Memorandum Support Motion Change Venue

Electronically Filed
7/22/2024 1:52 PM

Second Judicial District, Latah County Julie Fry, Clerk of the Court Anne Taylor Law, PLLC By: Beth Mottern, 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 LATAН

STATE OF IDAHO CASE NUMBER CR29-22-2805

Plaintiff, MEMORANDUM IN SUPPORT OF
MOTION TO CHANGE VENUE

V.

BRYAN C. KOHBERGER,

Defendant.

COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby submits this Memorandum in Support of Motion to Change Venue. This motion is based on the 5th, 6th, 8th and 14th Amendment to the United States Constitution, and Article I, § 1, 6, 7, 13 and 18 of the Idaho Constitution, Idaho Criminal Rule 21, and Idaho Code 19-1801 et seq. and MEMORANDUM IN SUPPORT OF MOTION TO CHANGE VENUE Page 1

supporting case law. This Memorandum is supported by exhibits referenced herein and attached.

Witnesses will be called at the hearing.

Mr. Kohberger is protected under the Constitutions of the United States and the State of Idaho. His protection to a fair and impartial jury is infringed without a change of venue. A fair and impartial jury cannot be found in Latah County because of the extensive publicity that is ongoing and inflammatory. The inflammatory nature of the publicity has included inaccurate information and inadmissible information. The publicity has been extremely pervasive in the small community of Latah County. Remediations, such as enlarging the jury pool will not cure the problem.

ISSUES

I. Bryan Kohberger cannot receive a fair trial in Latah County as protected by his rights under both the United States and Idaho Constitutions because of the pervasive, inflammatory, often inaccurate and highly prejudicial publicity, and the small size of the jury venire.

II. A change of venue is necessary under Idaho Criminal Rule 21 and Idaho Code 19-1801.

ABBREVIATED FACTUAL BACKGROUND

Media coverage of the case that later became State v. Bryan Kohberger began in the early afternoon of November 13, 2022, when news broke of four homicides in Latah County Idaho.

Extensive media coverage ensued for 6 weeks during the police investigation prior to the arrest of Mr. Kohberger. Daily updates were available from Moscow Police Department (hereinafter MPD), often participating in the updates, or press releases, was the Latah County Prosecutor and Chief of Police James Fry. These broadcasts were played on television news stations as well as print and digital media. Social media covered the investigation with MPD updating its Facebook page and providing press releases and media statements regularly. See Exhibit A; MPD Press Releases. MPD's investigation included law enforcement partners from Idaho State Police and the FBI. Media coverage, particularly in the market covering Latah County was replete with story MEMORANDUM IN SUPPORT OF MOTION TO CHANGE VENUE Page 2

after story in local newspapers and news stations; media focus did not stop with locally targeted news stations or newspapers; it extended into magazines, books, crime TV shows and the current medium of information and opinion sharing, the internet. Immediately, and consistently, the internet was abuzz with podcasts, tweets, Facebook groups, Reddit, YouTube and TikTok postings. Once the police arrested Mr. Kohberger the public was ready to, and has, proceeded to vilify him without regard to the Constitutional guarantee of the presumption of innocence and a right to an impartial jury and fair trial. The media focus on Mr. Kohberger has been relentless and highly inflammatory.

ARGUMENT

I. Bryan Kohberger cannot receive a fair trial in Latah County, as protected by his rights under both the United States and Idaho Constitutions, because of the pervasive, inflammatory, and often inaccurate publicity, and the small size of the jury venire.

The great value of the trial by jury certainly consists in its fairness and impartiality.

Those who most prize the institution, prize it because it furnishes a tribunal which may be expected to be uninfluenced by an undue bias of the mind. I have always conceived, and still conceive, an impartial jury as required by the common law, and as secured by the constitution, must be composed of men who will fairly hear the testimony which may be offered to them, and bring in their verdict according to that testimony, and according to the law arising on it. This is not to be expected, certainly the law does not expect it, where the jurors, before they hear the testimony, have deliberately formed and delivered an opinion that the person whom they are to try is guilty or innocent of the charge alleged against him.

United States v. Burr, 25 F. Cas. 49, 50 (1807) (Marshall, C.J.).

