Court Filing
Electronically Filed 6/16/2025 3:30 PM Fourth Judicial District, Ada County Anne Taylor Law, PLLC Trent Tripple, Clerk of the Court Anne C. Taylor, Attorney at Law By: Jennifer Keyes, Deputy Clerk PO Box 2347 Coeur d'Alene, Idaho 83816 Phone: (208) 512-9611 iCourt Email: info@annetaylorlaw.com Elisa G. Massoth, PLLC Attorney at Law P.O. Box 1003 Payette, Idaho 83661 Phone: (208) 642-3797; Fax: (208)642-3799 Bicka Barlow Pro Hac Vice 2358 Market Street San Francisco, CA 94114 Phone: (415) 553-4110 Assigned Attorney: Anne C. Taylor, Attorney at Law, Bar Number: 5836 Elisa G. Massoth, Attorney at Law, Bar Number: 5647 Bicka Barlow, Attorney at Law, CA Bar Number: 178723 Jay W. Logsdon, First District Public Defender, Bar Number: 8759 IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA STATE OF IDAHO, Plaintiff, CASE NUMBER CR01-24-31665 V. DEFENDANT'S REPLY TO THE BRYAN C. KOHBERGER, STATE'S OPPOSITION ΤΟ DEFENDANT'S MOTION ΤΟ Defendant. CONTINUE COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby submits his reply to the State's Opposition to Defendant's Motion to Continue filed with the Court on June 5, 2025. The State's objection to Mr. Kohberger's motion invites reversible error. Prosecutors have an ethical and legal obligation to seek justice over convictions. See Berger v. United DEFENDANT'S REPLY TO THE STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE Page 1 States, 295 U.S. 78 (1935); Idaho Rules of Professional Conduct (IRPC) Rule 3.8, (Special Duties of a Prosecutor). When defense counsel requires a continuance to complete the constitutionally-required mitigation investigation, the State has no legitimate interest in objecting, for any conviction and / or death sentence obtained under such circumstances would rest on a constitutionally defective foundation. As such, courts reviewing death sentences have recognized that " [w] hen attorney error amounts to constitutionally ineffective assistance of counsel, that error is imputed to the State. Coleman v. Thompson, 501 U.S. 722, 754 (1991) (emphasis added). For when a State obtains a conviction against a defendant who was denied the effective assistance of counsel, ' it is the State that unconstitutionally deprives the defendant of his liberty. ' Cuyler v. Sullivan, 446 U.S. 335, 343, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). " Deck v. Steele, 249 F. Supp. 3d 991, 1081 (E.D. Mo. 2017) (rev'd on procedural grounds by Deck v. Jennings, 978 F.3d 578 (8th Cir. 2020)). 1. Compliance with the Court's Scheduling Order Does Not Fulfill Mr. Kohberger's Right to Effective Assistance of Counsel in a Capital Case. The State suggests that counsel's prior compliance with the Court's Scheduling Order somehow weighs against the present request for a continuance. But defense counsel's adherence to deadlines demonstrates diligence, not finality. Compliance was a good-faith effort to meet the Court's expectations, not a concession that the defense investigation is complete. The defense has now identified information and developments that make clear additional time is necessary to meet the minimum standards of effective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), and to fulfill the capital defense duties articulated in Wiggins v. Smith, 539 U.S. 510 (2003) and other Supreme Court cases. The fact that prior deadlines were met does not somehow negate the need for a continuance where the timeline is insufficient to complete the investigation and presentation of a constitutionally adequate penalty-phase defense. DEFENDANT'S REPLY TO THE STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE Page 2 Defense counsel has provided a detailed showing of good cause and necessity — including specific investigative avenues that case law explicitly establishes as constitutionally required in a capital case-through the ex parte pleading and an accompanying affidavit from the mitigation specialist. The purpose of the ex parte pleading was to provide the Court with this critical context, without revealing privileged work product and trial strategy to the prosecution. The Court is therefore apprised of the scope and necessity of the additional investigation, and the record does not support the State's assertion that all relevant ground has already been “ plowed. " 2. Mr. Kohberger's Case Has Been Pending for Less Than Two and One-Half Years; That Is a Short Duration Compared to Other Capital Cases. The State's suggestion that Defendant is seeking a “ perpetual continuance ” mischaracterizes the request. The defense is not seeking an indefinite delay; it is seeking a reasonable and necessary adjustment of the trial schedule to allow constitutionally required mitigation investigation to be completed. The absence of a proposed new trial date simply reflects that the next appropriate step would be for the Court to vacate the current trial date and then enter a revised scheduling