Court Filing
Filed: 09/06/2024 16:55:18 Second Judicial District, Latah County Julie Fry, Clerk of the Court By: Deputy Clerk-Mottern, Beth 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 No. CR29-22-2805 Plaintiff,) ) ORDER GRANTING DEFENDANT'S VS.) MOTION TO CHANGE VENUE ) BRYAN C. KOHBERGER,) ) Defendant.) I. INTRODUCTION On January 30, 2024, Defendant Bryan C. Kohberger filed a Motion for Change of Venue pursuant to Idaho Criminal Rule 21, Idaho Code § 19-1801, Article I, sections 1, 6, 7, 13, and 18 of the Idaho Constitution, and the 5th, 6th, 8th, and 14th Amendments of the United States Constitution. On February 8, 2024, the State filed an Objection to Kohberger's motion. The hearing on Kohberger's motion was originally scheduled for June 27, 2024. Thereafter, the parties stipulated to continuing the hearing to August 29, 2024. On July 22, 2024, Kohberger filed a Memorandum in Support of Motion for Change of Venue with various exhibits attached. The State filed an additional objection on August 12, 2024, and Kohberger filed a reply on August 19, 2024, with additional exhibits. A change of venue hearing was held on August 29, 2024. Kohberger was present and represented by Anne Taylor, Elisa Massoth, and Jay Logsdon. The State was represented by William Thompson, Jr., and Ashley Jennings, Latah County Prosecutor's Office, and Ingrid Batey and Jeff Nye, Office of the Attorney General. ORDER GRANTING DEFENDANT'S MOTION TO CHANGE VENUE-1 At the hearing, Defendant presented expert testimony from James Todd Murphy, Dr. Amani El-Alayli, Dr. Bryan Edelman, and Dr. Veronica Dahir. The State did not call any witnesses. The court has spent many months carefully considering the legal and logistical concerns with a trial of this length and magnitude, carefully reading each submission, listening to each expert, and evaluating each party's position. Based upon the totality of the factors, Defendant's Motion for Change of Venue is granted. II. BACKGROUND On November 13, 2022, four University of Idaho students, Kaylee Goncalves, Madison Mogen, Xana Kernodle, and Ethan Chapin, were found deceased in Goncalves, Mogen, and Kernodle's off-campus home in Moscow, Idaho. The cause of death for each was ruled a homicide. As news of the tragedy broke, media outlets from around the country descended upon Moscow. As law enforcement investigated, news stations, newspapers, and social media were flooded with stories and speculation about the homicides. Throughout the course of the investigation, the Moscow Police Department, in partnership with the University of Idaho, the Latah County Prosecutor's Office, and the Idaho State Police, held press briefings to answer questions and reassure the public. Appropriately, the information released was limited to protect the integrity of the ongoing investigation. On December 30, 2022, Kohberger was arrested and charged with four counts of Murder in the First Degree and one count of Burglary. Again, media outlets descended upon Moscow and the news coverage quickly focused on Kohberger. That same day, an Order Governing Courthouse and Courtroom Conduct was entered to help alleviate any potentially prejudicial photography, audio or video recordings, and interviews within the courthouse. The conduct order has remained in place throughout the proceedings. ORDER GRANTING DEFENDANT'S MOTION TO CHANGE VENUE-2 Because of the extensive media coverage from the outset of the homicides, a nondissemination order was also quickly put into place by stipulation of the parties on January 3, 2023, to help protect Kohberger's right to a fair trial by an impartial jury. The non-dissemination order, as amended, has remained in place throughout the duration of this case. In an additional effort to help protect Kohberger's right to a fair trial, on November 17, 2023, this Court entered an order removing cameras from the courtroom. Since that time, the proceedings have been streamed via the Court's YouTube channel, which in theory allows the public access to the proceedings while minimizing prejudicial photographs and videos focusing solely on Kohberger and his every move. Despite efforts by the parties and the Court to protect the jury pool from being inundated with information that is potentially prejudicial and false, extensive media coverage by mainstream media sources such as newspapers, radio stations, and television news outlets has continued throughout the state and nationally. Additionally, and perhaps more challenging, is the ongoing spread of prejudicial misinformation, rumors, and patently false theories of the case on social media outlets such as Facebook, podcasts, and blogs. There have also been numerous television shows and " documentaries " produced about the homicides and at least one book has already been published. The parties agree the case has generated extensive coverage by the media, internet sleuths, and others trying to capitalize on the tragedy, but