Court Filing
Filed: 06/26/2025 13:58:53 Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court
By: Deputy Clerk-Waters, Renee
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, Ada County Case No. CR01-24-31665
V.
REDACTED MEMORANDUM
BRYAN C. KOHBERGER, DECISION AND ORDER ON
DEFENDANT'S MOTION TO
Defendant. CONTINUE
I. INTRODUCTION
Before the Court is Defendant's motion to continue the trial in this matter. The basis for the motion is three-fold. First, he asserts that the volume of discovery continues to pose a challenge to his counsel's ability to timely and meaningfully review all of it. Second, he asserts that there is penalty-phase investigation and preparation that still needs to be done. Third, he asserts that recent and forthcoming publicity on the case is highly prejudicial. Maintaining the current trial setting under these circumstances, he argues, will render any conviction and sentence unconstitutional. The State responds that Defendant's motion is untimely and he has failed to show either good cause for continuing the trial or prejudice that would result from maintaining the current trial setting.
Oral argument on the motion was held on June 18, 2025, after which the Court took the matter under advisement. The Court finds a continuance is not warranted as Defendant has not made a showing that there is good cause to continue the trial or that his substantial rights will be prejudiced by proceeding to trial as scheduled.¹
II. STANDARD
A motion for a continuance of trial is addressed to the sound discretion of the trial court.
State v. Ochoa, 169 Idaho 903, 912, 505 P.3d 689, 698 (2022). On discretionary matters, the trial ¹ Defendant filed some of his supporting materials ex-parte. While the Court is not convinced that much of his filing is necessary or appropriate to be treated as ex parte, the Court will nevertheless, in an abundance of caution, issue a redacted and unredacted version of this Order, with the State only receiving the redacted version, given that the Court is denying Defendant's motion.
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court must: 1) correctly perceive the issue as one of discretion; 2) act within the outer boundaries of its discretion; 3) act consistently with the legal standards applicable to the specific choice available to it, and; 4) reach its decision by the exercise of reason. " Lunneborg v. My Fun Life, 163 Idaho 856, 867, 421 P.3d 187, 198 (2018).
III. ANALYSIS
Under Idaho law, a criminal defendant seeking a continuance of trial must demonstrate that his or her " substantial rights " will be prejudiced absent a continuance. State v. Cagle, 126 Idaho 794, 797, 891 P.2d 1054, 1057 (Ct.App.1995) (" Unless an appellant shows that his or her substantial rights have been prejudiced by reason of a denial of his or her motion for continuance, appellate courts can only conclude that there was no abuse of discretion. ") " Trial judges necessarily require a great deal of latitude in scheduling trials. " Id. The burden of assembling the witnesses, lawyers, and jurors at the place and time for trial " counsels against continuances except for compelling reasons. " Id. " There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. " Matter of Doe I, 170 Idaho 581, 588, 514 P.3d 991, 998 (2022) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)).
Where a continuance is sought based on the late disclosure or discovery of evidence, the alleged tardiness of the discovery must be " shown to so prejudice the defendant's case preparation that a fair trial [will be] denied. " State v. Tapia, 127 Idaho 249, 255, 899 P.2d 959, 965 (1995). " [T] he bare claim that additional investigation could have been conducted is not sufficient to demonstrate unfair prejudice so as to support a motion for a continuance. " Id.
Additionally, where a continuance is sought for the " potential receipt of evidence " from further investigation, the motion is properly denied if based on speculation. Rowe v. Katavich, 2014 WL 4244336, at * 2 (C.D. Cal. Aug. 26, 2014) (citations omitted).
Defendant argues a continuance is necessary for him to sufficiently review relevant discovery, conduct a full and complete investigation of mitigation evidence-particularly claimed newly revealed evidence that allegedly raises " red flags " -and remedy the prejudice caused by recent and upcoming inflammatory publicity and the alleged leak of information to the media. Moving forward with trial, he warns, will violate his rights under the United States and 2
Idaho Constitutions² to due process, to be free from cruel and unusual punishment, to a fair trial, to effective assistance of counsel, to present a defense and confront witnesses and to a fair and reliable sentencing determination. Absent from Defendant's materials, however, is any good cause for the continuance or legitimate showing of prejudice should the trial proceed as scheduled.