order based on input from all parties, as is customary. It is both common and appropriate in capital cases for trial schedules to be revisited as new facts emerge or as the defense becomes aware that essential tasks cannot be completed in the time originally allotted. The defense identified specific areas of investigation that are outstanding and has submitted those to the Court ex parte for review. The precise amount of time needed will depend, in part, on the results of those ongoing efforts. The State's assertion that “ over two years ” should be presumed sufficient time ignores the law and the practical realities of capital litigation and the high-profile nature of this case. The Sixth Amendment right to effective assistance of counsel does not impose a rigid calendar requirement; it guarantees a meaningful opportunity for counsel to prepare and investigate under the facts and complexities of the individual case. Denying this continuance based solely on the DEFENDANT'S REPLY TO THE STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE Page 3 passage of time — without considering the specific barriers, scope of investigation, and recent developments — would be an abuse of discretion. However, even engaging with the State's flawed argument, two years and three months between indictment and trial is less time than in many run-of-the-mill capital cases that are not high profile. The Federal Death Penalty Resource Counsel tracks federal capital cases and published a resource in 2021 tracking the amount of time it took for cases brought to trial between 2010 and 2020 (prior to the pandemic, which slowed everything down). The average time between indictment and the beginning of trial was 1299 days, or 3.55 years. See Declaration of Ben Cohen Regarding Time Period Between Indictment and Trial in Federal Death Penalty Cases Between 2010-2020 (Attached as Exhibit A). And recent high-profile capital cases have taken longer to get to trial. For example, defendant Nikolas Cruz in Florida was pre-trial for more than 4 years. This is true even though he pled guilty, leaving the penalty decision of life without parole or death penalty as the sole issue to be decided. 3. This Capital Case is Extraordinary Both in Complexity and Media Attention. Mr. Kohberger's case is not an “ ordinary ” capital case. The defense has had to navigate extraordinary barriers including reluctant or traumatized lay witnesses, difficulty retaining qualified experts because it is a highly publicized and controversial case, ongoing prejudicial media coverage — including violations of court orders that have required legal and strategic attention and logistical delays in a complex mitigation investigation across multiple institutions and jurisdictions. Even though three and half years represents an average pretrial timeline in capital litigation, that average does not account for the added complexity, resistance, and logistical challenges inherent in this case. At the current trial setting, Mr. Kohberger's case will be less than two years and three months from indictment. Rushing this case to trial on the schedule that is both shorter than average capital cases and without flexibility to account for the added DEFENDANT'S REPLY TO THE STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE Page 4 complexity will compromise the fundamental rights guaranteed to Mr. Kohberger under the Sixth, Eighth, and Fourteenth Amendments and make any resulting conviction and / or death sentence vulnerable to reversal. 4. The Recent Dateline Episode and Media Leaks Are Uniquely Prejudicial and Distinct from Ordinary Media Coverage. The State's argument that the Dateline episode does not require a continuance, and that in fact " proceeding to trial as scheduled may actually avoid any negative consequences from future publicity, " completely misses the point. The defense is not asking for a continuance based on the ordinary publicity that attends high-profile criminal proceedings, such as coverage of court dates and public filings. This is something wholly different: a highly dramatized TV special, complete with ominous music and narrations, first-person testimonials, faux experts, and non-public information that was leaked in violation of the Court's non-dissemination order. It was a choregraphed narrative broadcast to millions of viewers and advertised to millions more. It aired nationally and was promoted heavily across commercial breaks, streaming platforms, and social media, maximizing its visibility and impact. It was designed to provoke strong emotional reactions, which is exactly the influence that taints jury pools and risks depriving Mr. Kohberger of a fair trial. Worse still, a book that claims to contain “ the most comprehensive narrative " of the " investigation and evidence to date " is set to be published on July 14, 2025.