disagree on how the Court should attempt to remedy the issue to ensure Kohberger is tried by a fair, impartial jury. In sum, Kohberger argues that venue must be changed from Latah County to a location with a larger population that is geographically distant from where the homicides occurred. The State asserts that a larger juror pool, extensive juror questionnaires, and voir dire are sufficient remedies that will result in a fair and impartial jury in Latah County. ORDER GRANTING DEFENDANT'S MOTION TO CHANGE VENUE-3 In addition to the issue of juror prejudice resulting from extensive coverage of the homicides and Kohberger by the media and others and the smaller population of Latah County, the defense also asserts the trial should be moved outside of Latah County " for the convenience of the parties and witnesses, and in the interest of justice. " The State disagrees that moving the trial would be in the interest of justice or convenient to the parties and witnesses. III. EVIDENCE As noted above, at the change of venue hearing, Kohberger presented expert testimony from James Todd Murphy, Dr. Amani El-Alayli, Dr. Bryan Edelman, and Dr. Veronica Dahir. Additionally, Kohberger submitted several exhibits depicting news stories, news clips, and social media posts for this Court's review. The State did not call any witnesses or submit any evidence. The Court will summarize the key takeaways from the testimony offered by each of Kohberger's experts. 1. James Todd Murphy James Todd Murphy is the President of Truescope North America. Truescope provides media monitoring services that offer information to help understand the impact of media coverage on a particular community. Truescope looks only at mainstream media sources such as newspapers and news stations. Of the mainstream media coverage in Idaho of this case, 36% of that coverage has been within Latah County. This would include media like the Moscow Pullman Daily News, Lewiston Tribune, and the television news stations out of Spokane, Washington. Kohberger requests this case be moved to Ada County, which has 34% of the mainstream media coverage in Idaho. While the media coverage percentages are similar between the two counties, Ada County has a much larger population than Latah County. According to Murphy, this means that the media coverage in Ada ORDER GRANTING DEFENDANT'S MOTION TO CHANGE VENUE-4 County is much more diluted while Latah County is saturated with such coverage. Stated differently, “ [m] edia coverage in Latah County offered twice as many opportunities to be seen per person than in Ada County. The higher volume of coverage in Latah County coupled with the smaller pool of eligible jurors, means people in Latah County had twice as many chances to be exposed to this case versus those residing in Ada County. " Ex. C attached to Def.'s Mem. in Supp. of Change of Venue. When looking at the volume of media coverage over time, Ada County had a higher volume of media coverage from February 2023 to June 2023; however, since that time, Latah County has consistently had the higher volume of media coverage with the two counties being similar overall in their current coverage of the case. All of this taken together means that the probability of a Latah County resident being exposed to media coverage of the case is much higher than the probability of an Ada County resident being exposed to media coverage of the case. 2. Dr. Amani El-Alayli Dr. Amani El-Alayli is a social psychologist and social cognition researcher. As part of her research, Dr. El- Alayli evaluates how publicity about a case can shape potential jurors ' attitudes. Dr. El-Alayli has found that the more publicity a case generates, the more likely potential jurors are to dislike the defendant and view that defendant as guilty. Dr. El-Alayli believes that the publicity Latah County residents have been exposed to makes them biased against Kohberger for several reasons, even if that bias is subconscious. First, Latah County authority figures have publicly spoken about Kohberger's guilt in absolute terms. The former Moscow Police Department Chief James Fry, who was the Police Chief during the investigation into the homicides, publicly declared he had no doubts that the " right guy " had been arrested for the crimes. After Kohberger's arrest, the University of Idaho President Scott Green stated publicly that the University community once again " felt safe. " Generally speaking, individuals are more likely to trust and believe authority figures, so ORDER GRANTING DEFENDANT'S MOTION TO CHANGE VENUE-5 these statements by Latah County authority figures are particularly impactful to Latah County residents. Second, because Latah County is a small, close-knit community, community members feel a sense of loyalty to community views and fellow community members. For example, Latah County jurors may feel an inner clash or conflict if they felt the State had not proven Kohberger's