Court Filing
Filed: 05/23/2025 13:09:43 Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court Anne Taylor Law, PLLC By: Deputy Clerk-Waters, Renee 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. OBJECTION TO THE COURT'S REQUEST FOR THE DEFENSE TO BRYAN C. KOHBERGER, SUBMIT A REDACTED COPY OF EX PARTE FILING TO THE STATE Defendant. COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby submits his Objection to providing a redacted copy of his Ex Parte Supplement to his Motion to Continue to the State. Notwithstanding this objection, Mr. Kohberger attaches his proposed redacted ex parte motion and supporting declaration as directed by the Court. OBJECTION TO THE COURT'S REQUEST FOR DEFENSE TO SUBMIT A REDACTED COPY OF EX PARTE FILING TO THE STATE Page 1 Mr. Kohberger has a fundamental constitutional right to a complete and accurate record of all proceedings in his case, and he must be allowed the opportunity to make a complete record in order to afford adequate appellate review in the event of conviction. See, e.g., Griffin v. Illinois, 351 U.S. 12 (1956); Roberts v. LaVallee, 389 U.S. 40 (1967). The ABA Guidelines specifically instruct capital counsel to tailor any legal arguments “ to the particular facts and circumstances in the client's case. ” ABA Guideline 10.8, 31 HOFSTRA L. REV. at 1029. In this circumstance, that Guideline require detailed information about why more time is required to complete the mitigation investigation prior to trial. “ counsel must... evaluate each potential [legal] claim in light of: (a) the unique characteristics of death penalty law and practice; and (b) the near certainty that all available avenues of post-conviction relief will be pursued in the event of conviction and imposition of a death sentence; and (c) the importance of protecting the client's rights against later contentions by the government that the claim has been waived, defaulted, not exhausted, or otherwise forfeited ”. Commentary to ABA Guideline 10.8, 31 HOFSTRA L. REV. at 1030 (“ One of the most fundamental duties of an attorney defending a capital case at trial is the preservation of any and all conceivable errors for each stage of appellate and post-conviction review. Failure to preserve an issue may result in the client being executed even though reversible error occurred at trial. For this reason, trial counsel in a death penalty case must be especially aware not only of strategies for winning at trial, but also of the heightened need to fully preserve all potential issues for later review. " (emphasis added)). Mr. Kohberger has the right to a confidential defense mitigation investigation Pursuant to Rule 1.6 of the Idaho Rules of Professional Conduct (Confidentiality of Information), counsel have an obligation to maintain confidentiality with respect to information relating to the representation of a client absent informed consent or implied authorization. This ethical rule is broader than attorney-client privilege. It protects virtually everything the lawyer OBJECTION TO THE COURT'S REQUEST FOR DEFENSE ΤΟ SUBMIT A REDACTED COPY OF EX PARTE FILING TO THE STATE Page 2 knows about the client's matter, regardless of the source. Defense counsel is therefore ethically bound to not provide the prosecution with anything that is not required by statute. In addition to the Rules of Professional Conduct, the details of defense counsel's investigation are also protected by the attorney work product doctrine. See Hickman v. Taylor, 329 U.S. 495 (1947) (“ In performing his various duties it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper presentation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients ' interests. "). Finally, in support of his objection, Mr. Kohberger relies on his Constitutional Rights. The information contained in the ex parte ' filings fall under Mr. Kohberger's right to a confidential defense investigation which is part and parcel of his right to effective assistance of counsel. See, e.g., Strickland v. Washington, 466 U.S. 668, 691 (1984) (“ [C] ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. ”) Both the Sixth Amendment and the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases impose obligations on defense counsel to conduct an unparalleled investigation in preparation for the penalty phase of a capital trial. As required the mitigation investigation requires extensive investigation into personal and family history. See Rompilla v. Beard, 545 U.S. 374, 374 (2005) (jury may have returned different verdict had it heard mitigating evidence that trial counsel did not investigate and uncover); Wiggins v. Smith, 539 U.S. 510, 533 (2003) (“ A decision not to investigate [information that could bear on the penalty phase of a capital case] thus must be directly assessed for reasonableness in all the circumstances. ”... counsel's “ partial presentation of a mitigation case OBJECTION TO THE COURT'S REQUEST FOR DEFENSE ΤΟ SUBMIT A REDACTED COPY OF EX PARTE FILING TO THE STATE Page 3 suggest that their incomplete investigation was the result of inattention, not reasoned strategic judgment. "). Mr. Kohberger has an Eighth Amendment right for the jury make an individualized sentencing decision with regard to life or death. That means each juror must be able to consider all mitigating evidence about the defendant's character and life history. See Woodson v. North Carolina, 428 U.S. 280 (1976) (consideration of the character of the defendant is “ a constitutionally indispensable part of the process of inflicting the penalty of death "); Payne v. Tennessee, 501 U.S. 808, 822 (1991) (“ [V] irtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances. "); Tennard v. Dretke, 542 U.S. 274 (2004) (“ The Eighth Amendment requires that the jury be able to consider and give effect to a capital defendant's mitigating evidence.... [T] he question is simply whether the evidence is of such a character that it might serve as a basis for a sentence less than