Court Filing
Electronically Filed 9/5/2024 2:48 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 LATAH STATE OF IDAHO CASE NUMBER CR29-22-2805 Plaintiff, MOTION TO STRIKE THE DEATH V. PENALTY ON GROUNDS OF STATE SPEEDY TRIAL PREVENTING BRYAN C. KOHBERGER, EFFECTIVE ASSISTANCE OF COUNSEL Defendant. COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby moves this honorable Court for an Order striking the State's Notice Pursuant to Idaho Code § 19- 4004A on the grounds that Idaho's statutory and constitutional guarantee to a speedy trial prevents effective assistance of counsel in death penalty cases. MOTION TO STRIKE THE DEATH PENALTY ON GROUNDS OF STATE SPEEDY TRIAL PREVENTING EFFECTIVE ASSISTANCE OF COUNSEL Page 1 ISSUES I. Idaho requires all criminal defendants to be brought to trial in six months from the arraignment on an Indictment pursuant to statute and its constitution. a. In Idaho the right to a speedy trial is defined by I.C. § 19-3501 as it was at the time of the adoption of the Constitution. i. The Idaho Constitution guarantees a speedy trial except where there is good cause for a delay or the request for postponement came from the defendant. ii. The Idaho Constitution requires a fixed amount of time constitute undue delay. This Court should adopt the six-month line adopted by our legislature. b. A defendant in Idaho can never request additional time without losing his right to a speedy trial. II. A capital case cannot be prepared in ten months. III. Idaho cannot force a defendant to choose between his rights. PROCEDURAL HISTORY On November 13, 2022, law enforcement found the bodies of Madison Mogen, Kaylee Gocalves, Xana Kernodle, and Ethan Chapin. On December 30, 2022, law enforcement arrested Mr. Kohberger at his parents ' home in Pennsylvania. Mr. Kohberger's current counsel filed for a limited appearance the same day. His first appearance in court in Idaho was January 5, 2023. On January 12, 2023, Mr. Kohberger filed a Notice of Appearance, Request for Timely Preliminary Hearing, Motion for Bail Reduction and Notice of Hearing, which contained a demand for speedy trial pursuant to Sixth and Fourteenth Amendments to the United States Constitution, Art. I Sections 7, 13 and 18 of the Idaho Constitution, and I.C. § 19-3501. MOTION TO STRIKE THE DEATH PENALTY ON GROUNDS OF STATE SPEEDY TRIAL PREVENTING EFFECTIVE ASSISTANCE OF COUNSEL Page 2 While Mr. Kohberger prepared for a preliminary hearing, the State convened a grand jury on May 12, and by May 16, 2023, it had an Indictment for Mr. Kohberger on four charges of murder in the first degree and a count of burglary. This Court arraigned Mr. Kohberger on May 22, 2023. On May 23, 2023, pursuant to Mr. Kohberger's right to a speedy trial, this Court set Mr. Kohberger's jury trial for October 2, 2023, a mere ten months from his arrest. On August 23, 2023, Mr. Kohberger waived his right to a speedy trial in order to secure his right to effective assistance of counsel. ARGUMENT I. Idaho requires all criminal defendants to be brought to trial in six months from the arraignment on an Indictment pursuant to statute and its constitution. Pursuant to Idaho Code § 19-3501 (2) & (5), a court must order the prosecution or indictment to be dismissed, unless good cause to the contrary is shown, if a defendant, whose trial has not been postponed upon his application, is not brought to trial within six months from the date that information is filed with the court. When a defendant who invokes their statutory speedy trial right is not brought to trial within six months and shows that the trial was not postponed at his request, the burden then shifts to the state to demonstrate good cause for the delay. State v. Rodriquez – Perez, 129 Idaho 29, 38, 921 P.2d 206, 215 (Ct.App.1996). Good cause means that there was a substantial reason for the delay that rises to the level of a legal excuse. State v. Clark, 135 Idaho 255, 260 (2000). Previously, there was not a fixed rule for determining good cause for the delay of a trial and the matter was left to the discretion of the trial court. State v. Johnson, 119 Idaho 56, 58 (Ct. App. 1990). The Idaho Supreme Court has held that “ a thorough analysis of the reasons for the delay represents the soundest method for determining what constitutes good cause " and that a Court may rely in part on the Barker factors. Clark, 135 Idaho at 260 (citing Barker v. Wingo, 407 U.S. 514 (1972)). MOTION TO STRIKE THE DEATH PENALTY ON GROUNDS OF STATE SPEEDY TRIAL PREVENTING EFFECTIVE ASSISTANCE OF COUNSEL Page 3 Article I Section 13 also protects a defendant's right to a speedy trial. As will be shown, the Idaho Supreme Court has wrongfully deviated from the right as it was defined by the framers. Additionally, one