Defendants Motion to Continue

Electronically Filed
5/20/2025 9:39 AM

Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court Anne Taylor Law, PLLC By: Jennifer Keyes, Deputy Clerk Anne C. Taylor, Attorney at Law 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.

BRYAN C. KOHBERGER, MOTION TO CONTINUE

Defendant.

COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby respectfully submits the following Motion to Continue due to the substantial amount of trial investigation and preparation still outstanding, as well as recent and forthcoming publicity that is highly prejudicial to the defense. Any conviction and sentence resulting from a capital trial MOTION TO CONTINUE Page 1

beginning in August 2025 will be unconstitutionally imposed and, therefore, vulnerable to reversal on direct or collateral review. In making this Motion, Mr. Kohberger relies on his right to be free from cruel and unusual punishment, his right to due process, his right to a fair trial, his right to counsel, his right to present a defense, his right to confront witnesses, his right to a fair and reliable sentencing determination, and other rights safeguarded by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 6, 7, 8, and 13 of the Idaho State Constitution.

TABLE OF CONTENTS

I. This Court Has an Obligation to Uphold Mr. Kohberger's Constitutional Rights by Vacating the Trial Date because Defense Counsel Needs Additional Time to Review Discovery and Prepare for the Complex Merits and Sentencing Phases Unique to Death Penalty Cases. 3 II. Mr. Kohberger Has Myriad Constitutional Rights during These Proceedings, All of Which Are Dependent on Counsel Having the Time and Resources to Prepare for a Capital Trial in Accordance with Established Professional Norms. 4 A. In Capital Cases, the Rights to Effective Assistance of Counsel and a Complete Defense Are Amplified. 4 B. Mr. Kohberger Is also Entitled to an Individualized Sentencing Determination, a Constitutional Right that Is Uniquely Reserved for Defendants Facing the Death Penalty. 7 C. The Right to Qualified Expert Assistance as Part of the Guarantees to Effective Assistance of Counsel and an Individualized Sentencing Proceeding.. 9 III. Counsel's Professional and Ethical Obligations in a Capital Case. 10 A. Counsel's Duty to Provide Effective Assistance of Counsel in Accordance with the Prevailing Professional Norms. 10 B. The Minimum Requirements Counsel Must Meet in Investigating for the Merits Phase of a Capital Case. 11 C. Counsel Must Conduct an Exhaustive, Unparalleled Life History Investigation, Analyze Hundreds of Documents and Interviews, and Compile All of this Information into a Cohesive Narrative for the Sentencing Phase. 12
1. What a Constitutionally Adequate Investigation Entails. 12
2. A Full Investigation Is Likely to Lead to Discovery of Numerous Mitigating Factors that Would Not Be Readily Apparent from a Cursory Investigation...... 17
3. Mere Identification of Mitigating Information Is Not the Conclusion of the Investigation. 20 MOTION TO CONTINUE Page 2

D. The Alleged Aggravating Circumstances of this Crime Heighten Counsel's Obligation to Conduct a Full and Complete Investigation and Prepare a Presentation that can Withstand Adversarial Testing. 22 E. Counsel Cannot Identify All Necessary Experts Without Completing the Comprehensive Life History Investigation. 24 IV. Counsel Requires Additional Time to Fulfill the Minimum Requirements Described Above. 28 A. Counsel Cannot Review All of the Relevant Discovery and Complete the Necessary Investigations Prior to Trial. 28 B. The Life History Investigation is Ongoing and Requires Additional Time and Expert Assistance. 31 V. A Continuance is Necessary to Remedy the Prejudice of Highly Inflammatory Publicity Released Just Weeks Before the Current Trial Date, Including the Recent Dateline Special and a Forthcoming Book. 32 VI. Reversal is More Likely Than Not in Any Case Resulting in a Death Sentence.. 36 VII.A Continuance is Reasonable and Necessary under the Circumstances.

39
ARGUMENT

I. This Court Has an Obligation to Uphold Mr. Kohberger's Constitutional Rights by Vacating the Trial Date because Defense Counsel Needs Additional Time to Review Discovery and Prepare for the Complex Merits and Sentencing Phases Unique to Death Penalty Cases.