death. ”). Ex Parte Pleadings are important for the Court understand how much investigation remains outstanding, and the importance of these areas of investigation, before the trial date. Specific avenues of mitigation investigation that remain outstanding in this case have been the cause for reversal in other capital cases, because the jury did not have all relevant information in making its individualized sentencing determination pursuant to the 8th Amendment. Counsel cannot discuss the specifics of the ongoing mitigation investigation in open court in front of the State and public. The ABA Guidelines specifically direct counsel in a capital case to request resources ex parte and in camera because “ the defense should not be required to disclose privileged communications or strategy to the prosecution. ” ABA Guidelines at 1004. Counsel intends to keep detailed records and lists of everything that remains incomplete due to lack of sufficient time to continue the investigation. In the event of a conviction and death sentence, this will ultimately become the blueprint for post-conviction counsel's claim that Mr. OBJECTION TO THE COURT'S REQUEST FOR DEFENSE ΤΟ SUBMIT A REDACTED COPY OF EX PARTE FILING TO THE STATE Page 4 Kohberger received ineffective assistance of counsel and did not receive an individualized sentencing determination as the 8th Amendment requires. Counsel should have the opportunity to share this information with the court, ex parte, so as to not leave this Court guessing about the grounds for reversal that will exist. Making a complete record about what remains to be done in the mitigation investigation— including what avenues of investigation are still ongoing, including known witnesses and records that remain outstanding, and emerging mitigation themes that require complete investigation and may require expert assistance — will inevitably reveal significant defense strategy, work-product, and information gleaned from confidential attorney-client communication. It would require the defense to reveal the theories of defense at the penalty phase, the results of investigation or consultation that has already taken place, and information that is anticipated to be gleaned from witnesses and records. The State is not entitled to this information about the defense's confidential investigation. Prosecutors have an ethical and legal obligation to seek justice over convictions. See Berger v. United 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). 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. OBJECTION TO THE COURT'S REQUEST FOR DEFENSE ΤΟ SUBMIT A REDACTED COPY OF EX PARTE FILING TO THE STATE Page 5 3d 991, 1081 (E.D. Mo. 2017) (rev'd on procedural grounds by Deck v. Jennings, 978 F.3d 578 (8th Cir. 2020)). Other proceedings such as those related to funding are permitted to occur in an ex parte fashion in order to preserve confidentiality. The comprehensive information about the entirety of the ongoing mitigation investigation would contain significantly more information than would be contained in a funding request for an expert. There would no logical consistency to allowing funding requests to proceed in such a manner, while simultaneously requiring counsel to reveal the full mitigation investigation and strategy in order to secure adequate time to complete the investigation to constitutional standards. Thus, in order to maintain confidential communications and strategy, and make a complete record to this court demonstrating the need for additional time to investigate, Mr. Kohberger must be permitted leave to file an ex parte brief, and if necessary, have an ex parte hearing about the outstanding mitigation investigation. This court has authority to permit an ex parte filing even in the absence of explicit statutory authority. Doing so is necessary to protect Mr. Kohberger's constitutional rights, and constitutional rights always reign supreme over state statutory schemes. Moreover, because there is a “ special need for reliability and fairness in death penalty cases, the Eighth Amendment does, and must, apply to the death penalty ‘ with special force. ” Glossip v. Gross, 576 U.S. 863, 924 (2015) (Breyer, J., dissenting) (quoting Roper v. Simmons, 543 U.S. 551, 568 (2005)). Heightened constitutional obligations apply in death penalty cases because a life-or-death decision is “ qualitatively different ” from decisions involved in any other kind of case, Woodson v. North Carolina, 428 U.S. 280, 304 (1976), and the nature, quality, and gravity of death cases makes the defense of capital cases fundamentally unlike any other type of legal endeavor. See, e.g., Sawyer v. Whitley, 505 U.S. 333, 343 (1992). Things that may be perfectly acceptable in ordinary murder trials may not pass constitutional scrutiny in capital cases. See OBJECTION TO THE COURT'S REQUEST FOR DEFENSE ΤΟ SUBMIT A REDACTED COPY OF EX PARTE FILING TO THE STATE Page 6 Caspari v. Bolden, 510 U.S. 383, 393 (1994) (“ [T] ime and again the [U.S. Supreme] Court has condemned procedures in capital cases that might be completely acceptable in an ordinary case. "). This Court must afford heightened constitutional protection in favor of the defendant when interpreting the requirements of the state and federal constitutions as applicable to this case. DATED this 23 day of May, 2025. ANNE C. TAYLOR ANNE TAYLOR LAW, PLLC CERTIFICATE OF DELIVERY I hereby certify that a true and correct copy of the foregoing was personally served as indicated below on the 23 day of April, 2025 addressed to: Latah County Prosecuting Attorney –via Email: paservice@latahcountyid.gov Elisa Massoth – via Email: legalassistant@kmrs.net Jay Logsdon – via Email: Jay.Logsdon@spd.idaho.gov Bicka Barlow, Attorney at Law – via Email: bickabarlow@sbcglobal.net Jeffery Nye, Deputy Attorney General – via Email: Jeff.nye@ag.idaho.gov Dul OBJECTION TO THE COURT'S REQUEST FOR DEFENSE ΤΟ SUBMIT A REDACTED COPY OF EX PARTE FILING TO THE STATE Page 7