of the underpinnings of the right, what constitutes undue delay, has ceased to exist and must be reinterpreted in the context of the modern court system. a. In Idaho the right to a speedy trial is defined by I.C. 19-3501 as it was at the time of the adoption of the Constitution. “ When construing the Idaho Constitution, ‘ the primary object is to determine the intent of the framers. " State v. Clarke, 165 Idaho 393, 397, 446 P.3d 451, 455 (2019). “ Provisions of the Idaho Constitution must be construed in light of the law prior to their adoption. ” State v. Green, 158 Idaho 884, 887, 354 P.3d 446, 449 (2015). Even Idaho's Constitution reflects this view. Idaho Const. art. XXI, § 2 (“ All laws now in force in the territory of Idaho which are not repugnant to this Constitution shall remain in force... ") In Clarke, our Supreme Court found a statute in force at the time our Constitution was ratified to be controlling in its interpretation of Article I, § 17. Clarke, 165 Idaho 393. In State v. Matthews, 129 Idaho 865, 934 P.2d 931 (1997), our Court considered the issue of whether search warrants needed to be signed in order to be valid. The Court found that warrants do need to be signed, or else a search pursuant to such a warrant will violate Art. I § 17 of our Constitution. The Court arrived at this conclusion despite the fact that Art. I § 17 is completely silent regarding whether a warrant needs a signature. The reason the Court was able to find a constitutional violation in this case was by acknowledging that the statutes which require a signature (I.C. §§ 19-4401, 4406, 4407), “ predate the Constitution of the State of Idaho. " Id., at 869, 934 P.2d at 935. Because these statutes, which require a signature on warrants, predated the Idaho Constitution, they “ create a substantive right ” which “ existed prior to the adoption of this State's Constitution. ” Id. MOTION TO STRIKE THE DEATH PENALTY ON GROUNDS OF STATE SPEEDY TRIAL PREVENTING EFFECTIVE ASSISTANCE OF COUNSEL Page 4 In State v. Rauch, 99 Idaho 586, 586 P.2d 671 (1978), our Supreme Court found a defendant was entitled to constitutional relief for a violation of I.C. § 19-611 (knock and announce) after finding the rights contained in that statute were long standing at common law and “ deeply rooted in our heritage. ” Rauch, at 593, 586 P.2d at 678. The Rauch Court was able to trace this deeply rooted heritage all the way back to 1603. In this case, I.C. § 19-3501 must color this Court's interpretation of Art. I, § 13, because this statutory provision was in effect at the time of ratification. At the time of the adoption of our Constitution, the 1887 Territorial Criminal Practice Act provided: The Court, unless good cause to the contrary is shown, must order the prosecution of indictment to be dismissed, in the following cases: 2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial at the next term of the Court in which the indictment is triable, after it is found. R.S. 1887, § 8212. See Exhibit A. The right to a speedy trial was certainly well known to the framers of our Constitution. Section 8212 had been in place for nearly three years prior to the our Constitution's adoption. While the framers felt it unnecessary to lay out the amount of time for a speedy trial, the reliance on “ terms ” of the Court refers to R. S. 1887 § 3831 (Exhibit B), which reads as follows: Each term must be held until the business is disposed of, or until a day fixed for the commencement of some other term in the district court. This Court may require some explanation for what may seem a vague directive that terms, now only used by our Supreme Court, were to be held until there was nothing left to do or the judge needed to be elsewhere. In the days of the territories of our country, it was unnecessary to employ vast numbers of District Judges, as the cases appropriate for them (as defined in Idaho in 1887 by R.S. 1887, § 3830) were typically few. In the Idaho Territory: three judges handled all the work of the district courts and supreme court. Each of the three sat as a district judge, and they sat together as the supreme court. They exercised the jurisdiction of local or territorial courts and of federal courts. MOTION TO STRIKE THE DEATH PENALTY ON GROUNDS OF STATE SPEEDY TRIAL PREVENTING EFFECTIVE ASSISTANCE OF COUNSEL Page 5 Dennis C. Colson, Idaho's Constitution: The Tie that Binds, 205 (2003 Ed.). So, as a judge put in in Michigan in 1828: " Heretofore, & until recently, the Judges of this Territory were required to hold but one Term of the Court annually & that in Detroit. But as the country became more settled, new counties were organized; - and it has been deemed expedient to increase the number of terms, & places too, of holding Courts. - The Legislative Council of the Territory, under the sanction of an Act of Congress of the 29th Jan 1827, have, at its late session, directed court to be holden in each of the organized counties of the Peninsula- & giving very ample jurisdiction to them, have required that all or a majority of the Judges attend each term. - The consequence of this new organization is, that the Judges, collectively, have now to hold fifteen Courts annually, instead of one, & to traverse, mostly on horseback, an immense country, over roads not yet half formed &, some of which are exceedingly dangerous.