The United States Constitution, through the Sixth and Fourteenth Amendment and the Constitution of the State of Idaho, Article 1 Section 7, guarantee an accused with a fair trial and an impartial jury. The constitutional mandate of a fair trial by an impartial jury requires a change of venue where an impartial jury cannot be empaneled in the district where the indictment is returned. Groppi v. Wisconsin, 400 U.S. 505, 510-511 (1971). “ Due process requires that the accused receive a trial by an impartial jury free from outside influences ” Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S. Ct. 1507,1522, 16 L.Ed.2d 600 (1966) see Murphy v. Florida, 421 U.S.

794, 95 S.Ct. 2031, 44 L.Ed.2d. 751 (1961). Where there is a reasonable likelihood that prejudice MEMORANDUM IN SUPPORT OF MOTION TO CHANGE VENUE Page 3

in a community will prevent a fair trial, a change of venue should be granted. Sheppard, 384 U.S.

at 363, 86, S.Ct. at 1522, 16 L.Ed.2d 600. “ Consequently, the question posed by a motion to change venue is whether a ‘ reasonable likelihood ' exists that pretrial publicity has affected the impartiality of prospective jurors. ” State v. Hall, 111 Idaho 827,829, 727 P.2d. 1255, 1257, (Ct.

App. 1986). “ The phrase ‘ reasonable likelihood ' denotes a lesser standard of proof than ‘ more probable than not. ” Williams v Placer County, 668 P.2d 799, 801 (Cal. 1983) (en banc); see State v. James, 767 P.2d 549, 552 (Utah 1989) (“ [A] reasonable likelihood of prejudice does not mean that the prejudice must be more probable than not. ").

The determination of whether to grant a motion for change of venue is addressed to the discretion of the trial court. State v. Yager, 139 Idaho 680, 687, 85 P.3d 656, 663 (2004). In exercising this discretion, the trial court must keep in mind that although the mere presence of pretrial publicity is not enough by itself to warrant a change of venue, “ a defendant's inability to make a detailed and conclusive showing of prejudice is not a proper ground for refusing to change venue. Prejudice seldom can be established or disproved with certainty. ” Hall, 111 Idaho at 829, 727 P.2d at 1257; see Williams, 668 P.2d at 801 (“ [A] showing of actual prejudice shall not be required. ") " [A] ny doubt as to the necessity of removal to another county should be resolved in favor of a change of venue. دو " Id.

Prejudice may properly be presumed when either (a) inflammatory publicity about a case has so saturated a community that it is almost impossible to draw an impartial jury from that community, or (b) so many jurors admit to a disqualifying prejudice that the trial court may legitimately doubt the avowals of impartiality made by the remaining jurors. United States v.

Rodriguez-Cardona, 924 F.2d 1148, 1158 (1st Cir. 1991). Publicity by itself does not require a change of venue, “ however, a ‘ presumption of prejudice ', requiring a change of venue ‘ attend only the extreme case. The test for the ' extreme case ' remains whether the trial atmosphere has been utterly corrupted by press coverage. ” (internal citations omitted) State v. Hadden, 152 Idaho 371, MEMORANDUM IN SUPPORT OF MOTION TO CHANGE VENUE Page 4

271 P.3d 227 (Ct. App. 2012); Skilling v. United States, 130 S.Ct. 2896, 177 L.Ed.2 619 (2010) Mr. Kohberger is not on the eve of trial thus, no actual jurors will be called in to determine prejudice. Instead, extensive surveys show actual prejudice and how State v. Kohberger is an extreme case where a venue change is required. It is not possible to impanel an impartial jury in Latah County based on the pervasive and inflammatory press coverage. See EXHIBIT B, Dr.

Edelman report.

A. State v. Kohberger is an Extreme case in that the Atmosphere Latah County is Utterly Corrupted by Press Coverage Requiring a Change of Venue.

Bryan Christopher Kohberger, once arrested, quickly became a recognized name. The investigation into the deaths of four college students had captured the attention of the community, the State, the Country and even beyond the United States long before the arrest of Mr. Kohberger.

Since his arrest, interest in the charges, who he is and his background continue rather than fade over time. The continuous nature of media coverage, often inaccurate and misleading, the impact of the media coverage, and the small size of the community make the case against Mr. Kohberger extreme.

