Court Filing
Filed: 06/23/2023 16:22:37 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 LATАН
) STATE OF IDAHO,) Case No. CR29-22-2805 ( Plaintiff,)
) ORDER DENYING SHANON
VS.) GRAY'S REQUEST TO BE
) EXEMPT FROM THE AMENDED
BRYAN C. KOHBERGER,) NONDISSEMINATION ORDER
) AND GRANTING REQUEST THAT
Defendant.) THE ORDER BE CLARIFIED
I. INTRODUCTION
This Order addresses the Motion to Appeal, Amend and / or Clarify Amended Nondissemination Order filed by Shanon Gray (" Gray "), attorney for the Goncalves family. At the outset, the Court would like to make clear that the Amended Nondissemination Order does not restrict the Goncalves family from speaking about the case to the media or anyone else. Instead, the Order restricts attorneys for the parties, attorneys representing victims ' families, and attorneys representing witnesses from speaking about the case. Gray's motion asks this Court to exempt him from any regulation on his ability to speak to the media and the public, or at least to clarify the Amended Nondissemination Order.
In deciding the motion, the Court must balance Gray's First Amendment rights against Defendant Bryan C. Kohberger's (" Kohberger ") right to a fair trial by an impartial jury as guaranteed by the Sixth Amendment. " Few, if any, interests under the Constitution are more
ORDER DENYING SHANON GRAY'S REQUEST
TO BE EXEMPT FROM THE AMENDED
NONDISSEMINATION ORDER AND
GRANTING REQUEST THAT THE ORDER BE CLARIFIED-1
fundamental than the right to a fair trial by ' impartial ' jurors, and an outcome affected by extrajudicial statements would violate that fundamental right. " Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075, 111 S. Ct. 2720, 2745, 115 L. Ed. 2d 888 (1991). Because " [m] embership in the bar is a privilege burdened with conditions, " id. at 1066, 111 S. Ct. at 2740, the U.S. Supreme Court has recognized that " the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press. " Id. at 1076, 111 S. Ct. at 2744. " As officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice. " Id. at 1074, 111 S. Ct. at 2744.
Gray's request to be exempted from the Amended Nondissemination Order is denied.
However, this Court will issue a Revised Amended Nondissemination Order that clarifies what cannot be discussed and what may be discussed. The Revised Amended Nondissemination Order is (1) limited to apply only to speech that is substantially likely to have a materially prejudicial effect on the right to a fair trial; (2) it applies equally to all attorneys participating in the case; (3) it is neutral as to points of view; and (4) it limits Gray's restricted comments only until after the trial and any sentencing proceedings that may take place. The regulation on Gray's speech is narrowly tailored to balance the competing interests of the First Amendment and the Sixth Amendment.
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
ORDER DENYING SHANON GRAY'S REQUEST
TO BE EXEMPT FROM THE AMENDED
NONDISSEMINATION ORDER AND
GRANTING REQUEST THAT THE ORDER BE CLARIFIED-2
law enforcement investigated, news stations, newspapers, and social media were flooded with stories and speculation about the homicides and law enforcement's investigative efforts and abilities. 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.
As represented by Gray during the hearing held on June 9, 2023, the Goncalves family retained him to represent them around December 5, 2022. During the hearing, Gray did not dispute representations made that he himself, as well as members of the Goncalves family, had participated in several interviews with the media which, as Gray described, were " critical " of the homicide 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.