- The principle of this system, is progressive; the number of courts to be holden, will continue to increase with the advancing settlement of the Country. " William Wirt Blume & Elizabeth Gaspar Brown, Territorial Courts and Law: Unifying Factors in the Development of American Legal Institutions: Part I. Establishment of a Standardized Judicial System 61 Mich. L. Rev. 1, 96 (Nov., 1962) (quoting Letter, Woodbridge to Strong, dated Nov. 28, 1828, Woodbridge Papers, Burton Historical Collection, Public Library, Detroit, Michigan.). Idaho judges were granted the right to set their own terms in 1873. Id. at 99; U.S. v. Kuntze, 2 Idaho 446, 21 P. 407, 408 (1889). In 1871, the Idaho Territorial Supreme Court found that it determined when these terms were to occur: The act of March 2, 1867, amendatory of the fifteenth section of the organic act of Idaho, provides, " that the judges of the supreme court of said territory, or a majority of them, shall, when assembled at the seat of government of said territory, define the judicial districts of said territory, and assign the judges who may be appointed for said territory to the several districts, and shall also fix the times and places for holding court in the several counties or subdivisions in each of said judicial districts, and alter the times and places of holding the courts, as to them shall seem proper and convenient. ” People v. Heed, 1 Idaho 402, 406-07 (1871). District Court terms could be extremely infrequent. See, Greathouse v. Heed, 1 Idaho 494, 498 (1873) (noting in some counties there may only be one term a year). It is also worth noting that the legislature set the terms for the probate courts, MOTION TO STRIKE THE DEATH PENALTY ON GROUNDS OF STATE SPEEDY TRIAL PREVENTING EFFECTIVE ASSISTANCE OF COUNSEL Page 6 which functioned much like the magistrate courts we have now. See, generally, id. The importance of terms was more than simply the timing of trials- until a term was adjourned, judgments were not considered final and could be revised. See, Moore v. Taylor, 1 Idaho 630, 635 (1876). When the Constitution was adopted, there was a lot of debate over whether to add additional judges. Colson, at 205-210. A vocal part of the delegation, led by William McConnell of Latah, argued that adding five additional judges to act solely as District Judges was too much expense. Id. at 206. When Weldon Heyburn of Shoshone and the judges argued that all courts were month and months behind, McConnell's faction argued it was the lawyers who were to blame. Id. at 207. In the end, it was the geography of our state that was to decide the issue. Id. at 209. The delegation overwhelmingly supported five new districts and judges. Id. They rejected thereby a compromise of four districts, placing two judges in north Idaho and two in the south as clearly unfair to the south, where some would have to travel 1200 miles to get to court. Id. The delegation clearly agreed with Judge Morgan, who said: “ It is ruinous, absolutely ruinous to men to have cases for trial in these courts " because the subject of litigation becomes worthless after such a long time or because they have great amounts of money invested. Id.at 207. The upshot was Art. V Section 11, which states: The state shall be divided into five judicial districts, for each of which a judge shall be chosen by the qualified electors thereof, whose term of office shall be four years. And there shall be held a district court in each county, at least twice in each year, to continue for such time in each county as may be prescribed by law. But the legislature may reduce or increase the number of districts, district judges and district attorneys. This section shall not be construed to prevent the holding of special terms under such regulations as may be provided by law. This Court should note that in the Constitution, though the District Judges were provided some leeway over when Court would be held in the various counties, it had to occur at least twice each year and each term would only conclude when the business was done, or the next term was to MOTION TO STRIKE THE DEATH PENALTY ON GROUNDS OF STATE SPEEDY TRIAL PREVENTING