Court Filing
CASE NO CR 2422-2805
2023 July 25 6:04 Anne C. Taylor, Public Defender CLERK OF DISTRICT COURT p.m.
Kootenai County Public Defender LATAH COUNTY PO Box 9000 BY Coeur d'Alene, Idaho 83816 DEPUTY
Phone: (208) 446-1700; Fax: (208) 446-1701
Bar Number: 5836 iCourt Email: pdfax@kcgov.us Elisa G. Massoth, PLLC Attorney at Law P.O. Box 1003 Payette, ID 83661 208-642-3797 Assigned Attorney:
Anne C. Taylor, Public Defender, Bar Number: 5836 Jay Weston Logsdon, Chief Deputy Litigation, Bar Number: 8759 Elisa G. Massoth, 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 CR29-22-0002805
Plaintiff,
MOTION TO DISMISS INDICTMENT
V. ON GROUNDS OF ERROR IN GRAND
JURY INSTRUCTIONS OR IN THE
BRYAN C. KOHBERGER, ALTERNATIVE REMAND FOR
PRELIMINARY HEARING
Defendant.
COMES NOW, Bryan C. Kohberger, by and through their attorney, Jay Weston Logsdon, Chief Deputy Litigation, and hereby moves this honorable Court for an Order either dismissing the Indictment in this matter or to treat it as a Presentment and remand for a preliminary hearing before a magistrate. This Motion is made on the grounds that the Grand Jury was misled as to the standard of proof required for an indictment.
MOTION TO DISMISS INDICTMENT ON GROUNDS OF ERROR IN
GRANDJURY INSTRUCTIONS OR IN THE ALTERNATIVE REMAND
FOR PRELIMINARY HEARING Page 1
ISSUES
I. The Idaho Constitution Art. I Sec. 8 and I.C. § 19-1107 set the standard of proof for a Grand Jury at beyond a reasonable doubt based on the plain language of the statute.
a. The legislative history of I.C. § 19-1107 also supports a beyond a reasonable doubt standard.
b. The Idaho Supreme Court cannot adjust the standard of proof as it is a substantive right.
II. The failure to properly instruct a Grand Jury as to the standard of proof is grounds for dismissal of the Indictment.
a. The Grand Jury was erroneously instructed with the standard required for a Presentment, thus this Court could treat the Indictment as a Presentment.
ARGUMENT
I. The Idaho Constitution Art. I Sec. 8 and I.C. § 19-1107 set the standard of proof for a Grand Jury at beyond a reasonable doubt.
Pursuant to I.C. § 19-1107:
The grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury.
This statute was in existence at the time the Idaho Constitution was adopted. Idaho Rev.
Stat. (R.S.) § 7636 (1887), previously Criminal Practice $ 208 (1864). " When construing the Idaho Constitution, ' the primary object is to determine the intent of the framers. " " State v. Clarke, 165 Idaho 393, 397 (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 (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... ")
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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 (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. SS 19- 4401, 4406, 4407), " predate the Constitution of the State of Idaho. " Id., at 869. 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.
In State v. Rauch, 99 Idaho 586 (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. The Rauch Court was able to trace this deeply rooted heritage all the way back to 1603.
Thus, whatever this language means, it must color this Court's interpretation of Art. I Sec. 8.
That section states:
No person shall be held to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury or on information of the public prosecutor, after a commitment by a magistrate, except in cases of impeachment, in cases cognizable by probate courts or by justices of the peace, and in cases arising in the militia when in actual service in time of war or public danger; provided, that a grand jury may be summoned upon the order of the district court in the manner provided by law, and provided further, that after a charge has been ignored by a grand jury, no person shall be held to answer, or for trial therefor, upon information of public prosecutor.
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If it were not clear from the text of Art. I Sec. 8, the Framers general intent behind the section was to ensure that either a grand jury or magistrate stood between the prosecutor and the accused. See, PROCEEDINGS AND DEBATES OF THE CONSTITUTIONAL CONVENTION OF IDAHO 1889, vol. I, 260-79 (I.W. Hart ed., 1912) (hereinafter " PROCEEDINGS AND DEBATES "). Thus, it stands to reason that the standard of proof in effect at the time of the adoption of the section was incorporated into it. It would be rather ineffective to create a buffer between the government and citizens that the government could change willy-nilly.