¹ It promises information based on interviews with local law enforcement. Its release will almost certainly trigger another wave of media coverage just two weeks before jury selection is set to begin, and if the publisher's claims are accurate, that coverage will likely include non-public information presented not under oath or subject to cross-examination but packaged in a narrative designed to provoke public interest and sell books. If the book contains new leaks, a further investigation 1 See James Patterson, " The Idaho Four: An American Tragedy, " https://www.amazon.com/Idaho-Four-American-Tragedy/dp/0316572853 DEFENDANT'S REPLY TO THE STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE Page 5 into the source of those disclosures will be necessary. The book is not the end of what is to come as the trial begins, as currently scheduled. Amazon Prime Video is releasing a docuseries on July 11, 2025 called One Night in Idaho: The College Murders. It is a four-part series. It promises to be told in an “ captivating, tense, and emotionally wrenching detail ” by people who are likely to be witnesses in trial. The families of Ethan Chapin and Madison Mogen are extensively interviewed for the series, according to press materials and the trailer. Further, James Patterson, author of the aforementioned book, is noted as one of the Directors and Producers of the Docuseries. These publications dispersed at the time trial begins will capture untold attention and will be media fodder, especially as witnesses in this capital trial take the stand. Thus, the appropriate remedy is to investigate the source (s) of the violations and impose accountability, not to force this case to trial in the shadow of tainted public discourse. Time will both allow this Court to reassert control over the fairness of the proceedings by imposing accountability, which will communicate the seriousness of the violation and the importance of a fair process and will allow the effects of this particularized and inflammatory coverage to subside. Because this is not an objection to the ordinary media coverage of this case, the prosecution's assertion that proceeding now will avoid further prejudice only holds true if one accepts that leaks and violations of court orders will continue. That is not a valid presumption on which to base denial of a continuance; it is a reason for investigation and enforcement. It would be patently unfair for the State's case to be bolstered through the prejudicial coverage that resulted from state actors violating the court's non-dissemination order, and then to use that unlawful conduct as a justification for rushing to trial both before the defense can learn where the leaks originated and before the defense is ready. DEFENDANT'S REPLY TO THE STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE Page 6 Additionally, thorough investigation into the leaks must occur prior to any trial, because it now constitutes a known source of Brady material. Interviews with Dateline producers by Idaho news outlets indicate that it was likely multiple sources who leaked sealed information to the media. If any of these unlawful leaks originated from witnesses the State intends to call or from others involved in the investigation, that information is relevant to impeaching their credibility. If the leaks were ongoing and collective, it would tend to show a willingness of investigators to violate court orders, bias against the defendant, or even collusion, which is not only relevant to credibility but may be exculpatory in nature. And if the investigation reveals that other State agents had information about the leaks but failed to disclose it, the omission itself would constitute a Brady violation requiring consideration of remedies. Of course, the identity, motives, and actions of those who violated the Court's order are key to the jury's determination of the facts, because this case hinges on whether the police investigation was conducted in a reliable manner or whether it zoomed in on the defendant at the expense of all other suspects. In short, the prejudice from the Dateline episode requires a continuance both because of the resulting prejudice that is separate and apart from ordinary media coverage, and because trial cannot go forward without a thorough investigation into which person (s) leaked case information and numerous sealed photographs and videos to the media. 