EFFECTIVE ASSISTANCE OF COUNSEL Page 7 begin. Additionally, the legislature had and has the power to require special terms, so whether or not court is held is not up to the judiciary. The right of Idaho citizens to speedy justice guaranteed by Art. I Section 18 of our Constitution is therefore not solely for the judiciary to define, any more than the right to a speedy trial for criminal defendants. i. The Idaho Constitution guarantees a speedy trial except where there is good cause for a delay or the request for postponement came from the defendant. Our state's speedy trial right must be as they were when the constitution was adopted. Not only is it clear from Clarke and other authorities that courts should first look to the understanding of the framers when considering the meaning of our constitutional rights, but even the Idaho Supreme Court had held that our constitutional right to a speedy trial was defined by I.C. § 19-3501 before the Barker test was adopted. Ellenwood v. Cramer, 75 Idaho 338, 343 (1954). It was not until State v. Lindsay, 96 Idaho 474, 475 (1975), that our Supreme Court held that Barker was an appropriate test for speedy trial under the Idaho Constitution. However- the Court held in Clark that the good cause test of I.C. §19-3501 was not an exact equivalent to the Barker test. 135 Idaho at 260. Therefore, this Court should hold that Lindsay and its progeny were wrongly decided, in that they did not properly consider Art. I Sec. 13 by starting from the understanding of our framers. ii. The Idaho Constitution requires a fixed amount of time constitute undue delay. This Court should adopt the six-month line adopted by our legislature. All that is left for discussion is what has become of the Idaho constitutional right and the statutory right pursuant to I.C. § 19-106 to a speedy trial after the legislature repealed terms of district courts in 1975. See, State v. Carter, 103 Idaho 917, 920 (1981). The Carter Court thought the question easily resolved by its earlier ruling to rely on the Barker test. See id. As argued in the preceding paragraph, however, the federal right to a speedy trial and the Idaho right MOTION TO STRIKE THE DEATH PENALTY ON GROUNDS OF STATE SPEEDY TRIAL PREVENTING EFFECTIVE ASSISTANCE OF COUNSEL Page 8 are not equivalent. Just as the Barker test does cannot replace the test for good cause, the Barker unreasonable delay test does not replace the next term of court test. This Court must decide what would be equivalent to the next term of court now that they no longer exist. In State v. Bennion, 112 Idaho 32 (1986), the Idaho Supreme Court took up a similar challenge when a defendant demanded a jury trial for an infraction under Art. I Sec. 7. As the Idaho Supreme Court found: This Court long and often has stated that Article 1, § 7 preserves the right to jury trial as it existed at the common law and under the territorial statutes when the Idaho Constitution was adopted. E.g., Burnham, supra, 35 Idaho at 526, 207 P. at 590; Christensen v. Hollingsworth, 6 Idaho 87, 93, 53 P. 211, 212 (1898). This standard of construction holds sway in the criminal as well as civil context. Dutton v. District Court, 95 Idaho 720, 723, 518 P.2d 1182, 1185 (1974) (involved criminal contempt); State v. Jutila, 34 Idaho 595, 597, 202 P. 566 (1921) (involved robbery). Most jurisdictions interpret their analogous constitutional provisions in an analogous way. E.g., People v. Collins, 17 Cal.3d 687, 131 Cal.Rptr. 782, 552 P.2d 742, 745 (1976); Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479, 485 (1966); see generally, 47 Am.Jur.2d Jury, §§ 7, 17. The standard embodies the common sense notion that, by employing the phrase “ shall remain inviolate, ” the Framers must have intended to perpetuate the right as it existed in 1890. Burnham, supra, 35 Idaho at 525–26, 207 P. at 590; Christensen, supra, 6 Idaho at 94, 53 P. at 212; accord, State v. Cousins, 97 Ariz. 105, 397 P.2d 217, 218 (1964); Town of Montclairv. Stanoyevich, 6 N.J. 479, 79 A.2d 288, 293 (1951). The standard should not be taken to extreme. The Framers did not intend to literally freeze the law precisely as it existed in 1890. To do so would yield the absurd result of affording no right to jury trial to those accused of crimes that happened not to be in statutory or common law existence at that arbitrary point in history. Bennion, 112 Idaho at 37. The Court then reviewed the history of the right to a jury trial in the common law of England, other jurisdictions, and in Idaho at the time of statehood. Id. at 38-41. The Court found: “ At the time of statehood, the territory of Idaho made two specific exceptions to an otherwise all-encompassing grant of the right to jury trial in criminal actions. ” Id. at 41. The C