This Court has an “ obligation to ‘ enforce the constitutional rights of all ‘ persons, ' including prisoners. ” Brown v. Plata, 563 U.S. 491, 511 (2011); see also Robb v. Connolly, 111 U.S. 624, 637 (1884) (“ Upon the State courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the Constitution of the United States and the laws made in pursuance thereof.... ”).

As detailed in this Motion, moving forward with a capital trial in August will infringe upon Mr. Kohberger's constitutional rights, as counsel requires more time to review discovery, complete investigations, and prepare for trial. When considering this request for a continuance, the Court must weigh the issues against the heightened need for reliability in death penalty cases. See Woodson v. North Carolina, 428 U.S. 280, 305 (1976). This elevated standard is essential because MOTION TO CONTINUE Page 3

execution is the most irreversible and profound penalty; indeed, “ death is different. ” Ford v.

Wainwright, 477 U.S. 399, 411 (1986) (emphasis added).

When the State seeks the death penalty, it imposes an extraordinary burden upon the Court, itself, and defense counsel to ensure the fairness, accuracy, and reliability of the trial and any subsequent sentencing proceeding. With a defendant's life stake, the trial court must be " particularly sensitive to insure that every safeguard is observed, ” Gregg v. Georgia, 428 U.S. 153, 187 (1976), and must take “ extraordinary measures ” to ensure that a death sentence is reliably imposed, rather than “ imposed out of whim, passion, prejudice, or mistake, ” Eddings v. Oklahoma, 455 U.S. 104, 118 (1982) (O'Connor, J., concurring).

Justice O'Connor's concurrence in Thompson v. Oklahoma, 487 U.S. 815 (1988), reinforces the idea that trial courts must apply heightened scrutiny to decisions potentially leading to a death sentence. 487 U.S. 815, 856 (1988) (“ Among the most important and consistent themes in this Court's death penalty jurisprudence is the need for special care and deliberation in decisions that may lead to the imposition of [the death penalty] "). The Idaho Supreme Court, too, has emphasized the special safeguards and stringent due process protections that must be afforded in capital cases. See, e.g., State V. Creech, 105 Idaho 362, 383 (1983) (“ The ' qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed. ") (emphasis in original) (citing Lockett v. Ohio,
438 U.S. 586, 604 (1978)).

Because proceeding to a capital trial prematurely is a decision that may lead to the erroneous imposition of the ultimate sanction, this Court must consider and assess this Motion under a heightened standard of due process.

II. Mr. Kohberger Has Myriad Constitutional Rights during These Proceedings, All of Which Are Dependent on Counsel Having the Time and Resources to Prepare for a Capital Trial in Accordance with Established Professional Norms.

A. In Capital Cases, the Rights to Effective Assistance of Counsel and a Complete Defense Are Amplified.

MOTION TO CONTINUE Page 4

The Sixth Amendment entitles Mr. Kohberger to the effective assistance of counsel at both the merits and penalty phases of this capital case. See, e.g., Andrus v. Texas, 590 U.S. (June 15, 2020) (per curiam); Strickland v. Washington, 466 U.S. 668, 686 (1984). Additionally, and concomitantly, as part of this Sixth Amendment guarantee, as well as his right to Due Process as protected by the Fourteenth Amendment, Mr. Kohberger is entitled to a sufficient amount of time to allow counsel to adequately prepare for trial and sentencing. See Powell v. Alabama, 287 U.S.

45, 59 (1932) (“ [A] defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense "); United States v. Ash, 413 U.S. 300, 340-41 (1973) (“ Powell made clear that, in order to preserve the accused's right to a fair trial and to ' effective and substantial ' assistance of counsel at the trial, the Sixth Amendment guarantee necessarily encompasses a reasonable period of time before trial during which counsel might prepare the defense. ”). The Supreme Court has recognized that “ depriv [ing] a person of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself. ” Maine v. Moulton, 474 U.S. 159, 170 (1985).