guilty beyond a reasonable doubt because they may feel voting not guilty would cause community outrage or once again cause fear within the community. Thus, the inner clash may cause jurors to vote guilty even when they believe there is reasonable doubt as to guilt. This inner clash may be even greater when personal connections within Latah County are considered (i.e., my neighbor who is a police officer may be upset with me if I don't vote guilty). Similarly, given the small size of Latah County, Latah County residents had a much more emotional experience surrounding the homicides, and, therefore, are much more invested in the case. For example, when Kohberger was arrested, Latah County residents who had been fearful experienced a sense of relief, which equates to believing Kohberger is guilty. Next, the extensive negative publicity surrounding Kohberger leads potential jurors to think of Kohberger negatively. Stated differently, before Kohberger's arrest, if one was to hear the name Bryan Kohberger, the reaction would have been neutral. Now, after Kohberger's name and picture have been associated with terms like " murderer, " " evil, " " killer, " and " stalker, " when individuals hear that name there is a negative association. This impact is greater in Latah County because of the saturation of the extensive media coverage. Finally, given all of this, Dr. El-Alayli opined that it was arguably impossible for residents of Latah County to be asked to serve as impartial jurors because they are biased against Kohberger, even if they do not want to be biased or think they are biased. This is particularly difficult for the ORDER GRANTING DEFENDANT'S MOTION TO CHANGE VENUE-6 defense to overcome because when humans process information while experiencing emotions like fear and anger, it is difficult to change the initial opinions formed even in the face of contradictory evidence. Instead, we as humans pay greater attention to information that backs up our initial preconceived ideas and opinions. Taken together, Dr. El-Alayli stated that in her expert opinion the best way to ensure Kohberger is tried by a fair and impartial jury is to find jurors who are both physically and psychologically removed from Latah County. 3. Dr. Bryan Edelman Dr. Bryan Edelman is a social psychologist who works as a trial consultant for jury selection and pre-trial research. In this case, the defense hired Dr. Edelman to conduct a survey of Latah County residents, Ada County residents, Canyon County residents, and Bannock County residents to determine if a change of venue motion was warranted. The key findings from the survey show that case recognition is high throughout Idaho. Ninety-eight percent of survey respondents in Latah County recognized the case, 93% of survey respondents in Ada County recognized the case, 90% of survey respondents in Canyon County recognized the case, and 84% of survey respondents in Bannock County recognized the case. In Latah County, of the 98% of respondents that recognized the case, 67% reported they believe Kohberger is guilty (24.7% reported they believe Kohberger is " definitely guilty "). Similarly, in Ada County 68% of respondents who recognized the case believe Kohberger is guilty (22% reported believing Kohberger is " definitely guilty "), 69% of respondents in Canyon County believe Kohberger is guilty (23% reported Kohberger is “ definitely guilty "), and 76% of respondents in Bannock County believe Kohberger is guilty (19% reported Kohberger is “ definitely guilty "). ORDER GRANTING DEFENDANT'S MOTION TO CHANGE VENUE-7 In Latah County, 51% of respondents reported Kohberger would have a difficult time convincing them he is not guilty. The percentage of respondents who reported that Kohberger would have a difficult time convincing them he is not guilty was actually higher in all the other counties surveyed: 56% in Ada County, 57% in Canyon County, and 53% in Bannock County. In Latah County, 51.5% of respondents who recognized the case felt that the death penalty was the appropriate punishment, and 23.5% felt that life without parole would be appropriate. In Ada County, 49% reported they believed death was the appropriate sentence, 57% of respondents in Canyon County reported they believed death was the appropriate sentence, and 53% in Bannock County reported they believed death was the appropriate sentence. In Latah County, 29% of survey respondents reported following the case " very closely " and 38.5% reported following the case " somewhat closely. " In Ada County, 58% of respondents reported following the case " very closely ” or “ somewhat closely, " while that number fell to 51% in Canyon County and 46% in Bannock County. Thirty-nine percent of survey respondents in Latah County indicated they experienced higher levels of stress, anxiety, or fear during the search for the person responsible for the killings. This contrasts with the 17% of Ada County respondents