Court Filing
Electronically Filed 8/19/2024 4:53 PM Second Judicial District, Latah County Julie Fry, Clerk of the Court Anne Taylor Law, PLLC By: Tamzen Reeves, Deputy Clerk Anne C. Taylor, Attorney at Law Bar Number: 5836 PO Box 2347 Coeur d'Alene, Idaho 83816 Phone: (208) 512-9611 iCourt Email: info@annetaylorlaw.com Jay W. Logsdon, Interim Public Defender Kootenai County Public Defender's Office PO Box 9000 Coeur d'Alene, Idaho 83816 Phone: (208)446-1700 Elisa G. Massoth, PLLC Attorney at Law P.O. Box 1003 Payette, Idaho 83661 Phone: (208) 642-3797; Fax: (208)642-3799 Assigned Attorney: Anne C. Taylor, Public Defender, Bar Number: 5836 Jay W. Logsdon, Chief Deputy Public Defender, Bar Number: 8759 Elisa G. Massoth, Attorney at Law, Bar Number: 5647 IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAН STATE OF IDAHO CASE NUMBER CR29-22-2805 Plaintiff, REPLY TO STATE'S OBJECTION ΤΟ V. DEFENDANT'S MOTION FOR CHANGE OF VENUE BRYAN C. KOHBERGER, Defendant. COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, hereby submits this Reply to the State's Objection to his Motion for Change of Venue. The pressure to convict Bryan Kohberger is so severe that Latah County survey respondents said if he wasn't convicted: REPLY TO STATE'S OBJECTION ΤΟ DEFENDANT'S MOTION FOR CHANGE OF VENUE Page 1 " They'd burn the courthouse down. Outrage would be a mild description. " " They would probably find him and kill him. " " There would likely be a riot and he wouldn't last long outside because someone would do the good ole ' boy justice. " " Enraged strong opinions. Firing of officers. " “ Riots, parents would take care of him. " The mob mentality within the community is the exact reason that statutory grounds, prior to selecting the jury, exist to move venue¹. Given these responses from potential jurors in Moscow and the State's acknowledgment that a remedy is needed for a jury to be selected, the state recognizes the obvious: an enormous venue problem exists. The State brings forth no experts to counter Mr. Kohberger's who are all clear, venue must be changed in this case. The State does, however, acknowledge that Bryan Kohberger has a Constitutional right to a fair trial with an impartial jury. Mr. Kohberger's Motion to Change Venue is supported with a memorandum, expert affidavits, declarations and exhibits that preview the testimonial evidence the Court will hear on August 29, 2024. A rebuttal declaration of Dr. Dahir is submitted with this reply. On June 28, 2024, the Idaho Supreme Court pointed out that a change of venue “ is not an unreasonably high hurdle for a defendant to clear, but it does require proof of prejudice or a showing of a " reasonable likelihood " of prejudice. The court is also: 1 Moore v. Dempsey, 261 U.S. 86 (1923).. At a minimum the defendant has a right to be free from physical violence or threat thereof. See, e.g., People v. Arthur, 314 Ill. 296, 145 N.E. 413 (1924); State v. Dryman, 269 P.2d 796 (Mont. 1954); State v. BeBee, 110 Utah 484, 175 P.2d 478 (1946) (by implication); Blevins v. State, 108 Ga. App. 738, 134 S.E.2d 496 (1963), rev'd on other grounds, 220 Ga. 720, 141 S.E.2d 426 ' (1965). Some cases indicate that the defendant's right to present his case in a calm and dignified atmosphere, without interference, is the right being protected. See, e.g., Yancey v. State, 98 Ga. App. 797, 107 S.E.2d 265 (1959); State v. BeBee, supra Cf., Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes v. Texas, 381 U.S. 532 (1965). A third group of cases suggests the defendant is being protected from the prejudicial atmosphere of which the mob domination is indicative. See, e.g., Seals v. State, 208 Miss. 236, 44 So. 2d 61 (1950). Cf., People v. McKay, 37 Cal. 2d 792, 236 P.2d 145 (1951). REPLY TO STATE'S OBJECTION ΤΟ DEFENDANT'S MOTION FOR CHANGE OF VENUE Page 2 concerned with 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, and 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. " (emphasis added and citations omitted). State v. Ish, 551 P.3d 746 (2024) I. The Amount of media coverage in Latah County is the highest in the state and does not wane. There are more than 1,300 specific media stories covering Latah County. These stories are in print, digitally, and on radio and television. Media coverage continues and the coverage is often inaccurate and inflammatory. The coverage conditions the potential venire panel to think of Mr. Kohberger as guilty and that various bits of information are factual and support guilt. The media coverage inundating Latah County does not tell citizens that no evidence has been presented at this time; that there are no facts on the record at this time; that Bryan Kohberger is innocent; that only a jury decides what the facts are and whether the facts show beyond a reasonable doubt a person is guilty. Publicity regarding Mr. Kohberger has been ongoing since December 30, 2022. It