Reply to Mr. Kohberger's Objection

Filed: 05/11/2023 13:03:04 Second Judicial District, Latah County Julie Fry, Clerk of the Court
By: Deputy Clerk-Oliphant, Jennifer Wendy J. Olson, Bar No. 7634 wendy.olson@stoel.com Cory M. Carone, Bar No. 11422 cory.carone@stoel.com
STOEL RIVES LLP

101 S. Capitol Boulevard, Suite 1900 Boise, ID 83702
Telephone: 208.389.9000
Facsimile: 208.389.9040 Attorneys for Intervenors
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAH

STATE OF IDAHO,

Plaintiff, Case No. CR29-22-2805
V. REPLY TO MR. KOHBERGER'S

OBJECTION DATED MAY 11, 2023

BRYAN C. KOHBERGER,

Defendant.

THE ASSOCIATED PRESS; RADIO

TELEVISION DIGITAL NEWS

ASSOCIATION; SINCLAIR MEDIA OF

BOISE, LLC / KBOI-TV (BOISE); STATES

NEWSROOM DBA IDAHO CAPITAL SUN;

TEGNA INC./KREM (SPOKANE), KTVB

(BOISE) AND KING (SEATTLE);

EASTIDAHONEWS.COM; THE LEWISTON

TRIBUNE; WASHINGTON STATE

ASSOCIATION OF BROADCASTERS;

IDAHO PRESS CLUB; IDAHO EDUCATION

NEWS; KXLY-TV / 4 NEWS NOW AND

KAPP / KVEW-TV-MORGAN MURPHY

MEDIA KXLY-TV / 4 NEWS NOW; SCRIPPS

MEDIA, INC., DBA KIVI-TV, A DELAWARE

Reply to Mr. Kohberger's Objection Dated May 11, 2023-1

CORPORATION; THE SPOKESMAN-

REVIEW / COWLES COMPANY; THE NEW

YORK TIMES COMPANY; LAWNEWZ,

INC.; ABC, INC.; WP COMPANY LLC, DBA

THE WASHINGTON POST; SOCIETY OF

PROFESSIONAL JOURNALISTS; THE

MCCLATCHY COMPANY, LLC; and THE
SEATTLE TIMES,

Intervenors.

Mr. Kohberger's objection to Intervenors ' Motion to Reconsider Order dated May 4, 2023, highlights the exact problem here: he requested, and received, a gag order without submitting supporting evidence to the Court. He says he now has evidence to support his request for a gag order, but he needs time to put it together-even though a gag order has been in place for over four months. And he asks the Court to continue to enforce a gag order while he collects his evidence.

Mr. Kohberger's request turns the judicial process on its head. When a party requests a court order, he has the burden of submitting the evidence that supports that order before the Court issues the order. A party is not entitled to obtain relief first, and then take months to collect and present evidence that purportedly supports the request for relief.

While those principles apply generally to the judicial process, they are paramount when the unsupported court order restricts First Amendment rights. " The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. " Am.

C.L. Union of Idaho, Inc. v. City of Boise, 998 F. Supp. 2d 908, 918 (D. Idaho 2014) (quoting Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012).

Intervenors have suffered irreparable harm to their constitutional rights since January. The judicial process, including the expectation that a party submits evidence before obtaining relief (particularly relief that affects another party), is designed to prevent that irreparable harm. As Mr.

Reply to Mr. Kohberger's Objection Dated May 11, 2023-2

Kohberger now acknowledges, that process was not followed here as he still has not even collected the evidence he intends to submit.

As Intervenors have requested, the Court should stay enforcement of the Amended Nondissemination Order pending any further briefing or hearing on Intervenors ' Motion to Intervene and Motion to Vacate the Amended Nondissemination Order to avoid any additional irreparable harm in the interim. If, indeed, an evidentiary hearing is the next step to determine whether a gag order is needed, no gag order should be enforced in advance of that hearing.

DATED: May 11, 2023. STOEL RIVES LLP / s / Wendy J. Olson Wendy J. Olson Cory M. Carone Attorneys for Intervenors Reply to Mr. Kohberger's Objection Dated May 11, 2023-3

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 11th day of May 2023, I served a true and correct copy of the foregoing upon the following named parties by the method indicated below, and addressed to the following:
Latah County Prosecutor's Office Hand Delivered William W. Thompson, Jr. Via Facsimile Prosecuting Attorney U.S. Mail Latah County Courthouse Via email P.O. Box 8068 X Via iCourt efile & serve at:
Moscow, ID 83843 paservice@latahcounty.id.gov Anne Taylor Hand Delivered Attorney at Law Via Facsimile P.O. Box 9000 U.S. Mail Coeur d'Alene, ID 83816 ✗ Via email at ataylor@kcgov.us Via iCourt efile & serve at:
pdfax@kcgov.us Jeff Nye Hand Delivered Deputy Attorney General Via Facsimile P.O. Box 83720 U.S. Mail Boise, ID 83720 ✗ Via email at jeff.nye@ag.idaho.gov Via iCourt efile & serve at:
Shanon Gray Hand Delivered 2175 N. Mountain View Road Via Facsimile Moscow, ID 83843 U.S. Mail Via email X Via iCourt efile & serve at:
shanon@graylaw.org Elisa G. Massoth, PLLC Hand Delivered Attorney at Law Via Facsimile P.O. Box 1003 U.S. Mail Payette, ID 83661 Via email X Via iCourt efile & serve at:
emassoth@kmrs.net / s / Wendy J. Olson Wendy J. Olson Reply to Mr. Kohberger's Objection Dated May 11, 2023-4