The same day that Kohberger was charged, his attorney filed a Motion for Nondissemination Order asking the magistrate judge to enter an order " barring parties, their attorneys, investigators, law enforcement personnel, and potential witnesses from discussing [the case] with any public communications media. " Thereafter, on January 3, 2023, the defense and the State filed a Stipulation for Nondissemination Order “ prohibiting attorneys, investigators, and law enforcement personnel from making any extrajudicial statement, written or oral, concerning this case, other than a quotation from or reference to, without comment, the public records of the Court in this case. " The same day, the magistrate judge entered a Nondissemination Order prohibiting " the
ORDER DENYING SHANON GRAY'S REQUEST
TO BE EXEMPT FROM THE AMENDED
NONDISSEMINATION ORDER AND
GRANTING REQUEST THAT THE ORDER BE CLARIFIED-3
parties to the [case], including investigators, law enforcement personnel, attorneys, and agents of the prosecuting attorney or defense attorney, from making extrajudicial statements, written or oral, concerning this case, other than a quotation from or reference to, without comment, the public records of the case. " On January 13, 2023, the magistrate judge held an in-chambers, off-the-record conference with Latah County Prosecuting Attorney William W. Thompson, Jr., Senior Deputy Prosecutor Ashley S. Jennings, defense counsel Anne C. Taylor, attorneys for two witnesses in the case, and Gray. A summary of the meeting, as prepared by the parties in the case, was filed with the Idaho Supreme Court on March 3, 2023, as part of the Declaration of Deborah A. Ferguson in In re Petition for Writ of Mandamus or Writ of Prohibition, No. 50482, 2023 WL 3050829 (Idaho Apr.
24, 2023). The purpose of the conference was to address the applicability of the Nondissemination Order to the attorneys both present as parties to the case and the attorneys participating in the case.
The magistrate judge reminded the attorneys that this case is a high-profile case with both national and international media coverage, and that they each have a duty under the Idaho Rules of Professional Conduct to not interfere with the parties ' right to a fair trial. The magistrate advised the attorneys that it was not their job to disseminate information to the media. The magistrate judge stated that the Nondissemination Order did not restrict the attorneys ' nonparty clients, including the Goncalves family, from speaking to the media, but reiterated the importance of the case being tried in a court of law and not the media and encouraged each attorney to advise their clients accordingly to preserve the right to a fair trial by an impartial jury.
ORDER DENYING SHANON GRAY'S REQUEST
TO BE EXEMPT FROM THE AMENDED
NONDISSEMINATION ORDER AND
GRANTING REQUEST THAT THE ORDER BE CLARIFIED-4
On January 18, 2023, the magistrate judge, based on the stipulation of the parties¹, entered the Amended Nondissemination Order to balance Kohberger's right to a fair trial and the " right to free expression as afforded under both the United States and Idaho Constitution. " The magistrate noted that " [t] o preserve the right to a fair trial some curtailment of the dissemination of information in this case is necessary and authorized under the law. " The Amended Nondissemination Order reads:
IT IS HEREBY ORDERED:
1. The attorneys for any interested party in this case, including the prosecuting attorney, defense attorney, and any attorney representing a witness, victim, or victim's family, as well as the parties to the above entitled action, including but not limited to investigators, law enforcement personal, and agents for the prosecuting attorney or defense attorney, are prohibited from making extrajudicial statements (written or oral) concerning this case, except, without additional comment, a quotation from or reference to the official public record of the case.
2. This order specifically prohibits any statement, which a reasonable person would expect to be disseminated by means of public communication that relates to the following:
a. Evidence regarding the occurrences or transactions involved in this case;
b. The character, credibility, reputation, or criminal records of a party, victim, or witness, or the identity of a witness, or the expected testimony of a party, victim, or witness;
c. The performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test;
d. Any opinion as to the merits of the case or the claims or defense of a party;
e. Any information a lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial;
f. Any information reasonably likely to interfere with a fair trial in this case afforded under the United States and the Idaho Constitution, such as the existence or contents of any confession, admission, or statement given by the Defendant, the possibility of a plea of guilt, or any opinion as to the Defendant's guilt or innocence.
1 There is no dispute that the Goncalves family is not a party to this case. Nor is the family's attorney.
The term " parties " is a precise legal term used to describe the State and the Defendant, Bryan Kohberger.
There are no other parties to this case.
ORDER DENYING SHANON GRAY'S REQUEST
TO BE EXEMPT FROM THE AMENDED
NONDISSEMINATION ORDER AND
GRANTING REQUEST THAT THE ORDER BE CLARIFIED-5
On February 3, 2023, Gray filed a Notice of Appearance stating that he " represent [s] the Goncalves Family and [himself] in all pleadings, motions, notices [.] " That same day, Gray filed a Motion to Appeal, Amend and / or Clarify Amended Nondissemination Order along with a Memorandum in Support of Motion.