A. Defendant Has Not Demonstrated a Continuance is Warranted to Review Discovery.
Defendant first contends that the vast amount of discovery in this case renders it impossible for the defense team to review the necessary and relevant discovery in a manner that allows for it to be comprehensively integrated into his defense. He further argues, without any support or explanation, that there are a " myriad of issues " that continue to arise from the State failing to comply with discovery and expert disclosure deadlines.³ A continuance, he argues, is necessary for counsel to mount an effective defense.
The Court, however, rejected this same argument two months ago when Defendant sought to strike the death penalty and impose discovery obligations upon the State. In its Order, the Court observed the utter lack of any proof supporting Defendant's accusations of discovery violations by the State. More importantly, the Court found Defendant's complaints of being unable to meaningfully review discovery entirely unconvincing, pointing out that counsel struggled to articulate in any meaningful way what evidence-let alone relevant evidencecounsel had been unable to review over the past two-plus years and why efforts to facilitate discovery review were not made long ago through this Court and / or the resource judge.5 2 Defendant specifically cites to the Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution and Article I, §§ 6, 7, 8 and 13 of the Idaho Constitution. Notably, Defendant does not argue that the Idaho Constitution provides any heightened protection than the U.S. Constitution with regard to the rights cited. Thus, the Court will not engage in a separate analysis under the Idaho Constitution.
3 Defendant continues to complain of the State's " discovery violations " but to be clear, this Court has found no such violations by the State.
4 See, Order on Defendant's Motion to Strike Death Penalty and Adopt Other Necessary Procedures (April 29, 2025).
5 Defendant's continual reference to the number of terabytes of discovery produced in this case is not helpful without providing a meaningful explanation of what that data primarily consists of and its particular relevance and importance. Indeed, as was discussed at the April 9, 2025, hearing in this case, it appears that most of those terabytes consists of extensive video surveillance from local businesses and residences that show nothing of significance. In fact, the State indicated at that hearing that much of that discovery is " completely irrelevant " and stipulated that it is unaware of any Brady material in the video surveillance footage other than that specifically identified in motion practice. Given that the State has identified all its trial exhibits, the Defense cannot be unaware 3
Defendant's second round of this argument fares no better. He again fails to identify any relevant discovery that his counsel has yet to review. He also fails to identify any steps his counsel has taken, particularly since the Court's prior order, to aid in processing the yetunreviewed discovery. Moreover, he does not explain why he waited to seek a continuance until after discovery closed, expert disclosure deadlines passed and the pretrial conference occurred.
If defense counsel was truly struggling with discovery review, this motion should have been made when the claimed problem became apparent, and certainly should have been brought prior to the expiration of discovery, all expert deadlines and the final pretrial conference. Instead, defense counsel has robustly litigated this case, retaining approximately two dozen experts and a full mitigation team, engaging in extensive motion practice and disclosing witness and exhibits lists with nary a whisper that a continuance would be sought. These actions belie his counsel's ongoing and ultimately empty-discovery complaints. Without more, the Court can only conclude that defense counsel is using the volume of discovery measured in terabytes as a tactic to delay the proceeding at the eleventh hour simply for the sake of delay rather than a legitimate threat of prejudice to Defendant's substantial rights.
Perhaps even more problematic, and more telling, is the utter failure of defense counsel now, or at any time, to specify not only what needs to be reviewed but, importantly, when that review would be complete and Defendant ready for trial. Instead, Defendant seeks an unbounded of all the incriminating evidence in the discovery. Finally, it should be noted that it was Defendant who, early on, demanded that the State provide all investigative materials, no matter how irrelevant or unhelpful.
6 The only discovery counsel claims that have not fully been reviewed are all of the thousands of tips provided to law enforcement. She argues these tips may lead to the discovery of evidence of an alternate perpetrator. The deadline for presenting alternate perpetrator evidence has come and gone, with no motion by the defense to extend it. Further, to offer alternate perpetrator evidence, Defendant needs far more than an unsubstantiated hearsay tip that another person could have committed the crime. State v. Meister, 148 Idaho 236, 220 P.3d 1055 (2009).