rises and falls but does not wane. The media measured and presented by Truescope in Exhibit C of the Memorandum in Support of Change of Venu focused on traceable media. That means that media in a particular location was measured. As is pointed out by the State in footnote 1 found on page 2 of it's objection, publicity regarding Mr. Kohberger generating from YouTube, Facebook, Tik Tok, Podcasts, streaming services like Hulu and Netflix were not included in Truescope's report. Those highly inflammatory, and prejudicial and inaccurate media forms have reached Idaho's citizens, but measuring them specific to location is not possible. Hadden directs the Court to consider media coverage in the current venue and logically, venues considered as alternates. Truescope cannot measure the location of who reads Facebook (especially private REPLY TO STATE'S OBJECTION ΤΟ DEFENDANT'S MOTION FOR CHANGE OF VENUE Page 3 groups), nor can it determine the location of who follows certain podcasts. These limitations do not change the data. Latah County, making up only 2.75 percent of Idaho's population has received 36 percent of the media coverage. This is the highest ratio in the entire state. Ada County, with the largest population in the state, has significantly less coverage per person. II. Unrefuted Survey Data Justifies a Change of Venue The State's claims about the survey are wrong. Dr. Edelman designed the survey questions and how, depending on the participant's answer, the order of questions would flow. The survey report lays out the questions and responses for all four counties and demonstrates that the survey was conducted exactly the same way in each county surveyed. The only difference is the number of participants2. The survey report shows the impact of the media coverage. The more media items a potential juror knew, the higher the prejudgment for guilt. Latah County participants knew more media items than the other counties. The State criticized the content of the survey, complaining that not enough of the surveyed items were false³. Inadmissible or false statements are the information that this Court must consider. See Ish at 764. The State further criticized the survey, asking the court to disregard it entirely, alleging the survey did not include record of citizens in Latah County who did not want to participate in the survey. That assertion is incorrect. The last page of the survey report provides a table depicting the total amount of numbers dialed and what happened. In support of its argument, the State cites the Court to a study done by Pew Research Center, however, only a partial statement from the study was included. Dr. Veronica Dahir has reviewed the survey done in this case as 2 The defense made a decision about where to focus time and money on a full 400 surveys. While Mr. Kohberger will gladly agree to venue changed to any of Ada, Canyon or Bannock counties, Ada County is the most rational due to factors of population size, courtroom security and layout, cost / convenience and prior precedent of other district courts in Idaho. 3 The State complained about the survey containing items that were false or inadmissible in a previous hearing. Now they complain that we should have put in more of these items. REPLY TO STATE'S OBJECTION ΤΟ DEFENDANT'S MOTION FOR CHANGE OF VENUE Page 4 well as the Objection filed by the State. She opines that any non-response rate does not create a bias or invalidate the survey. Exhibit F-1, Dr. Dahir declaration. The survey conducted in Mr. Kohberger's case is unrefuted and is reliable. III. The State's Proposed Remedies: Expanding to Nez Perce County, vetting, or sequestration are not valid remedies supported by experts. Expanding the jury pool to Nez Perce County is not a remedy because the residents of Lewiston and Nez Perce are in the same designated market area as Latah County. They have been exposed to the same excessive media coverage, have proximity and share the same pressure to convict that exists in Latah County. Even the two counties combined do not reach even a third of the size of the available jury pool in Ada County. The residents of Nez Perce County have been exposed to 36 percent of the total media coverage and are more than 10 times more likely to encounter coverage as compared to residents of Ada County. Vetting, as proposed by these State does not work. For decades, the courts have recognized that simply because a jury of 12 can be selected, does not mean that the jury is impartial: The requirement of the law is not satisfied by the mere empaneling of 12 men against whom no legal complaint can be made. The defendant is entitled to be tried in a county where a fair proportion of the people qualified for jury service may be used as a venire from which a jury may be secured to try his case fairly and impartially, and uninfluenced by a preponderant sentiment that he should be flung to the lions. State v. Seal, 208 Miss. 236, 248, 44 So. 2d 61,67 (1950). See also cases cited in footnote 1. This is why attempts to mitigate juror bias are best done “ where there has been less emotional investment and less publicity exposure regarding the case. “ Dr. El Alayli, Def. Ex.