However, that does not provide much information as to what standard " would warrant a conviction by a trial jury " actually means.
The interpretation of a statute " must begin with the literal words of the statute; those words must be given their plain, usual, and ordinary meaning; and the statute must be construed as a whole. If the statute is not ambiguous, this Court does not construe it, but simply follows the law as written. " State v. Schwartz, 139 Idaho 360, 362, 79 P.3d 719, 721 (2003) (citations omitted). " We have consistently held that where statutory language is unambiguous, legislative history and other extrinsic evidence should not be consulted for the purpose of altering the clearly expressed intent of the legislature. " City of Sun Valley v. Sun Valley Co., 123 Idaho 665, 667, 851 P.2d 961, 963 (1993).
Verska v. St. Alphonus Regional Medical Center, 151 Idaho 889, 893 (2011). The plain text of the I.C. S 19-1107 sets a standard of proof that would " warrant " a conviction at trial. The justification for a conviction at trial is and was proof " beyond a reasonable doubt. " I.C. § 19-2104 (2022); Idaho Rev.
Stat. (R.S.) § 7858 (1887).
If that were not enough, I.C. § 19-1107 is one of many laws that were adopted in 1863-64 copied verbatim from laws adopted in 1851 in the state of California. See State v. Edmonson, 113 Idaho 230, 244, 259 (1987) (BISTLINE, J., dissenting). The Idaho Supreme Court has held:
This court has consistently held that " [a] statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction. "
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Odenwalt v. Zaring, 102 Idaho 1, 5 (1981) (citing Nixon v. Triber, 100 Idaho 198, 200 (1979); State v.
Miles, 97 Idaho 396 (1976); Doggett v. Electronics Corp. of America, 93 Idaho 26 (1969)). In People v.
Tinder & Smith, 19 Cal. 539, 541 (1862), the defendants were indicted for murder and arrested. They applied for bail, but were denied. Id. On a habeas petition challenging the denial of bail, the California court took time to discuss the legal standard required for the finding of an indictment.
Id., at 543. The court found:
Formerly an indictment was regarded as a mere accusation, which the grand jury ought to find if probable evidence were adduced in its support. " But great authorities, " says Chitty, " have taken a more merciful view of the subject, and considering the ignominy, the dangers of perjury, the anxiety of delay, and the misery of a prison, have argued that the grand inquest ought, as far as the evidence before them goes, to be convinced of the guilt of the defendant. What was, therefore, anciently said respecting petit treason, may be applied to all other offenses, that since it is preferred in the absence of the prisoner, it ought to be supported by substantial testimonies. " (1 Crim. Law, 318. [1826]) The more merciful view of the subject thus referred to is secured by statute in this State. Our Criminal Practice Act declares that the grand jury " shall receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence, " (Sec. 210) and though not bound to hear evidence for the defendant, " that it is their duty to weight all the evidence submitted to them, and when they have reason to believe that other evidence within their reach will explain away the charge, they should order such evidence to be produced, " (Sec. 211) and that they " ought to find an indictment when all the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury, " (Sec. 212) and of course ought not to find an indictment when the evidence taken together, if unexplained or un-contradicted, would not warrant such conviction. The indictment is then something more than a mere accusation based upon probable cause; it is an accusation based upon legal testimony, of a direct and positive character, and is the concurring judgment of at least twelve of the grand jurors, selected to inquire into all public offenses committed or triable within their county, that upon the evidence presented to them the defendant is guilty.
Id. (footnote omitted). Thus, the only case on point from the time this statute was adopted clearly states that the standard for finding an indictment is higher than the probable cause standard. In addition, other jurisdictions and legal treatises have recognized that the plain language amounts to more than probable cause. See, Bache Halsey Stuart Shields, Inc. v. Tracy Collins Bank & Trust Co., 558
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F.Supp. 1042 (D. Utah 1983); State v. Lawler, 221 Wis. 423, 267 N.W. 65 (Wis. 1936); Y. Kamisar, W.
