Order Denying Motion to Vacate Nondissemination Order

Filed: 06/23/2023 16:26:54 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 DENYING THE

VS.) ASSOCIATED PRESS'S MOTION

) TO VACATE THE AMENDED

BRYAN C. KOHBERGER,) NONDISSEMINATION ORDER

) Defendant.)

I. INTRODUCTION

This Order addresses the Motion to Vacate the Amended Nondissemination Order filed by Intervenors, a coalition of 20 media outlets¹ that will be collectively referred to as the " Associated Press. " The Amended Nondissemination Order does not restrict, restrain, or in any way enjoin the press from reporting on or publishing information they obtain through their own investigations or interviews. The Amended Nondissemination Order is not a " gag order " on the media. Instead, the The Associated Press; Radio Television Digital News Association; Sinclair Media of Boise, LLC / KBOI- TV (Boise); States Newsroom dba Idaho Capital Sun; Tegna Inc./KREM (Spokane), KTVB (Boise), and King (Seattle); EastIdahoNews.com; The Lewiston Tribune; Washington State Association of Broadcasters; Idaho Press Club; Idaho Education News; KXLY-TV / 4 News Now and KAPP / KVEW-TV- Morgan Murphy Media KXLY-TV / 4 News Now; Scripps Media, Inc., dba KIVI-TV, a Delaware corporation; The Spokesman Review / Cowles Company; The New York Times Company; LawNewz, Inc.; ABC, Inc.; WP Company LLC, dba The Washington Post; Society of Professional Journalists; The McClatchy Company, LLC; and the Seattle Times.

ORDER DENYING THE ASSOCIATED PRESS'S

MOTION TO VACATE THE AMENDED

NONDISSEMINATION ORDER-1

Amended Nondissemination Order restricts attorneys directly involved in the case who are representing a party, a witness, or a victim's family, and the agents for those attorneys, including law enforcement, from making certain statements about the case to the media or the public. Because " [m] embership in the bar is a privilege burdened with conditions, " Gentile v. State Bare of Nevada, 501 U.S. 1030, 1066, 111 S. Ct.2720, 2740, 115 L. Ed. 2d 888 (1991), 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.

The purpose of the Amended Nondissemination Order, which was stipulated to by the parties, is to protect 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 fundamental than the right to a fair trial by ' impartial ' jurors, and an outcome affected by extrajudicial statements would violate that fundamental right. " Id. at 1075, 111 S. Ct. at 2745.

The Associated Press's Motion to Vacate the Amended Nondissemination Order is denied.

This Court has the authority to regulate the speech of attorneys participating in this case, and the agents for those attorneys, to ensure that Kohberger is not denied his right to a fair trial by an impartial jury because of extrajudicial prejudicial statements. However, this Court will issue a Revised Amended Nondissemination Order that clarifies what cannot be discussed and what can be 2 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 THE ASSOCIATED PRESS'S

MOTION TO VACATE THE AMENDED

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discussed. The Revised Amended nondissemination Order (1) is limited to apply only to speech that is substantially likely to have a materially prejudicial effect on the right to a fair trial; (2) applies equally to all attorneys participating in the case; (3) is neutral as to points of view; and (4) restricts attorneys ' comments only until after the trial and any sentencing proceedings that may take place.

The Revised Amended Nondissemination Order is reasonable considering the facts of this case: (1) the evidence presented by the defense showing the pervasiveness of media coverage, including coverage prejudicial to Kohberger and coverage that includes extrajudicial statements by an attorney participating in the case; and (2) the impact such prejudicial news coverage has on potential jurors and the fair administration of justice. The restriction imposed serves a legitimate purpose, and the very limited incidental effects of the Revised Amended Nondissemination Order on the media's First Amendment rights are overridden by the compelling interest in ensuring that Kohberger's right to a fair trial under the Sixth Amendment is not jeopardized.

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 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.

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MOTION TO VACATE THE AMENDED

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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 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 Shanon Gray, attorney for the Goncalves family. 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 the case of 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
ORDER DENYING THE ASSOCIATED PRESS'S

MOTION TO VACATE THE AMENDED

NONDISSEMINATION ORDER-4

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 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 in order to preserve the right to a fair trial by an impartial jury.

On January 18, 2023, the magistrate judge, based on the stipulation of the parties, entered the Amended Nondissemination Order to balance Kohberger's and the State'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;
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MOTION TO VACATE THE AMENDED

NONDISSEMINATION ORDER-5

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.

On February 6, 2023, the Associated Press filed a Petition for Writ of Mandamus or a Writ of Prohibition with the Idaho Supreme Court related to the Amended Nondissemination Order. 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. Thereafter, on May 2, 2023, the Associated Press filed a Motion to Intervene and a Motion to Vacate the Amended Nondissemination Order. The magistrate 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. The Associated Press's Motion to Vacate the Amended Nondissemination Order was extensively briefed, and both the State and Kohberger submitted extensive briefing in opposition to the Motion.

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 Associated Press was represented by Wendy Olson and Cory Carone.

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MOTION TO VACATE THE AMENDED

NONDISSEMINATION ORDER-6

During the hearing, the defense put on the testimony of two expert witnesses. First, Jean R.