Ε. pg. 12 Answers to the jury surveys in Ada County showed less emotional connection in total 4 See Exhibit B, Dr. Edelman's Survey Report, 370 pages of Lewiston Tribune news stories about Bryan Kohberger. REPLY TO STATE'S OBJECTION TO DEFENDANT'S MOTION FOR CHANGE OF VENUE Page 5 contravention of Latah County. When asked how the community would react to a not guilty verdict, surveyors answered: " They would go on with life as always. " “ I think they would take it well. " “ I don't know if there would be super strong feelings. 66 " That's what the jury is for, to decide based on the evidence. If a jury finds him not guilty, then he wasn't guilty. Because they hear the evidence at the trial. ” “ I think they would accept it. ” Rather than produce an expert who refutes the studies and opinions of Dr. El Alayli and Dr. Veronica Dahir, the state points to cases that have not analyzed such research. Judge Boyce in State v. Daybell explains well how the case law dating back 50 years doesn't address the concerns of today. For example: Once can only imagine what the Justices who decided [Irvin v. Dowd] 50 years ago would have thought about that concern today, when every potential jury has instant access to limitless media, literally at their fingertips, on a handheld device. 5 Sequestration of 18 jurors for three months is unnecessary and untenable. Determination of sequestration is not timely as no motion for such is pending before this Court. Nor does the state produce details regarding costs to support the validity of its assertion that sequestering jurors from Ada County in Latah County is more cost effective than moving the trial to Ada County. Idaho Criminal Rule 21 (a) and Idaho Code §19-1801 were implement for a reason. This case is that very reason. IV. Precedent in Idaho supports a change of venue 5 See State v. Daybell, Cr22-21-1623 “ Memorandum Decision on Defendant's Motion to Change Venue ” Dated 10/8/21, pg. 6. REPLY TO STATE'S OBJECTION TO DEFENDANT'S MOTION FOR CHANGE OF VENUE Page 6 Three capital cases in Idaho have recently had a venue change: State v. Lori Vallow, State v. Chad Daybell and State v. Brian Dripps. All cases stem from Southeastern Idaho. The courts in these cases all granted a change a venue with a motion supported by evidence of extensive media coverage. None of the cases presented extensive expert surveys and none of these cases presented experts specializing in the science behind juror decision making. Of the three cases, two went to trial and as the state points out, there were lines of spectators outside of the courthouse Ada County. Jurors in both cases provided in depth media interviews post-trial and expressed that the Ada County court staff and marshals ' provided great infrastructure that made a big difference in their ability to withstand the significant commitment. ” This infrastructure includes: room for jurors to spread out during lunch breaks into jury assembly room, many bathrooms to make short breaks efficient, travel to and from the courthouse with security, ability to avoid the press and spectators by being bused underneath the courthouse, and experience of the courtroom deputies to provide security. Such accommodations are not possible in Moscow. The facilities do not exist to accommodate a jury of 18 for three months in a case where the public and press will be lined up outside of the exterior of the building. The precedent of courts changing venue in Idaho and the experience of Ada County having handled high profile cases should be followed and used in this case. Conclusion Mr. Kohberger provided this Court with extensive and unrefuted evidence. The evidence includes proof of excessive media coverage in Latah County that is both prejudicial and false, along with declarations of experts explaining why remedies other than a change of venue are not 6 See State v. Daybell, Cr22-21-1623 “ Memorandum Decision on Defendant's Motion to Change Venue ” Dated 10/8/21. 