LaFave, & J. Israel, MODERN CRIMINAL PROCEDURE, 1025-26 n.9 (5th ed. 1980).
The Defense does not, by all this, intend to bury the lede, but merely show that under the usual approach to statutory interpretation, there is no reasonable doubt as to what a grand jury should be instructed. That said the Defense recognizes that the whole of modern jurisprudence on this issue is against it, as well as at least one founding father of this state.
a. The legislative history of I.C. § 19-1107 also supports a beyond a reasonable doubt standard.
The history of this formulation shows that the abandonment of the standard and the retreat to common law probable cause has no basis in law. To begin, the formulation first appears in 1850 in THE CODE OF CRIMINAL PROCEDURE OF THE STATE OF NEW-YORK. This is best known as the NEW YORK FIELD CODE OF CRIMINAL PROCEDURE (hereinafter " FIELD CODE ") (available at https://www.google.com/books/edition/New_York_Field_Codes_1850_1865/skTQc3ktyI0C?hl= en & gbpv = 0). The Idaho Supreme Court and the United States Supreme Court have acknowledge this state has retained language from the FIELD CODE in its procedural statutes. See, Gannett Co., Inc.
v. DePasquale, 443 U.S. 368, 390 n. 23 (1979); Cowles Pub. Co. v. Magistrate Court of the First Dist. of State, County of Kootenai, 118 Idaho 753, 757 (1990).
To understand why the FIELD CODE broke with the common law, it helps to have some knowledge of the history of grand juries and the considerable concern about them occurring in the latter half of the 19th century. In England, the original criminal proceedings circa 978 began with a group of twelve that went on to evolve into the Grand Jury. George Edwards, THE GRAND JURY
CONSIDERED FROM A HISTORICAL, POLITICAL AND LEGAL STANDPOINT, AND THE LAW AND
PRACTICE RELATING THERETO, 2-6 (1906) (hereinafter " GRAND JURY "). The alternative arrived with the Norman Conquest, in which the accuser could raise the Hue and Cry and, if successful,
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force the accused to choose between a guilty plea or trial by combat. Id. at 6, 12-13. The Assize of Clarendon established for the first time in English history the ability to break the law and be prosecuted by the government in 1166. Id. at 7. Even then, for a prosecution raised in court, the twelve had to agree they suspected the accused. Id. The Grand Jury as a shield against a government run amok first came about in 1681 in the cases of Stephen Colledge and the Earl of Shaftesbury for high treason. Brent Tomer, Ring Around the Grand Jury: Informing Jurors of the Capital Consequences of Aggravating Factors, 17 CAP. DEF. J. 61, 65 (2004); see also John Langbein, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL, 45 (2003) (" For the years 1660-1800 Beattie found that the Surrey grand juries dismissed 11.5 percent of the bills of indictments for property offenses punishable by death and 17.3 percent of those brought for noncapital property offenses, 14.9 percent for murder, 27.4 percent for infanticide, 25.8 percent for wounding, 44.4 percent for rape. " [footnote omitted]).
At the time of this country's founding, colonialists had knowledge of this history and experience with the power of Grand Juries to prevent government abuses, as well as experience with what is known as a preliminary hearing. More importantly, the colonies had experience with something that never took hold in England: local public prosecutors. See, Joan E. Jacoby, The American Prosecutor in Historical Context, THE PROSECUTOR (1997) (available at http: //www.mcaamn.org/docs/2005/American ProsecutorHistoricalContext52705.pdf). While the development of the magistrate's power to dismiss felonies after a preliminary hearing in England is mostly lost, in America, a number of historical writings shed light on what was known to those that adopted the Constitution.
There are, however, a few known exceptions to English procedure. In Massachusetts the examination procedures seem to have permitted witnesses to be questioned in the presence of the accused. The early New Haven colony departed further from the English model than most colonies. Here the justice, or more often the justices, were formally permitted to dismiss charges when they became convinced of the accused's innocence. In Virginia County, courts initially appear to have examined arrested suspects to determine whether the accused should be tried before the general court.
