Court Filing
Electronically Filed
8/12/2024 3:30 PM
Second Judicial District, Latah County Julie Fry, Clerk of the Court
By: Tamzen Reeves, Deputy Clerk
LATAH COUNTY PROSECUTOR'S OFFICE
WILLIAM W. THOMPSON, JR., ISB 2613
PROSECUTING ATTORNEY
INGRID BATEY, ISB 10022
SPECIAL ASSISTANT ATTORNEY GENERAL
Latah County Courthouse P.O. Box 8068 Moscow, ID 83843
Phone: (208) 883-2246 paservice@latahcountyid.gov
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAH
Case No. CR29-22-2805
STATE OF IDAHO,
Plaintiff, STATE'S OBJECTION TO DEFENDANT'S
MOTION TO CHANGE VENUE
V.
BRYAN C. KOHBERGER
Defendant.
COMES NOW the State of Idaho, by and through the Latah County Prosecuting Attorney, and objects to Defendant's Motion to Change Venue.
INTRODUCTION
Defendant has filed a motion to change venue, requesting that the trial in this matter be moved from Latah County — where the offenses took place — to Ada County, some 300 miles away.
To support his motion, he conducted a survey of prospective jurors in Latah County, Ada County, Canyon County, and Bannock County. But far from demonstrating that a Latah County jury pool has been uniquely subjected to an " utterly corrupted " environment, as Defendant argues in his
STATE'S OBJECTION TO DEFENDANT'S MOTION TO CHANGE VENUE 1
brief, the data show that pervasive and wide-ranging coverage of this case throughout the entire State of Idaho has led to high case recognition among survey respondents across all four surveyed counties. The Court should decline Defendant's invitation to parse and split hairs over an incomplete dataset to reverse-engineer a transfer to Ada County, which according to Defendant's own experts, has received the second-highest amount of media coverage in the state and where a statistically greater number (albeit slight) of the survey respondents familiar with the case believe Defendant is guilty. See Def. Ex. B, p. 4-5; Def. Ex. C.¹ The Court should deny Defendant's motion and instead, focus on crafting remedial measures to ensure that a fair and impartial jury can be seated in Latah County.
ARGUMENT
Although the government generally must prosecute an offense in the county where it occurred, a court may change venue in two limited circumstances. I.C.R. 19; I.C.R.. 21; I.C. § 19-
1801. First, a Court must change venue to another county “ if the court is satisfied that a fair and impartial trial cannot be had in the county where the case is pending. ” I.C.R. 21 (a); see also the similar language in I.C. 19-1801.
Second, a Court may — but is not required to change venue for the convenience of the parties and in the interest of justice. I.C.R. 21 (b). In this case, Defendant has asked the Court to 1 The Truescope Media report does not show the entire picture, however. Def. Ex. C. In the “ Definitions " section of the Truescope report, it is explained that the report does not take into account data from YouTube, private Facebook groups, podcasts, streaming services (such as Netflix, HBO, Paramount +, or Hulu). Id. In fact, the report does not take into account “ data that is not location-specific ” at all. Id. Given the ubiquity of blogs, podcasts, documentaries, and other internet or streaming media, it is difficult to gauge how including that data may have changed the Truescope report. Additionally, as the Court is aware, this type of media (i.e., video bloggers on YouTube, true crime podcasts, true crime “ documentaries, ” and Tik Tok videos) is often the most inflammatory and prejudicial because it lacks the professional standards and safeguards of traditional media outlets (newspapers and television news).
STATE'S OBJECTION TO DEFENDANT'S MOTION TO CHANGE VENUE 2
change venue on both bases. For the following reasons, the Defendant has failed to show that either of these circumstances applies.
I. Defendant has failed to establish that a fair and impartial trial cannot be held in Latah County.
Defendant has argued that due to pervasive publicity in this case, a change of venue is appropriate. Defendant further claims that the atmosphere in Latah County has been “ utterly corrupted " by media coverage. Def. ' s Mem. in Support of Motion to Change Venue, p. 5.
It is undisputed that Defendant has a constitutional right to a fair trial with a fair jury-a panel of " impartial, indifferent jurors. " State v. Abdullah, 158 Idaho 386, 421, 348 P.3d 1, 36 (2014). On a change of venue motion, it is Defendant's burden to show a reasonable likelihood that pretrial publicity will deprive him of a fair trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct.