In a capital case, counsel must meet specific professional obligations to be constitutionally effective. The ABA Guidelines outline the professional expectations and obligations for counsel in death penalty cases. These Guidelines are not merely aspirational; they represent the current consensus on what is necessary for effective representation in capital cases. The Supreme Court has consistently referred to the ABA Guidelines to determine the prevailing professional norms for counsel's performance. For example, in Wiggins v. Smith, 539 U.S. 510, 524 (2003), the Court explained that the ABA Guidelines for capital defense serve as “ guides to determining what is reasonable ” and represent “ well-defined norms. ” Similarly, in Rompilla v. Beard, 545 U.S. 374, 387 (2005), the Court emphasized that it is the lawyer's duty to conduct a thorough investigation of the case's circumstances and explore all avenues leading to facts relevant to the case's merits and the penalty if convicted, citing the ABA Standards for Criminal Justice 4-4.1 (2nd ed. 1982).

MOTION TO CONTINUE Page 5

The Ninth Circuit, which would review any death sentence arising out of Idaho state courts, has also repeatedly relied on the ABA Guidelines and expressly recognized the Guidelines as a “ proper measure of the adequacy of an attorney's investigation. ” Andrews v. Davis, 944 F.3d 1092, 1109 (9th Cir. 2019) (“ American Bar Association (ABA) standards and the like are evidence of those norms and guides to determining what is reasonable ") (internal quotations omitted). The Ninth Circuit is not an anomaly; more than 700 capital case opinions cite the ABA Guidelines. See American Bar Association, Death Penalty Representation Project, List of Opinions Citing the ABA Guidelines for Capital Defense.¹ In addition to the effective assistance of counsel, Mr. Kohberger has the right to a " meaningful opportunity to present a complete defense. ” Holmes v. South Carolina, 547 U.S. 319, 324 (2006); see also Crane v. Kentucky, 476 U.S. 683, 687 (1986) (noting the existence of a " fundamental constitutional right to a fair opportunity to present a defense "); California v.

Trombetta, 467 U.S. 479, 485 (1984) (“ Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness.

We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. ”). This right has a number of sources, including the Due Process Clause of the Fourteenth Amendment, as well as the Compulsory Process and Confrontation Clauses of the Sixth Amendment. Holmes, 547 U.S. at 324.

This right takes on special significance in capital cases; the right to present a meaningful defense must take precedent over any countervailing state evidentiary rules or other procedures that might be acceptable in the context of non-capital criminal cases. See, e.g., Holmes, 547 U.S.

at 330 (finding that South Carolina state rule, which had been in place for more than 60 years, unconstitutionally infringed upon capital defendant's right to present a complete defense); Caspari 1 Available at https://www.americanbar.org/content/dam/aba/administrative/death_penalty_representation/allcit es.pdf (last visited April 22, 2025).

MOTION TO CONTINUE Page 6

v. Bolden, 510 U.S. 383, 393 (1994) (“ [T] ime and again the [Supreme] Court has condemned procedures in capital cases that might be completely acceptable in an ordinary case. ”).

B. Mr. Kohberger Is also Entitled to an Individualized Sentencing Determination, a Constitutional Right that Is Uniquely Reserved for Defendants Facing the Death Penalty.

Because the prosecution is seeking to execute him, Mr. Kohberger also has additional constitutional rights in this proceeding. The Eighth Amendment requires that a capital sentencing proceeding permit individualized consideration of the defendant and the circumstances of the offense. Woodson, 428 U.S. at 304 (holding that consideration of the character of the defendant is “ a constitutionally indispensable part of the process of inflicting the penalty of death ”); Roberts v.

Louisiana, 428 U.S. 325, 332-36 (1976) (holding that the state's mandatory death sentencing statute was unconstitutional because it did not permit the sentencer to make individualized determinations or assess degrees of culpability); Parker v. Dugger, 498 U.S. 308, 321-23 (1991) (holding that petitioner was deprived of his Due Process and Eighth Amendment rights to individualized sentencing where the appellate court failed to consider all mitigating evidence). As the Supreme Court noted in Enmund v. Florida, 458 U.S. 782 (1982), “ we insist on ‘ individualized consideration as a constitutional requirement in imposing the death sentence, ' which means that we must focus on ' relevant facets of the character and record of the individual offender. " Id. at 798 (citations omitted).