On February 6, 2023, the Associated Press, et al. (" Associated Press " is used to refer to the roughly 27 media entities that were involved in litigation before the Idaho Supreme Court involving the Amended Nondissemination Order in this case, as well as the 20 media entities that are now involved in litigation before this Court to vacate the Amended Nondissemination Order) filed a Petition for Writ of Mandamus or a Writ of Prohibition with the Idaho Supreme Court related to the Amended Nondissemination Order.
On February 8, 2023, the State filed a Memorandum of Points and Authorities Relating to Nondissemination Order and the Affidavit of Latah County Prosecutor William W. Thompson, Jr., stating that " members of the Goncalves family, who are represented by Mr. Shanon Gray, are potential witnesses in this case, including at trial and / or sentencing. " On February 9, 2023, Kohberger filed an Objection to Motion to Appeal, Amend and / or Clarify Nondissemination Order.
On February 26, 2023, the magistrate issued a Notice Regarding Hearing Date on Motion to Appeal, Amend, and / or Clarify Amended Nondissemination Order informing the Goncalveses that their motion would be set for hearing after the Idaho Supreme Court issued a decision on the Associated Press's Petition.
On April 24, 2023, the Idaho Supreme Court issued an opinion dismissing the Associated Press's Petition, finding that although the media did have standing to challenge the Amended Nondissemination Order, they must first present their petition to the trial court. The magistrate then
ORDER DENYING SHANON GRAY'S REQUEST
TO BE EXEMPT FROM THE AMENDED
NONDISSEMINATION ORDER AND
GRANTING REQUEST THAT THE ORDER BE CLARIFIED-6
set a hearing on the Goncalves ' motion for May 25, 2023. Thereafter, on May 2, 2023, the Associated Press filed a Motion to Intervene and a Motion to Vacate the Amended Nondissemination Order. Because of the Associated Press's filings, the magistrate vacated the hearing on the Goncalves ' motion set for May 25, 2023, and set a scheduling conference for May 22, 2023.
On May 16, 2023, an Indictment was filed against Kohberger, and this Court began presiding over the case. On May 22, 2023, after Kohberger's arraignment, this Court conducted a scheduling conference and set a briefing schedule and hearing for oral argument. Gray did not file any additional briefing in support of the Motion to Appeal, Amend and / or Clarify Amended Nondissemination Order. On June 6, 2023, the State filed a concurrence with Kohberger's February 9, 2023, filing.
Oral argument was heard on June 9, 2023. The State was represented by William W.
Thompson, Jr., and Bradley J. Rudley, Latah County Prosecutor's Office. Kohberger was represented by Anne C. Taylor and Jay W. Logsdon, Kootenai County Public Defender's Office.
The Goncalves family was represented by Gray.
During the hearing, representations were made to the Court that are important to note. First, Gray represented, both in briefing and during the hearing, that " the State... has [not] shared any information regarding the case " with himself or his clients, and that the State has not made any attempt to interview his clients. The State denied these allegations, calling them “ misrepresentations at best. " The State represented that it has shared information with the Goncalves family but must limit the information they share to protect the integrity of the investigation and the State's case. The State also represented that its investigators have attempted to interview members of the Goncalves
ORDER DENYING SHANON GRAY'S REQUEST
TO BE EXEMPT FROM THE AMENDED
NONDISSEMINATION ORDER AND
GRANTING REQUEST THAT THE ORDER BE CLARIFIED-7
family, but that Gray has not allowed the interviews to occur. Both the State and the defense concurred in their positions that Gray has repeatedly issued statements and participated in television interviews that the parties view as a violation of the Amended Nondissemination Order. Gray did not dispute that, despite the Amended Nondissemination Order, he has continued to speak to the media by way of statements and interviews because it is his belief that the Court does not have the authority to impose any regulations on his speech and that Rule 3.6 of the Idaho Rules of Professional Conduct does not apply to him in this case.