1507 (1966); State v. Hall, 111 Idaho 827 (1986). However, where pretrial publicity is at issue, a " presumption of prejudice ” necessitating a change of venue applies only in the most “ extreme ” of cases. State v. Hadden, 152 Idaho 371, 379 (Ct. App. 2012) (citing Skilling v. United States, 561 U.S. 358, 379, 130 S.Ct. 2896, 2915 (2010)). “ The mere fact that the crimes reported by the media are gruesome or memorable does not render the publicity inflammatory to the extent of requiring a change of venue. ” Hadden at 385. The United States Supreme Court has also explained that " juror impartiality does not require ignorance. ” Skilling at 381, 130 S.Ct. at 2915.
In determining whether pretrial publicity has risen to a level that justifies a change of venue, Idaho's appellate courts look to a series of factors:
the accuracy of the pretrial publicity; the extent to which the articles are inflammatory, inaccurate or beyond the scope of admissible evidence; the number of articles; whether the jurors were so incessantly exposed to such articles that they had subtly become conditioned to accept a particular version of the facts at trial;
and the amount of time that passed between the coverage and the trial.
STATE'S OBJECTION TO DEFENDANT'S MOTION TO CHANGE VENUE 3
Hadden at 377 (citing State v. Sheahan, 139 Idaho 267, 278 (2003); Hall, 111 Idaho 827, 829–30 (1986)).
The United States Supreme Court has held that only in the most extreme cases is a defendant afforded a presumption of prejudice based on pretrial publicity. See, e.g., Rideau v.
Louisiana, 373 U.S. 723, 83 S.Ct. 1417 (1963) (in a bank robbery homicide, defendant afforded a presumption of prejudice where his videotaped confession during a police interrogation was aired on local news three times and seen by thousands); and State v. Estes, 381 U.S. 532, 551, 85 S.Ct.
1628, 1637 (1965) (during court hearing proceedings, judge allowed unmitigated camera access to the courtroom, including the filming of juror's faces). Neither Rideau nor Estes apply here.
Defendant in this case did not confess to the murders, let alone on video broadcast to thousands;
and it is the State's understanding that the Court will not allow the filming of jurors ' faces at trial in this case.
Defendant urges this Court to find that Sheppard v. Maxwell, another U.S. Supreme Court case, applies here. Def. ' s Mem. in Support of Motion to Change Venue, p. 8 (citing Sheppard v.
Maxwell, 384 U.S. 333, 86 S.Ct. 1507 (1966)). But Sheppard is wholly inapplicable to this case.
In Sheppard, “ bedlam reigned at the Courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants at trial....within a few feet from the jury box and counsel table sat some 20 reporters staring at Sheppard and taking notes. ” Id. at 335, 86 S.Ct. 1507. The Sheppard Court went on to explain the extreme nature of the media participation at trial:
The erection of a press table for reporters inside the bar is unprecedented. The bar of the court is reserved for counsel, providing them a safe place in which to keep papers and exhibits and to confer privately with client and co-counsel. It is designed to protect the witness and the jury from any distractions, intrusions or influences, and to permit bench discussions of the judge's rulings away from the hearing of the
STATE'S OBJECTION TO DEFENDANT'S MOTION TO CHANGE VENUE 4
public and the jury. Having assigned almost all of the available seats in the courtroom to the news media, the judge lost his ability to supervise that environment. The movement of the reporters in and out of the courtroom caused frequent confusion and disruption of the trial. And the record reveals constant commotion within the bar. Moreover, the judge gave the throng of newsmen gathered in the corridors of the courthouse absolute free reign. Participants in the trial, including the jury, were forced to run a gantlet of reporters and photographers each time they entered or left the courthouse. The total lack of consideration for the privacy of the jury was demonstrated by the assignment to a broadcasting station of space next to the jury room on the floor above the courtroom, as well as the fact that jurors were allowed to make telephone calls during their five-day deliberation.
Id. This case has nowhere near the chaos present in Sheppard. As the Sheppard Court explained, " the carnival atmosphere at trial could easily have been avoided, since the courtroom and courthouse premises are subject to the control of the court. ” Id. at 358, 384 U.S. at 1520. Here, the Court has scrupulously avoided such an environment. The Court entered a non-dissemination order early in the case. When the small press pool that was allowed in the courtroom failed to follow the Court's instructions as to filming or photographing the Defendant, the Court disallowed any media filming, photographing, or audio recording of court proceedings. This Court has repeatedly taken precautions to avoid the circus-like environment described in Sheppard and thus, Sheppard is easily distinguishable and a poor comparison to this matter.