The U.S. Supreme Court has repeatedly emphasized that, in a capital case, a jury must be given the opportunity to consider all evidence that may weigh against a death sentence for any particular offender. This evidence includes anything at all from the defendant's life history and cannot be limited. See, e.g., Lockett, 438 U.S. at 604-09 (explaining that a sentencer may not be precluded from considering, as a mitigating factor, any aspect of the defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death); Bell v. Ohio, 438 U.S. 637 (1978) (reversing death sentence because MOTION TO CONTINUE Page 7

statute precluded consideration of facts and circumstances proffered as mitigating circumstances);
Green v. Georgia, 442 U.S. 95 (1979) (finding unconstitutional the exclusion of evidence at sentencing phase based upon Georgia's hearsay rule); Eddings v. Oklahoma, 455 U.S. 104 (1982) (finding that it was constitutional error for sentencing court to conclude that it could not consider the defendant's turbulent family history as a mitigating factor in deciding punishment); Skipper v.

South Carolina, 476 U.S. 1 (1986) (holding that it was unconstitutional violation of Lockett for trial court to exclude evidence that defendant had adjusted well to incarceration between arrest and trial); Penry v. Lynaugh, 492 U.S. 302 (1989) (vacating death sentence because trial court's instructions to the jury did not allow jury to consider as a mitigating factor evidence of the defendant's mental retardation and childhood abuse); Penry v. Johnson, 532 U.S. 782 (2001) (finding that Texas ' three-question sentencing format, in light of jury instructions and all circumstances of case, did not adequately allow the jury to consider mitigating evidence of mental retardation); Tennard v. Dretke, 542 U.S. 274, 287 (2004) (“ Relevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value. Thus, a State cannot bar the consideration of...

evidence if the sentencer could reasonably find that it warrants a sentence less than death. ") (internal citations and quotations omitted).

When a jury is denied relevant mitigating evidence, either because counsel independently fails to conduct a complete investigation or because the court denies defense counsel adequate time or resources to conduct such an investigation, the defendant's rights under the Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution, as well as the corollary guarantees in the Idaho Constitution, are violated, and any resulting death sentence cannot stand. Thus, individualized sentencing requires the presentation of mitigation evidence that is properly investigated, documented, and presented with the help of appropriate experts. As detailed further below, this MOTION TO CONTINUE Page 8

process is a comprehensive, time-consuming, and expensive undertaking, but it is also what our Constitution demands when the government seeks to extinguish human life.

C. The Right to Qualified Expert Assistance as Part of the Guarantees to Effective Assistance of Counsel and an Individualized Sentencing Proceeding.

In line with the heightened protections afforded to capital defendants, and stemming from both the rights to “ a meaningful opportunity to present a complete defense, ” Holmes, 547 U.S. at 324, and to due process, Ake v. Oklahoma, 470 U.S. 68, 70 (1985), capital defendants are entitled to necessary expert assistance. Indeed, expert assistance is needed in all homicide cases, given that “ investigating a homicide is uniquely complex and often involves evidence of many different types. Analyzing and interpreting such evidence is impossible without consulting experts— whether pathologists, serologists, microanalysts, DNA analysts, ballistics specialists, translators, or others. " ABA Guidelines, 31 HOFSTRA L. REV. at 955. However, in a case where the prosecution elects to seek the death penalty, the right to access competent expert assistance is particularly important, given that “ the prosecution and the defense rely more extensively on experts in death penalty cases than in [other types of] criminal cases. ” Subcom. On Federal Death Penalty Cases, Comm. On Defender Services, Judicial Conference of the United States, Federal Death Penalty
Cases: Recommendations Concerning the Cost and Quality of Defense Representation (1998), pp.

21-22.2 Because prosecutors rely extensively on experts in death penalty cases, capital defendants cannot “ present their claims fairly within the adversary system ” if they have not also obtained competent expert assistance. See Woodson, 428 U.S. at 77 (quoting Ross v. Moffitt, 417 U.S. 600, 612 (1974)).

Beyond the frequently complex merits-phase issues, conducting an adequate investigation into sentencing-phase issues in a capital case almost always requires the assistance of multiple experts. See McWilliams v. Dunn, 137 S.Ct. 1790, 1793-94 (2017) (explaining that, when a capital 2 Available at: https://www.uscourts.gov/sites/default/files/original_spencer_report.pdf MOTION TO CONTINUE Page 9

defendant's “ mental condition ” is “ seriously in question ” and is relevant to “ the punishment he might suffer [,] " a state must provide a mental health professional capable of conducting an appropriate e