In 1705, a new institution, the examining court, was introduced. After a preliminary
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hearing before a justice of the peace, the case was sent to a special examining court where the accused was again questioned by several justices of the peace. Here the accused was entitled to require the sheriff to summon witnesses on his behalf. Either the accused was released or the case went to the grand jury and eventually to a trial jury. Starke's handbook indicated that this new institution enlarged the means of " coming at the Truth of a supposed Fact " and gave the accused " a third opportunity of Acquittal. " Such protections, designed for the " Liberty and Quiet of the Subject, " were " not to be boasted in any other Part of the British Dominions. " Barbara J. Shapiro, BEYOND REASONABLE DOUBT AND PROBABLE CAUSE (1991) (available at http://publishing.cdlib.org/ucpressebooks/view?docId=ft409nb30v;brand=ucpress) (citing Joseph H. Smith, COLONIAL JUSTICE IN WESTERN MASSACHUSETTS, 1639-1672, 145 (1961); William Nelson, AMERICANIZATION OF THE COMMON LAW, 106-107 (1975); Gail Marcus, Due Execution of the Generall Rules of Righteousnesse ': Criminal Proceedings in New Haven Town and Colony, 1638-1658, in
SAINTS AND REVOLUTIONARIES: ESSAYS IN AMERICAN HISTORY, 103, 108 (David Hall ed., 1984);
Kathryn Preyer, Penal Measures in the American Colonies: An Overview, AMERICAN JOURNAL OF LEGAL HISTORY 28, 330 (1982); Hugh F. Rankin, CRIMINAL TRIAL PROCEEDINGS, 78-79 (1965); Richard Starke, OFFICE AND AUTHORITY OF THE JUSTICE OF THE PEACE, 114-115 (1774)).
In spite of their experience with the discretion of the public prosecutor and the protections afforded by preliminary hearings, it was the Grand Jury that the colonists looked to for protection from government abuse. For example, a Grand Jury refused to indict Peter Zenger for seditious libel against the Royal Governor of New York. Roger Fairfax, Grand Jury Discretion and Constitutional Design, 93 CORNELL L. REV. 703, 722 (2008). The royal government would later charge him by information. Robert D. Rucker, The Right to Ignore the Law: Constitutional Entitlement Versus Judicial Interpretation, 33 VAL. U. L. REV. 449, 452-53 (1999). After 1776 every state except New Jersey provided a right to a Grand Jury in its Constitution, and every state adopted a statute securing the right. Tomer, 17 CAP. DEF. J. at 67. Thus it is not unsurprising that James Madison included the Grand Jury Clause in the Fifth Amendment, nor is it surprising that the Amendment met no opposition. Akhil Amar, The Bill of Rights as a Constitution, 100 YALE L. J. 1131, 1184-85 (1991);
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Tomer, 17 CAP. DEF. J. at 67. In fact, the amendment was so popular that Hamilton devoted a Federalist Paper to arguing against it citing essentially the same reason- the need for growth in the law- that the Supreme Court much later found convincing in Hurtado v. California, 110 U.S. 516 (1884). THE FEDERALIST NO. 83 (Alexander Hamilton). The Clause prevented the federal government from making an end-run around the Grand Jury when seeking a criminal charge.
But all was not well with grand juries by 1850. Jeremy Bentham strongly argued in Britain that the entire jury system should be abolished. Jeremy Bentham, 1 RATIONALE OF JUDICIAL EVIDENCE 524 (1827); Jeremy Bentham, 2 THE WORKS OF JEREMY BENTHAM 139-40 (John Bowring ed., 1843). American jurists and lawyers were becoming all too aware that grand juries would indict whatever they were told or wanted to indict. Thus, it is unsurprising that the Field Commission wrote in their Code:
In approaching the subject of the powers and duties of the grand jury, the Commissioners have felt much embarrassment, and have, therefore, devoted to it, the patient and laborious consideration which it demanded. The value of this institution is at the present day variously regarded. By some, it is deemed of the highest