As the caselaw makes clear, the test is not knowledge of the case, but rather, partiality. See, e.g., Hadden, and see State v. Hairston, 133 Idaho 496, 506, 988 P.3d 1170, 1180 (Idaho 1999).
Thus, the fact that Latah County survey respondents had the highest percentage of knowledge about the case compared to other counties is far less significant than the fact that Latah County survey respondents had the least amount of overall prejudgment among the counties. Def. Ex. B., App. B.
STATE'S OBJECTION TO DEFENDANT'S MOTION TO CHANGE VENUE 5
A. The survey data provided by Dr. Edelman is inadequate to justify a change of venue i. It is not reported how many individuals declined to take the survey, raising serious concerns about non-response bias.
A glaring omission in the data provided by Dr. Edelman is the lack of any information about the number of individuals who were contacted but chose not to respond to the survey. This is important because non-participation bias can change the outcome of such a survey. See, e.g., Scott Keeter et al., “ What Low Response Rates Mean for Telephone Surveys, ” Pew Research Center, available at https://www.pewresearch.org/methods/2017/05/15/what-low-response-ratesmean-for-telephone-surveys /.2 As of the authoring of the 2017 article promulgated by the Pew Research Center, telephone poll response rates stabilized at approximately nine percent after years of decline. Id. While the Pew Research Center article concludes that low response rate does not necessarily lead to a conclusion of bias across all subject matters, low response rate can skew results in specific areas.
Id. For example, individuals with high civic involvement are overrepresented in surveys. Id. As the Pew article explains, “ [t] elephone polls greatly overstate civic engagement, probably because of non-response bias. As has been established in previous work, the people who answer surveys are likely to be the same people that are involved in their community's public life – they are joiners. " Id. Such a phenomenon could easily play a role here, where at the very outset of the survey, respondents were told that they were being asked for “ opinions about an upcoming jury trial. ” Def. Ex. B, App. B.
2 Defendant's expert, Dr. Veronica Dahir, also writes that high non-response rates can affect the representativeness of a given survey. Def. Ex. F., p. 5. Dr. Dahir writes that non-response rates are becoming less important due to various mitigation strategies such as opportunities to follow up, incentives, and interview trainings. Id. However, while these mitigation strategies might apply to individuals who would not participate in any survey at all, they do not account for those individuals who may have declined to participate in the survey in this case due to the specific subject matter of the survey.
STATE'S OBJECTION TO DEFENDANT'S MOTION TO CHANGE VENUE 6
This Court must ask itself: would an individual who was asked for their opinion about an upcoming jury trial continue a survey if they had no opinions about any upcoming jury trials? And once the survey started, would a prudent, thoughtful, and conscientious person who is reluctant to pass judgment with limited information opine to a stranger whether they believe a criminally accused is guilty of murder?
The Court should also consider the fact that, while the survey respondents were told that the poll was not political or sales-related, these survey respondents were never told why they were being asked questions. Def. Ex. B., App. B. They had no way of knowing whether the poll was being done on behalf of the news media, or a true crime blogger, or for some other purpose. Id.
While they were told their responses would not be made public, they were never told whether they were being recorded. Id. One only has to exercise common sense to see that there are innumerable reasons why prudent, thoughtful, deliberative, and conscientious individuals might hesitate to complete such a survey.
Defendant's flawed hypothesis is that if 98% of a self-selecting group who voluntarily chose to share opinions about an upcoming jury trial have heard about this particular upcoming jury trial, then 98% of all citizens who are summoned for jury duty will have also heard about it.
The Court should reject this illogical leap of faith and embrace a more practical inference: it is more likely that a voluntary survey that begins by asking individuals to opine about an upcoming jury trial will overrepresent individuals with knowledge about an upcoming jury trial.
ii. This Court does not have complete survey data and therefore cannot adequately compare data among the four surveyed counties.
As Defendant acknowledges, this high-profile quadruple homicide case has “ captured the attention of the community, the State, the Country and even beyond the United States. ” See Def.