who answered yes to the question, 11% of Canyon County respondents who answered yes, and 11% of Bannock County respondents who answered yes. Additionally, a higher number of Latah County residents reported talking about the case with others, living in Moscow when the homicides occurred, having ties to the University of Idaho, and having ties to law enforcement who investigated the crimes. Finally, Dr. Edelman considered the population sizes of the counties surveyed with Ada County having 406,068 residents, Canyon County having 184,660 residents, Bannock County having 66,911 residents, and Latah County having 32,515 residents. ORDER GRANTING DEFENDANT'S MOTION TO CHANGE VENUE-8 Based on all the information obtained from the surveys, Dr. Edleman opined that case recognition and presumption of guilt is and will continue to be high throughout Idaho given the extensive media coverage the case has generated. In his opinion, population size matters. For example, if roughly 50% of Latah County residents presume Kohberger is guilty, that leaves approximately 15,000 Latah County residents who do not hold this presumption. Of those, not all are eligible to serve as a juror. In contrast, if 50% of Ada County residents presume Kohberger is guilty, that leaves over 200,000 residents who do not hold such a presumption. Thus, Ada County has a much larger pool of nonbiased potential jurors. Even more important to Dr. Edelman though was the issue of personal connections within Latah County, and the personal impact this case has had on Latah County residents. The feelings of fear, stress, and anxiety surrounding the homicides were significantly greater in Latah County than in the other counties. This was also true for the connections to the University of Idaho and local law enforcement. Dr. Edelman testified that these connections and experiences are the real issue when it comes to seating an impartial jury in Latah County. Based on the results of his surveys, Dr. Edelman opined that in his expert opinion there is a reasonable likelihood the presumption of guilt prevails in Latah County and that a change of venue is appropriate. 4. Dr. Veronica Dahir Dr. Veronica Dahir was called by the defense to offer her expert opinion as to the validity of the survey work done by Dr. Edelman in this case. Dr. Dahir testified that the surveys were conducted in accordance with applicable standards and the results are sound. ORDER GRANTING DEFENDANT'S MOTION TO CHANGE VENUE-9 5. Media Articles and Video Clips The defense also submitted numerous media articles and video clips demonstrating the sheer volume of coverage this case has generated. The Court agrees, and the State does not dispute, that coverage of this case by both mainstream media and social media outlets has been extensive in Latah County, throughout Idaho, and nationally. While some of the mainstream reporting has been appropriate and based on information from the Court record, there has been extensive coverage that is prejudicial to Kohberger and likely inadmissible at trial. IV. STANDARD Both the Idaho Constitution and the United States Constitution protect a defendant's right to a fair trial by an impartial jury. To help achieve a constitutionally sound trial, Idaho Criminal Rule 21 allows transfer of a case for trial in certain instances. Idaho Criminal Rule 21 (a) states that " [o] n motion of either party, the court must transfer the proceeding to another county if the court is satisfied that a fair and impartial trial cannot be had in the county where the case is pending. " Similarly, Idaho Code § 19-1801 states that " [a] criminal action, prosecuted by indictment, may be removed from the court in which it is pending, on the application of the defendant, on the ground that a fair and impartial trial cannot be had in the county where the indictment is pending. " Idaho Criminal Rule 21 also allows a transfer for convenience. " On motion of the defendant, the court may transfer the proceeding to another county, for the convenience of parties and witnesses, and in the interest of justice. " I.C.R. 21 (b). A motion for change of venue pursuant to Idaho Criminal Rule 21 is left to the discretion of the trial court. State v. Hadden, 152 Idaho 371, 376, 271 P.3d 1227, 1232 (2012); State v. Ish, 551 P.3d 746, 762 (Idaho 2024). ORDER GRANTING DEFENDANT'S MOTION TO CHANGE VENUE-10 V. ANALYSIS 1. Prejudice In deciding a motion for change of venue, “ the Court determines whether, in the totality of the circumstances, juror exposure to pretrial publicity [will result] in a trial that [is] not fundamentally fair. " Ish, 551 P.3d at 762. " The critical inquiry is whether the nature of their exposure to pretrial publicity caused the prospective juror to form an opinion about the defendant's guilt and, as a result, they are unable to serve as an unbiased juror. " Id. In determining whether a criminal defendant actually received a fair trial, the Idaho