7 At the hearing on Defendant's motion to strike the death penalty based on his counsel's alleged inability to process discovery, the Court suggested several options counsel had to obtain assistance in discovery review. There is no evidence that defense counsel has exercised any of these options, nor has there been any good explanation of why counsel had not sought additional resources to process and review discovery, such as the tips and security videos.
The failure to do so suggests a recognition that this discovery was extremely unlikely to bear fruit.
8 Relevant here, too, is the fact that defense counsel did not argue for a continuance as an alternate remedy to Defendant's attempt to strike the death penalty because of counsel's alleged inability to get through the discovery.
This highlights that his claims regarding the volume of discovery were used as a tactical sword, untethered to a seriously legitimate concern about the ability to be prepared.
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continuance with no apparent plan to complete the review of unspecified evidence that counsel claims it has yet to review. This is not sufficient to warrant a continuance.
B. Defendant Has Not Established a Continuance is Necessary to Conduct A More Thorough " Life History " Investigation and Identify Necessary Experts.
Defendant next argues he needs additional time to investigate and prepare mitigation evidence, which he contends is necessary to uphold his constitutional rights, particularly those under the Eighth and Sixth Amendments. Specifically, the defense team claims that, to be effective, counsel must conduct an " exhaustive " and " comprehensive " dive into Defendant's " life history " for additional mitigation evidence, analyze the information into a cohesive narrative for the jury and identify any additional behavioral, cultural, scientific and / or mental health experts that may be necessary to develop the mitigation presentation. Despite having hired a mitigation team two years ago, defense counsel contends that recently discovered have raised " red flags " that Defendant may have According to Defendant's primary mitigation investigator, attorney her team of four have been diligent in their investigation into Defendant's life history, but there have been She believes that with time, she will be able to overcome these barriers by Ex-Parte Decl. p. 3 (May 20, 2025).
Defendant has not demonstrated a continuance to accommodate further investigation is constitutionally required. The Eighth Amendment requires that a capital defendant be allowed to present all relevant evidence in mitigation. State v. Payne, 146 Idaho 548, 570, 199 P.3d 123, 145 (2008); see also, Eddings v. Oklahoma, 455 U.S. 104 (1982) (jury must be allowed to consider all of a capital defendant's mitigating character evidence). In addition, a capital defendant has a Sixth Amendment right to a fair trial and effective assistance of counsel in both the guilt and penalty phases of a capital case. Strickland v. Washington, 466 U.S. 668, 691-92 (1984). As Defendant points out, defense counsel is constitutionally required to " to conduct a thorough investigation in preparation for the penalty phase of a capital case. " State v. Dunlap, 155 Idaho 345, 388, 313 P.3d 1, 44 (2013) (citing Porter v. McCollum, 558 U.S. 30, 38-41 5
(2009)). " Presentation of some mitigating evidence, even if strong, is insufficient if other mitigating evidence is available upon reasonable investigation. " Id. (citing Rompilla v. Beard,
545 U.S. 374, 387-93 (2005)).
The assertion that counsel needs the continuance to conduct an " exhaustive " and " comprehensive " dive into Defendant's " life history " for additional mitigation evidence overstates the extent of his counsel's constitutional obligations. Counsel's investigation into mitigation evidence must be " reasonable. " Id. The Idaho Supreme Court and the United States Supreme Court hold that defense counsel is " not required to investigate a defendant's entire life in order to present constitutionally sufficient mitigation evidence. " State v. Row, 131 Idaho 303, 313, 955 P.2d 1082, -1092 (1998); Wiggins v. Smith, 539 U.S. 510, 533 (2003) (" [W] e emphasize that Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. ") While Defendant notes that the ABA Guidelines for Mitigation Function of Defense Teams in Death Penalty Cases urge counsel in death penalty cases to conduct an " ongoing, exhaustive and independent investigation of every aspect of the client's character, history, records and any circumstances of the offense " to meet their constitutional obligations, courts look not to what is " prudent or appropriate, but only what is constitutionally compelled. " State v. Dunlap, 155 Idaho 345, 388, 313 P.3d 1, 44 (2013) (quoting Burger v. Kemp, 483 U.S.