Saucier, Senior Vice President of Truescope North America, testified. In sum, Ms. Saucier testified to the quantity of media coverage in this case. It is undisputed that media coverage in this case is rampant and ongoing, including on television, the internet, social media, and the radio. News surrounding the case is being reported by reliable sources of news, unreliable news outlets, and individuals engaged in spreading or fueling rumors, theories, and unfounded speculation. It is also worth noting that Ms. Saucier's testimony and the exhibits she showed demonstrate that in the " Share of Voice – Media Coverage " category, " Shanon Gray's stories [in the media] had the highest potential reach at 561,112,573 impressions ” with impressions being the " opportunities to see " a story. Ex. A to Defendant's Objection to Media's Mot. to Vacate the Amended Nondissemination Order. Shanon Gray is the attorney for the Goncalves family and is bound by the Amended Nondissemination Order.

The defense also submitted several news articles demonstrating that at least some portion of the news, if not most of it, is prejudicial to Kohberger. See Motion to Take Judicial Notice of Press Coverage.

Second, Dr. Amani El-Alayli, Social Psychologist and Social Cognition Researcher, testified to the impact such media can have on a potential juror. It was Dr. El-Alayli's opinion " that vacating the non-dissemination order would increase the potential for bias among prospective jurors, both initially and throughout the trial. " Dr. El-Alayli further opined that " my review of research illustrat [es] that anti-defendant pretrial publicity increases the probability of guilty verdicts, and that this bias persists despite the receipt of trial arguments / evidence, admonitions to disregard the publicity information, and jury deliberation.... commentary by individuals with status / expertise
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MOTION TO VACATE THE AMENDED

NONDISSEMINATION ORDER-7

(e.g., police, attorneys, and judges) in media coverage create more potential for biased jurors. " Ex.

D to Defendant's Objection to Media's Mot. to Vacate the Amended Nondissemination Order.

III. ISSUES PRESENTED

The Associated Press argues that the Amended Nondissemination Order restrains their " constitutional right [to gather news] before it can be exercised " in violation of the First Amendment. Mem. in Supp. of Mot. to Vacate the Amended Nondissemination Order at 15. The Associated Press asserts that their First Amendment rights are being violated because " [t] he media does not make the news; it reports the news. " Id. at 17. The argument continues that " [i] f a court orders an individual not to provide information to the media, then the media has nothing to report. ” Id. " Intervenors ' speech is thus being restrained before they can even speak. " Id. at 15. Thus, The Associated Press alleges that the Amended Nondissemination Order is a prior restraint on the media and does not survive the strict scrutiny test applied to prior restraints on the press.

This decision addresses the following: (1) the obligation of the Court to ensure that Kohberger's right to a fair trial is not being jeopardized by prejudicial extrajudicial statements;
(2) the Court's authority to impose restrictions on the speech of those attorneys and their agents involved in this case; and (3) the standard applied to reviewing constitutional challenges by the media to nondissemination orders aimed at trial participants, especially lawyers. Finally, this decision applies the law to the facts of this case in addressing The Associated Press's argument that the Amended Nondissemination Order violates their First Amendment rights.

IV. LAW

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 U.S. 333, 335, 362, 86 S. Ct. 1507, 1508, 1522, 16 L. Ed. 2d 600 (1966).

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While recognizing that " [a] responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field, " id. at 350, 86 S. Ct. at 1515, the Court chastised the trial judge for not taking " strong measures " to ensure Sheppard's right to a fair trial. Id. at 362, 86 S. Ct. at 1522. In Sheppard, there was not a nondissemination order on trial participants or any " gag order " on the media. Notably, in overturning Sheppard's conviction, the Court listed several things that the trial court should have done: 1) “ the judge should have adopted stricter rules governing the use of the courtroom by newsmen, " and " should have more closely regulated the conduct of newsmen in the courtroom "; 2) " the court should have insulated the witnesses. All of the newspapers and radio stations apparently interviewed prospective witnesses at will, and in many instances disclosed their testimony "; 3) " the court should have made some effort to control the release of leads, information, and gossip to the press by police officers, witnesses, and the counsel for both sides. Much of the information thus disclosed was inaccurate, leading to groundless rumors and confusion "; 4) " the judge should have at least warned the newspapers to check the accuracy of their accounts "; and 5) " it is obvious that the judge should have further sought to alleviate [inaccurate, prejudicial news] by imposing control over the statements made to the news media by counsel, witnesses, and especially the Coroner and police officers. " Id. at 358-360, 86 S.

Ct. at 1520-1521.

In summary, the Court stated that " the trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters, such as the refusal of Sheppard to submit to interrogation or take any lie detector tests; the identity of prospective witnesses or their probable testimony; any belief in guilt or innocence; or like statements concerning the merits of the case. " Id. at 361, 86 S. Ct. at 1521. " In this manner, Sheppard's right to a trial free from outside influence would have been given added protection
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MOTION TO VACATE THE AMENDED

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without corresponding curtailment of the news media. Had the judge, the other officers of the court, and the police placed the interest of justice first, the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom – not pieced together from extrajudicial statements. " Id. at 362, 86 S. Ct. at 1522 (emphasis added).

In addressing the tension between the First Amendment and the Sixth Amendment, the Court stated:
From the cases coming here we note that unfair and prejudicial news comment on