Media saturation in Latah County has been continuously heavy since the deaths were reported. Public interest in the case does not wain. Stories about the case and Mr. Kohberger come in the form of published books, television crime shows, internet platforms, social media, news stations and newspapers across the nation. The most coverage from these sources has occurred in Latah County. Coverage runs the gamut of reporting on items contained in court filings to reporting about what “ unnamed sources ” have said as well as reporting based on other media stories. These stories are often rife with misinformation and speculation. The amount of media stories, the inaccurate and speculative nature of the stories and the impact on potential jurors show that State v. Kohberger is an extreme case. The impact of this vast media coverage on a potential Latah County Juror demonstrates the necessity of venue change. Media from locations outside of MEMORANDUM IN SUPPORT OF MOTION TO CHANGE VENUE Page 5

Latah County is easily accessible to a potential juror; however, Latah County residents have received the most media saturation within the State. See EXHIBIT C; (Truescope collection of local coverage). Truescope is a media collection company, and, based on the analytics completed by the company, media coverage directly in Latah County makes up 36.13% of the coverage in the entire state. The statistics indicates that this is 36.13% of traceable media; that means newspapers and television. See Exhibit C (Truescope powerpoint). More than one third of the total print and news coverage is centered in Latah County. More than one third of the traceable media in one county is astounding; however, considering that Latah County comprises only 2.75% of the entire population of Idaho the oversaturation and resulting prejudice is magnified.

The prolific media coverage, in Latah County, is not a mere passing story. The content is not benign, rather, it is inflammatory, emotion evoking and often misleading, false, and poorly sourced. There is no reasonable belief that media coverage will slow, regardless of how long the case takes to prepare for trial. There will be no elapsed time between media coverage and jury trial, a factor considered by the Supreme Court in Skilling. In Exhibit C, Truescope depicts a visual of peaks and valleys in coverage rather than a continual decline. The valleys, followed by a spike correlate with hearings or court filings in the case. Based on the pattern depicted in Exhibit C it is not reasonable to believe a decline prior to trial will occur in Latah County.

Media coverage, while extensive, must also be prejudicial. Skilling, Hadden. The prejudicial effect of the Latah County media coverage is shown based on survey work performed and analyzed by Dr. Bryan Edelman, Trial Innovations See Exhibit B. Dr. Edelman constructed a survey to test the effect of publicity in this case. The survey consisted of questions related to case recognition in general, specific information recollection, and impact for prejudgment. This type of tool is widely accepted within Dr. Edelman's scientific community. See Exhibit F, Dr. Veronica Dahir Report and CV.

Analysis of the Community Attitude Survey conducted by Trial Innovations demonstrates MEMORANDUM IN SUPPORT OF MOTION TO CHANGE VENUE Page 6

that Latah County citizens who are over the age of 18 are biased and have knowledge of information that is inflammatory, misleading and / or false about this case. The Community Attitude Survey shows case recognition is 98%. Seventy percent of those recognizing the case have already formed an opinion regarding Mr. Kohberger; their opinion is that he is guilty. The Survey shows that of those that have the opinion Mr. Kohberger is guilty, fifty-one percent state they have a fixed opinion – that means there is nothing that will change their opinion. This is demonstrative of the prejudice discussed in Hadden, as the survey results show both presumed prejudice and actual prejudice in Latah County. The threshold in Idaho is “ reasonable likelihood " as the court in Hadden stated:
it is sufficient for the accused to show there was a reasonable likelihood prejudicial news coverage prevented a fair trial in violation of the Sixth Amendment to the United States Constitution.

Hadden at 377.

In order to distinguish the media impact on Latah County residents, comparison surveys were conducted in three other counties in Idaho. The comparative surveys, while showing high case recognition rates and similar prejudgment of guilt rates have important differences of lower recognition of media items. The inaccurate media items have a high link in potential prejudgment opinions of guilt. 1 Additionally, comparative county surveys show a lower number of people following the case and have fewer personal connections. It is noteworthy that outside of Latah County the incidence of fear associated with the case is significantly reduced. The United States Supreme Court also distinguished between jurors ” “ mere familiarity [with the defendant] and an actual predisposition against him. " Murphy Id. Dr. Edelman's survey work shows actual predisposition against Mr. Kohberger in Latah County.