7 https://www.youtube.com/watch?v=8xrHrD1ZOhA, begging at minute 19:00 jurors discussion regarding logistics; https://www.youtube.com/watch?v=92rrkKNkUm8&t=2273s, 3:00 – 6:30 minutes REPLY TO STATE'S OBJECTION ΤΟ DEFENDANT'S MOTION FOR CHANGE OF VENUE Page 7 enough. This evidence will be further developed at the change of venue hearing. The traumatized town of Moscow is understandably filled with deeply held prejudgment opinions of guilt. The surrounding area of Nez Perce County and Lewiston are not situated differently. The issue of venue reaches finality with a change to Ada County because the Latah County mob mentality will never produce a venire that results in a cross section of the community. DATED: / s / Elisa G. Massoth Elisa G. Massoth CERTIFICATE OF DELIVERY I hereby certify that a true and correct copy of the foregoing was personally served as indicated below on the 19 day of August, 2024 addressed to: Latah County Prosecuting Attorney –via Email: paservice@latahcountyid.gov Elisa Massoth – via Email: legalassistant@kmrs.net Dul REPLY TO STATE'S OBJECTION TO DEFENDANT'S MOTION FOR CHANGE OF VENUE Page 8 State of Idaho v. Jonathan Renfro Kootenai County Ada County Recognize the case 88.8% 33% Do not recognize the case 11.2% 67% Kootenai County Ada County Guilty 81% 60%% Not guilty 3% 5% Don't know; Refused; Other 16% 35% State of Tennessee v. Andrew Delke Davidson County Hamilton County Recognize the case 67% 16% Do not recognize the case 33% 84% Davidson County Hamilton County Guilty 48% 53% Not guilty 34% 13%% No opinion 8% 15% Don't know; Refused; Other 11% 20% United States v. Jairo Saenz Eastern District Southern District Recognize the case 63% 49% Do not recognize the case 37% 51% Eastern District Southern District Guilty 54% 39% Not guilty 1% 2% No opinion 7% 14% Don't know; Refused; Other 30% 46% DEFENDANT'S EXHIBIT NO. B-1 IDENTIFICATION / EVIDENCE CASE NOR29-22-2805 DATE: 8/19/24 United States v. James Cloud Yakima Richland Spokane Recognize the case 55% 18% 10% Do not recognize the case 45% 82% 90% Yakima Richland Spokane Guilty 66% 40% 40% Not guilty.9% No opinion 8% 26% 25% Don't know; Refused; Other 25% 34% 35% State of Minnesota v. Alexander Kueng, et al. (George Floyd case) Hennepin Dakota Olmsted Recognize the case 99% 100% 97% Do not recognize the case 1% 0% 3% Hennepin Dakota Olmsted Guilty 60% 47% 49% Not guilty 22% 30% 29% No opinion 8% 7% 9% Don't know; Refused; Other 11% 17% 14% Volume of Media Coverage over Time Latah & Ada Counties 1 / 1 / 23-8 / 19 / 24 215 211 198 194 172 171 161 151 135 130 130 126 117 119 108 106 99 95 92 91 87 84 81 72 65 65 54 51 47 42 44 44 39 36 34 29 30 22 24 / 37 23 18 13 6 • 0 1 0 1 1 11 0 -20 2023 2023 2023 2023 2023 2023 2023 2023 2023 2023 2023 2023 2024 2024 2024 2024 2024 2024 2024 2024 Jan Feb Mar Apr May June July Aug Sep Oct Nov Dec Jan Feb Mar Apr May June July Aug Latah Ada DEFENDANT'S EXHIBIT NO. C-1 IDENTIFICATION / EVIDENCE CASE NOR 29-22-2805 truescope DATE: 8/19/24 Volume of Media Coverage over Time US Coverage 1 / 1 / 23-8 / 19 / 24 14K 13,268 12K 10K 8K 6K 4,986 4,798 4,470 4K 3,602 2,731 2,827 2,4442,598 2,100 1,960 1,888 2K 1,548 1,288 1,085 973 853 404 520 534 //////////////////// - US truescope DECLARATION OF VERONICA DAHIR, PH.D. I, Veronica Dahir, solemnly, sincerely, and truly declare and affirm as follows: 1. EXPERIENCE AND QUALIFICATIONS I am the Director of Survey Operations for the Nevada Center for Surveys, Evaluation, and Statistics and the Director of the Grant Sawyer Center for Justice Studies at the University of Nevada, Reno (UNR). I received my Ph.D. from the University of Nevada, Reno in Interdisciplinary Social Psychology. I have over 20 years of experience with survey research, and I have conducted over 100 surveys during my career, including the Behavioral Risk Factor Surveillance System (BRFSS) Survey sponsored by the Centers for Disease Control and Prevention (CDC) in Atlanta, Georgia since 2006. I also teach a graduate level course for the Judicial Studies Program at UNR entitled, “ JS 718: Scientific Research Methods for Judges, ” which includes an entire section on Survey Methodology. I have also served as a guest lecturer for other UNR faculty for their graduate-level courses on topics related to Survey Methodology. My full Curriculum Vitae was previously provided to the Court in Defendant Kohberger's Memorandum in Support of a Motion to Change Venue. II. INTRODUCTION Counsel for the defendant in State of Idaho v. Bryan C. Kohberger, as part of my duties previously stated in my original export report, requested I consider the prosecution's survey critiques of a community attitude survey conducted by Dr. Bryan Edelman and Research Strategies, Inc., and to give my opinion about the merit of those claims as they relate to the survey. I was provided with the defendant's motion for a change of venue, the prosecution's response to that motion, Dr. Edelman's declaration related to the survey results, the report written by Dr. Edelman related to the survey results, and a copy of the survey that was used for data collection. My declaration is based on my educational background and expertise in the field of social psychology and survey research and is independent of my employment at the University of Nevada, Reno. DEFENDANT'S EXHIBIT NO. F-1 1 Dahir IDENTIFICATION / EVIDENCE CASE NOR29-22-2805 DATE: 8/19/24 I give my opinion based on previous research in the field of survey research, the facts I know to be true based on the information in the Surv