III. ISSUES PRESENTED
The Goncalves family's motion raises two distinct issues. First, does the Amended Nondissemination Order prohibit the Goncalves family from speaking to the media or the public about the case? The Amended Nondissemination Order does not apply to the Goncalves family.
Also, the Court's Revised Amended Nondissemination Order will not restrict the Goncalves family's speech. However, while the speech of the victims ' families is not and will not be restrained by court order, this case is indisputably high-profile and the law requires the case to be tried in a court of law and not in the press or the public. As the U.S. Supreme Court has stated, “ [i] t is not asking too much to suggest that those who exercise First Amendment rights in newspapers or broadcasting enterprises direct some effort to protect the rights of an accused to a fair trial by unbiased jurors. " Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 560, 96 S. Ct. 2791, 2803, 49 L. Ed.
2d 683 (1976). The same is true for those participating in a case and privy to confidential information.
The second issue raised in the Goncalves family's motion is whether the Court has the authority to restrict the speech of Gray, an attorney involved in, but not a party to, the case. Further,
ORDER DENYING SHANON GRAY'S REQUEST
TO BE EXEMPT FROM THE AMENDED
NONDISSEMINATION ORDER AND
GRANTING REQUEST THAT THE ORDER BE CLARIFIED-8
this motion argues that the Amended Nondissemination Order violates Gray's First Amendment right to free speech. In fact, the Amended Nondissemination Order does prohibit Gray, an attorney representing a victim's family members who are also potential witnesses, from speaking to the public and the media about the case. Gray argues that " [a] s attorney for one of the Victim's families, [he is] allowed to relay to the media any of the opinions, views, or statements of those family members regarding any part of the case. " Mem. in Supp. of Mot. for Appeal and / or Clarification of Amended Nondissemination Order at 4. Gray also argues that he himself is “ allowed to comment on the case and other issues surrounding the investigation pursuant to IRPC Rule 3.6. " Id. In Gray's view, the Court does not have the authority to restrict his First Amendment rights at all because he and his clients are not " parties " to the case.
This decision addresses (1) the obligation of the Court to ensure that Kohberger's right to a fair trial is not jeopardized by prejudicial extrajudicial statements; (2) the Court's authority to impose restrictions on the speech of attorneys and their agents involved in this case; and (3) the standard applied to reviewing a constitutional challenge by a lawyer whose speech has been restrained by a nondissemination order. Finally, this decision will apply the law and rules applicable to attorneys to the facts of this case in addressing Gray's argument that the Amended Nondissemination Order violates his First Amendment right to free speech.
IV. LAW
To begin, this Court must first address the status of the Goncalves family in this case. This Court agrees with Gray that the Goncalves family members are not parties to this case. However, as victims and potential witnesses their status separates them from the general citizenry.
ORDER DENYING SHANON GRAY'S REQUEST
TO BE EXEMPT FROM THE AMENDED
NONDISSEMINATION ORDER AND
GRANTING REQUEST THAT THE ORDER BE CLARIFIED-9
A crime " victim ” “ is an individual who suffers direct... emotional harm as the result of the commission of a crime. " I.C. § 19-5306. Crime victims, and specifically immediate families of homicide victims, are afforded both statutory and constitutional rights. I.C. § 19-5306; Article 1, § 22 of the Idaho Constitution. The Goncalves family, as well as the families of the other three victims, are undoubtedly victims in this case. As such, they are afforded rights that the public is not, including the rights to " communicate with the prosecution, " to " prior notification of trial court...
proceedings, " to " read presentence reports relating to the crime, " as well as other rights. Id. These rights put the victims ' families, and Gray as the attorney representing the Goncalves family, in a position to know details about the crime and the prosecution's case that the public has no right to know at this stage in the proceedings.
Additionally, while the Goncalves family members are victims, they are also potential witnesses in the case for both trial and sentencing. Again, this puts them in a unique position and sets them apart from the public.
In 1966, the U.S. Supreme Court recognized a defendant's right to " a trial by an impartial jury free from outside influences " in the face of " massive, pervasive and prejudicial publicity. " Sheppard v. Maxwell, 384