One of the primary considerations in determining the pre-trial publicity and corruption of 1 Exhibit 2-Dr. Edelman survey and declaration. Media item " have you read seen or heard that Bryan Kohberger was staking one of the victims " is correlated to a high guilt rate. This media item was acknowledged as false by the State in a prior hearing. The knowledge of that media item was higher in Latah County than other counties.

MEMORANDUM IN SUPPORT OF MOTION TO CHANGE VENUE Page 7

a community for venue is the " size and characteristics of the community in which the crime occurred ” Skilling at 2902. Latah County, Idaho is a small, tightly knit community; based on survey results it is a community with a prejudgment for conviction and death sentence. The population of Moscow is only 41,0002 and of that, 19% are under the age of 18 making them ineligible to be a juror, 19% are over the age of 65, all but approximately 2,000 of whom may request to be excused on the basis of age (those over 70 years old).3 The census statistics reduce the eligible population on age alone by 38%, for a total 25,000 available population before any juror qualifications questions are asked. Ada County, twelve times larger than Latah County provides a greater hope of seating an impartial jury. The small size of Latah County is further challenged by connections to the case that do not exist in other counties. Some of the major employers in the community are people connected to law enforcement and the University of Idaho.

The University is the single largest employer in the community with at least 4,517 employees. The county and city, who employ law enforcement, court staff and jail staff have more than 300 employees.4 The controlling precedent of the United States Supreme Court in Patton v. Yount, 467 U.S.

1025 (1984), and Sheppard v. Maxwell, 384 U.S. 333 (1966), hold that upon the showing of abundant evidence in the record demonstrating media saturation in a small county with facts about the case, false information about the case and otherwise inadmissible material, a change of venue is appropriate. In Sheppard the Supreme Court held that due process requires a change of venue or a continuance when the defendant can show a “ reasonable likelihood that prejudicial news prior to trial will prevent a fair trial. ” 384 U.S. 333, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). More specifically, because a criminal defendant has the right to an impartial jury, a court must grant a 2 https://www.census.gov/quickfacts/fact/table/idahocountyidaho,latahcountyidaho,US/HSD410222 3 https://data.census.gov/profile/Latah_County,_Idaho?g=050XX00US16057#populations-andpeople 4 https://www.ci.moscow.id.us/ArchiveCenter/ViewFile/Item/372 MEMORANDUM IN SUPPORT OF MOTION TO CHANGE VENUE Page 8

motion to change venue “ if prejudicial pretrial publicity makes it impossible to seat an impartial jury. " Daniels v. Woodford, 428 F.3d 1181, 1210 (9th Cir.2005) (citation omitted). The United States Supreme Court distinguishes between “ publicity that is ‘ largely factual publicity ' and ‘ that which is insidious or inflammatory. ” Murphy v. Florida, 421 U.S. 794, 798–99, 95 S.Ct. 2031, 2035-36, 44 L.Ed.2d 589 (1975) Of importance is the small community impact on the juror. Jurors sitting on a trial in Latah County will have no anonymity. In a town where calls by a surveyor result in reports to the prosecution and police, there is no doubt that everyone will know who the seated jurors are if this trial is not moved. Jurors will be under immeasurable pressure to reach a guilty verdict and then a death verdict. The affidavit of Scott Sunby in support of this motion states:
Two distinct dangers arise from holding a capital trial in a small community where the victims of the high-profile murders are local residents. The first is that jurors will be distinctly aware of community outrage and, as a result, some are likely to fear that many of their neighbors and co-workers will ostracize them if they do not return a sentence of death.

See EXHIBIT D, Sundby Affidavit. Mr. Sundby asserts that based on over a decade of research and hundreds of interviews of death qualified jurors, the pressures of deliberations in a capital case in a small community are different and carry unique pressures. The survey analysis bears this out in Latah County. See Exhibit B.

The lasting impact of extensive media coverage cannot be undone through the voir dire process. The is enough evidence to presume prejudice incapable of remedy in Latah County.

As the Supreme Court stated in 1908:
Bias or prejudice is such an elusive condition of mind that it is most difficult, if not impossible, to always recognize its existence, and it might exist in the mind of one (on account of his relation with one of the parties) who was quite positive that he had no bias, and said that he was perfectly able to decide the question wholly uninfluenced by anything but the evidence.

5 A Life and Death Decision by Scott E. Sundby, 2005