5. The Current Jury Selection Process Does Not Allow Enough Time to Select a Fair and Impartial Jury Under the Circumstances. The State asserts that “ the Court's carefully crafted jury selection process has every chance to produce and impartial jury... ”. To the contrary, the Court has only scheduled two weeks for voir dire, which is wholly insufficient to conduct the necessary individual voir dire on the vast media coverage as well as death penalty views. Given the popularity of Dateline and the intense public interest in this case, it is not speculative to assume that a significant portion of the jury pool has been exposed to the recent show — either directly or through previews, headlines, or DEFENDANT'S REPLY TO THE STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE Page 7 word of mouth. Any discussion of the extremely prejudicial narrative outside of individual voir dire is likely to taint the entire group. It is not the defense's position that no fair jury can ever be empaneled in this case. Only that, under the current schedule and in light of this development, the safeguards in place are not sufficient to ensure that process. Relying on voir dire alone, particularly in such a compressed format, is not adequate to protect Mr. Kohberger's right to an impartial jury under the Sixth and Fourteenth Amendments. Mr. Kohberger must also be able to conduct expansive voir dire and not be limited to short time frames and large panels. Constitutionally appropriate voir dire in a capital case takes time. Mr. Kohberger must have the necessary time to determine a potential juror's ability to sit on this highly publicized capital case. 6. The ABA Guidelines Define the Prevailing Professional Norms for Effective Assistance and Are Statutorily Adopted in Idaho. The State argues that the Court need not consider the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases and cites as authority State v. Porter, 948 P.2d 127 (1997) and Hall v. State, 253 P.3d 716 (2011). First, the State mischaracterizes Hall v. State, which does not address the ABA Guidelines at all. The only time the ABA Guidelines are mentioned are in a parenthetical explaining State v. Porter. The Court's narrow holding in Hall, which is that Idaho law applies standard discovery practices in capital cases in a post-conviction posture, has no bearing on this case. The State's other cited case is State v. Porter, a 1997 case in which the Idaho Supreme Court declined to adopt the ABA Guidelines. This case predates later U.S. Supreme Court caselaw that specifically cites the ABA Guidelines as evidence that courts rely on when determining whether trial counsel's performance met the constitutional threshold. See, e.g., Wiggins v. Smith, 539 U.S. 510, 524 (2003). Thus, the fact that the Guidelines were not adopted as binding law in Porter does not diminish their authority as a reflection of the professional consensus about prevailing DEFENDANT'S REPLY TO THE STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE Page 8 professional norms. The holding isn't unusual; the Guidelines have not been adopted as binding law by any state supreme court. However, the Idaho Public Defender Statutes, adopted in 2023, requires the State Public Defender to implement the ABA Guidelines for defending attorneys delivering indigent defense. See I.C. 19-6005 (4). The Guidelines therefore have even more force in Idaho than elsewhere, though in any jurisdiction, they are the most authoritative source of counsel's professional duties in a capital case. Post-conviction courts will use them as a highly persuasive authority when evaluating whether counsel conducted an adequate mitigation investigation, whether appropriate experts were consulted, and whether the defense team performed consistent with capital defense norms. The State also relies on a quote from Cullen v. Pinholster that omits critical context— " Beyond the general requirement of reasonableness, specific guidelines are not appropriate. ” The next sentence states that this is because “ [n] o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions. ” 563 U.S. 170, 195 (2011). It goes on to re-assert counsel's duty to conduct reasonable investigations under the circumstances, and the importance of looking to standards of professional practice at the time of trial. Id. at 195-97. That the ABA Guidelines will not be read to constitute per se violations of the Sixth Amendment does nothing to advance the State's argument; it does not undermine the relevance of the ABA Guidelines in assessing prevailing professional norms and the reasonableness of counsel's investigation and performance. The State does not and cannot cite any authority holding otherwise. 7. A Continuance Is Necessary to Enforce Mr. Kohberger's State and Federal Constitutional Rights, and These Cannot be Overridden by the Victims ' Rights Provision. The State asserts that the Court should deny a continuance based on the victims ' constitutional right to a “ timely disposition " under Article 1, § 22 of the Idaho Constitution. But that provision does not and cannot override the defendant's fundamental constitutional rights, DEFENDANT'S REPLY TO THE STATE'S OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE Page 9 including the rights to a fair trial and the effective assistance of counsel under the Sixth and Fourteenth Amendments to the U.S. Constitution, and Article I, § 13 of the Idaho Constitution. Mr. Kohberger's fundamental constitutional right