STATE'S OBJECTION TO DEFENDANT'S MOTION TO CHANGE VENUE 7
Motion to Change Venue, p. 5. Given the amount of attention that this case has received across the entire state, there are two critical questions on Defendant's motion to change venue. The first question is whether a fair and impartial jury can be convened in Latah County. And if not, the second question is whether an alternative county would better safeguard Defendant's right to a fair and impartial jury. After all, why would the Court change venue to another county that has nearly the same media saturation as Latah County? Yet the State and the Court were not provided a comprehensive list of survey responses across all four of the counties surveyed. In fact, Dr.
Edelman's report focused primarily on Ada County as an alternative venue despite the fact that Canyon County and Bannock County, the other two counties surveyed, both received astronomically less media coverage than Latah County or Ada County. See generally Def. Ex. C;
and see Def. Ex. B, p. 5-6, p. 50-51.
An example of the incomplete data provided from Canyon and Bannock counties is found on pages 50-51 of Dr. Edelman's declaration, where he reports that in Canyon County, " [a] pproximately 90% of the jury eligible population there had read, seen or heard about the case and 51% followed the case ‘ somewhat ' or ' very ' closely, " and that in Bannock County, " [a] pproximately 84% of. survey respondents recognized the case, some 14 percentage points lower than in Latah County... [j] ust 45% of survey respondents followed the case ‘ somewhat ' or ' very ' closely. ” Def. Ex. B., p. 50. However, when Edelman discusses the Ada County survey respondents, he reports that while Ada County had a “ 93% recognition rate there were important differences between the Latah and Ada County jury pools. Ada County residents are far less invested in the case. Only 15% reported that they followed the case “ very ” closely, compared
STATE'S OBJECTION TO DEFENDANT'S MOTION TO CHANGE VENUE 8
to 29% percent of Latah County residents. " Id. at 50-51.3 It is unclear why the Court was provided the statistical number of survey respondents who followed the case “ very closely ” in Ada County, yet in Canyon and Bannock County, the “ somewhat ” and “ very ” categories were collapsed, creating a larger percentage. This piece of context is especially concerning given that Defendant is advocating specifically for a venue change to Ada County, despite the fact that Ada County has a slightly higher prejudgment rate than Latah County, and a higher percentage of case recognition (93%) than either of the two alternative counties (Canyon at 90% and Bannock at 84%). Def. Ex.
В., р. 4-5.
Additionally, Dr. Edelman discusses the phenomenon of “ minimization effect, ” which is when a prospective juror attempts “ to minimize the full extent of their exposure to pretrial publicity. " Def. Ex. B, p. 54. However, his discussion about the impact of this phenomenon on the actual survey respondents in this case was limited solely to Latah County. Id. at p. 54-60. Similarly, as discussed in more detail below, nowhere in the survey report is there mention of answers provided by Canyon County or Bannock County survey respondents about the two most potentially prejudicial and inflammatory pieces of media information addressed by the survey: rumors that Defendant had stalked one of the victims or followed them on social media. Def. Ex. Β.
In an environment where the Court has limited data and where Defendant is asking the Court to move venue to a county with a slightly higher prejudgment rate among survey respondents with knowledge of the case, these types of omissions make it impossible for the Court to make an informed determination whether to move venue at all, much less to move it specifically to Ada County.
3 Put another way, less than a third of Latah County survey respondents reported following the case " very closely. "
STATE'S OBJECTION TO DEFENDANT'S MOTION TO CHANGE VENUE 9
iii. The majority of the survey focused on prospective jurors ' knowledge of information already within the court record and admissible at trial Defendant argues in his brief that this matter is an extreme case justifying a change of venue due to “ [t] he continuous nature of media coverage, often inaccurate and misleading, the impact of the media coverage, and the small size of the community, ” Def. ' s Mem. in Support of Motion to Change Venue, p. 5. But as Idaho's appellate courts have repeatedly held, facts are prejudicial when they are beyond the scope of admissible evidence or inaccurate. See Hadden, 152 Idaho at 377; see also Sheahan, 139 Idaho at 278 (“ when reviewing the nature and content of the pretrial publicity, this Court is concerned with the accuracy of the pretrial publicity, the number of articles, and whether the articles will condition the jurors to accept a particular version of the facts at trial ”); and see Hall, 139 Idaho at 829 (" [q] ualitatively, the courts must be concerned with news stories and editorials that are inflammatory, inaccurate or beyond the scope of admissible evidence. "). 4 During the course of Dr. Edelman's survey, respondents were asked whether they had read, seen, or heard about a series of factual information items