v. Handy, 351
U.S. 454, 462 (1956).

1. Defendant's Legal Resources Have Been More Than Adequate.

Defendant has three trial attorneys (including a lead attorney who has represented him from day one) two investigators, and the assistance of at least one additional public defense attorney.

He also has engaged an outside mitigation specialist to assist in obtaining materials for use during the penalty phase. This record reflects that this defense team has been working hard for defendant and, as explained below, has met the professional standards for the defense of a death penalty case.

Yet Defendant still claims that the Court is “ cutting off ” his review of discovery. (Mot.

29-31.) This is unfounded. Defendant's attorneys have had sufficient time to review discovery and have not established any discovery violations by the State. They have been able to identify over 1,000 exhibits and nearly 200 witnesses for trial. Indeed, the Court also recently admonished Defendant's counsel to seek additional resources from the Resource Judge if they needed more assistance to review discovery and prepare for trial. Defendant has not claimed that he sought more resources and was denied. Neither the size of his legal team nor the need to continue to review discovery form a valid basis for a continuance.

2. Defendant's Expert Witness Resources Have Been More Than Adequate.

Defendant has been able to retain a large retinue of experts, including six experts focused on mitigation for the penalty phase. Five of these experts are mental health professionals. Both a psychologist and a forensic psychiatrist have examined Defendant on multiple occasions, reviewed
STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE 8

his social and medical history, and diagnosed him with autism, OCD, and ADHD. Collectively, these experts took a deep dive into Defendant's entire life, including by interviewing his family, teachers, co-workers, and even a psychologist who evaluated Defendant as a child. The extensive investigations by these experts contradict Defendant's claim that he needs more time to complete a " social history investigation. ” (Mot. 27.) In the cases he cites, counsel was ineffective for failing to explore mental health conditions or for failing to provide mental health experts with sufficient background information. In contrast, here, Defendant's mental health experts have had access to a significant amount of people and materials and have created fulsome histories through their own investigation.

Defendant's claim that his team needs to follow up on “ red flags ” is also unsubstantiated.

(Mot. 15.) In their reports, neither his psychologist nor his forensic psychiatrist indicated they could not render opinions because of unexplored areas. In fact, the forensic psychiatrist concluded that Defendant showed no signs of other serious psychotic disorders, and, at a recent hearing, Defendant represented that he would not seek to introduce evidence on this unexplored topic.

Tellingly, Defendant did not seek an extension of the penalty phase expert disclosure deadline.

Defendant's claim that more expert testimony is needed is speculative and does not identify what new information would be uncovered by further investigation. This is fatal to Defendant's Motion.

See Rowe, 2014 WL 4244336 at * 2 (affirming denial of a continuance where it “ would not have served a useful purpose because counsel sought information based on mere speculation ”).

3. Defendant's Counsel's Investigation Into His Life Story Has Been More Than Adequate, and His Reliance on the ABA Guidelines Is Misplaced.

There is no authority to support Defendant's desire for more time to conduct “ a scorch-theearth " " life history ” investigation. See Mahaffey, 151 F.3d at 685. Courts recognize that all
STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE 9

cases including death penalty cases are constrained by limited time and resources. See Row, 955 P.2d at 1082; Dyer v. Calderon, 122 F.3d 720, 735 (9th Cir. 1997), vacated on other grounds 151 F.3d 970 (9th Cir. 1998) (en banc) (“ We have never held that counsel has a duty to uncover every aspect of a defendant's past and to present all evidence that might bolster a defendant's mitigation case. Rather, trial counsel's resources are limited and the strategic decision to emphasize certain aspects of a defendant's background at the expense of investigating others is both reasonable and wholly acceptable. ").

Faced with this authority, Defendant turns to strawman arguments and non-binding guidelines to conjure up alleged prejudice. First, he cites cases where death penalty sentences were overturned because lower courts failed to consider mitigation evidence. (Mot. 7-8.) But there is no danger of that here. Starting the trial instead of allowing Defendant to pursue a mitigation investigation with no end in sight does not amount to denying him the right to present a constitutionally adequate mitigation case. In any event, the current issue before the Court is a request for a continuance, not the admissibility of mitigation evidence or the performance of counsel. The Court's decision remains a matter of discretion. See Michaels v. Chappell, No.

04cv0122-JAH (JLB), 2014 WL 7047544, at * 21 (S.D. Cal. Dec. 12, 2014) (affirming trial court in a petition for habeas corpus because the defendant “ fail [ed] to demonstrate that the state court's rejection [of a continuance] was objectively unreasonable "); Holm v. Kirkegard, CV 16-100-M- DLC-JCL, 2019 WL 5061322, at * 2 (D. Mont. Oct. 9, 2019) (finding that “ the trial court's denial of a last-minute continuance did not violate [defendant's] rights "). The Court will be well within its discretion to bring this case to trial after two years and an already robust defense investigation.

See Dixon v. Ryan, 932 F.3d 789, 806 (9th Cir. 2019) (affirming the decision to deny a motion for
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a continue where the “ trial court cited the overall length of the case. the interests of the victims, and the mitigation investigation d