776, 794 (1987)); Hall v. State, 151 Idaho 42, 53, 253 P.3d 716, 727 (2011) (rejecting argument that " heightened procedural safeguards should be employed at discovery in capital cases. "). 10 Row, a capital case, is instructive here. On post-conviction, Row argued her counsel was deficient because they failed to perform an adequate investigation into Row's background in search of mitigating evidence. 131 Idaho at 313, 955 P.2d at 1092. Specifically, Row argued 9 The Idaho Supreme Court reiterated this principle in State v. Dunlap, 155 Idaho 345, 388, 313 P.3d 1, 44 (2013) and State v. Hall, 163 Idaho 744, 823, 419 P.3d 1042, 1121 (2018).
10 Although, as the State points out, the Idaho Supreme Court has declined the " invitation to adopt these guidelines, " State v. Porter, 130 Idaho 772, 782, 948 P.2d 127, 137 (1997), the Idaho Public Defender Statutes, adopted in 2023, requires the State Public Defender to implement to ABA Guidelines for defendant attorneys delivering indigent defense services. I.C. § 19-6005 (4). Further, the U.S. Supreme Court has recognized that ABA Guidelines for defending attorneys are " guides to determining what is reasonable. " Wiggins v. Smith, 539 U.S. 510, 522 (2003); see also, Cullen v. Pinholster, 563 U.S. 170, 195 (2011) (" Beyond the general requirement of reasonableness, ' specific guidelines are not appropriate. " "). In other words, the ABA Guidelines are not dogmatic code; they are simply roadmaps to aid counsel in complying with their obligations of representation.
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counsel " should have investigated her life from birth to the sentencing hearing, that counsel were deficient in presenting her mental health workup [.] " Id. The Court rejected this claim, holding that counsel " was not required to investigate Row's entire life in order to objectively and reasonably present Row's mitigation evidence. " Id. The Court further noted the " great lengths " counsel underwent to investigate and present mitigating evidence from several of Row's friends, Health and Welfare records, letters from friends and family, and Veteran's Administration records concerning Row's husband's previous injuries and the couple's relationship. Id.
The investigation Defendant's experts have undertaken over the past two-plus years far exceeds that in Row and, in fact, readily appears to satisfy the relevant ABA Guidelines cited by Defendant. It includes, but is not limited to:
• Defendant's K-PhD education records, including coursework, interviews and correspondence;
• Defendant's ███████████████████████████ mental health and medical records, including ███████████████████████
• Records related to a childhood car accident;
• Defendant's employment records;
• Mental health, education and employment records of Defendant's sisters;
• Mental health records of Defendant's parents;
• Father's military records and social security records;
• Court records from multiple generations of Kohberger family (paternal side)
• VA records and death certificates from maternal and paternal uncles;
• Multiple interviews with Defendant and each immediate family member;
• Interviews of two of Defendant's fourth grade teachers, former boxing coach, and psychologist who evaluated Defendant in 2005;
• Interviews with multiple members of Defendant's extended family on maternal and paternal side;
• Interviews with Defendant's professor and advisor at DeSales University;
Interviews of Defendant's former co-worker;
• Interviews of at least one family friend, and;
Letters and jail calls between Defendant and his family. 12 • It is evident from the reports of Defendant's mitigation experts, Dr. Orr, Dr. Ryan and Dr.
Brams, that they have developed an expansive understanding of Defendant's family 11 In its Opposition to Defendant's current motion, the State appended two tables that cross-reference the list of tasks Defendant has identified from the ABA Guidelines with the actual record in this case. These tables demonstrate that the guidelines have been amply satisfied.
12These topics of investigation were obtained from Defendant's disclosed penalty-phase expert reports.
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environment, social development history, family history (both nuclear and extended over multiple generations), educational history and mental health and medical history. From this evidence, these experts have rendered several current diagnoses and identified other diagnoses for which Defendant " met criteria " at some point in his life.
Despite such an extensive investigation, Defendant claims additional investigation is warranted to identify: 1) and; 2) ████████████████████████████████████████
Howe