Objection to Media Motion to Vacate Nondissemination Order

CASE CLRK

BY

JUN

NO OF

. 6
DIST 2023

Anne C. Taylor, Public Defender Kootenai County Public Defender-229-22-2805 CT PM2 PO Box 9000 DEPUTY.

Coeur d'Alene, Idaho 83816 LATAH: 22
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 LATAН

STATE OF IDAHO CASE NUMBER CR29-22-0002805

Plaintiff,
OBJECTION TO MEDIA'S MOTION TO

V. VACATE THE AMENDED

NONDISSEMINATION ORDER

BRYAN C. KOHBERGER,

Defendant.

COMES NOW, Bryan C. Kohberger, by and through their attorney, Jay Weston Logsdon, Chief Deputy Litigation, and hereby objects to the Motion to Vacate the Amended Nondissemination Order, on the grounds that justifications exist to support the continued existence of the Amended Nondissemination Order, and even if this Court finds it is overbroad, it remains appropriate to have an Order reminding lawyers and their agents of the rules of engagement in this country and that we try cases in court, not in the press.

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ISSUE

I. Whether the amended nondissemination order violates the First Amendment A. Introduction B. The part of the amended nondissemination order that is merely a restatement of I.R.P.C. 3.6 cmt. 5 did not require specific findings or a hearing before it was entered C. The legal standard for nondissemination orders for attorneys and their agents is substantial likelihood of material prejudice.

D. The Amended Nondissemination Order is necessary in this case to protect the parties ' right to a fair trial.

FACTUAL AND PROCEDURAL HISTORY

On December 29, 2022, the State filed four charges of First Degree Murder against Bryan Kohberger. On December 30, 2022, attorneys made a limited appearance on his behalf. On January 3, 2023, the State and Mr. Kohberger agreed to the entry of a nondissemination order. That Order stated:
The Court, by stipulation of the parties, enter its Order as follows:
IT IS HEREBY ORDERED that the parties to the above entitled action, including investigators law enforcement personnel, attorneys, and agents of the prosecuting attorney or defense attorney, are prohibited 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.

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:
1. Evidence regarding the occurrences or transactions involved in this case;
2. The character, credibility, or criminal record of a party;
3. The performance or results of any exminations [sic] or tests or the refusal or failure of a party to submit to such tests or examinations;
4. Any opinion as to the merits of the case or the claims or defense of a party;
5. Any other matter reasonably likely to interfere with a fair trial of this case, such as, but not limited to, the existence or contents of any confession, admission, or
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statement give [sic] by the Defendant, the possibility of a plea of guilty to the charged offense or a lesser offense, or any opinion as to the Defendant's guilt or innocence.1 IT IS FURTHER ORDERED that no person covered by this order shall avoid its proscriptions by actions that indirectly, but deliberately, cause a violation of this order.

IT IS FURTHER ORDERED that this order, and all provisions thereof, shall remain in full force and effect throughout these proceedings, until such time as a verdict has been returned, unless modified by this court.

On January 13, 2023, the Magistrate Court held a meeting via zoom with the parties under seal. As a result of that meeting, the Court entered an Amended Nondissemination Order on January 18, 2023.

This Order contained a preface indicating the law permits the entry of such an order, that the parties stipulated to its entry, and added the attorneys for witnesses, victims, and victims ' families to those bound by the order. Additionally, it added a first section that prohibited all attorneys and their agents 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. " The original order remained as a part 2.

On February 3, 2023, an attorney for a victims ' family filed a Motion to Appeal, Amend, and / or Clarify Amended Nondissemination Order. In his Memorandum in Support of Motion for Appeal and / or Clarification of Amended Nondissemination Order, the attorney indicated he had 1 This language largely mirrors I.R.P.C. 3.6 cmt. 5, which states:
[5] There are, on the other hand, certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration.

These subjects relate to:
(1) The character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;
(2) In a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement;
(3) The performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
(4) Any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;
(5) Information that the 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; or (6) The fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

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not stipulated to the entry of the order. The crux of his Motion was that the order should not apply to him at all.

On February 6, 2023, the Media filed a request for a writ that would dissolve the nondissemination order (which the Media continually refers to as a " gag " order) in the Idaho Supreme Court.

On February 28, 2023, the Magistrate Court unsealed a memorandum with redactions of the January 13, 2023, meeting.

On March 24, 2023, the Idaho Supreme Court denied the Media's Petition for Writ of Mandamus or Writ of Prohibition. In Re: Petition for Writ of Mandamus or Writ of Prohibition, P.3d --, 2023 WL 3050829 (2023). The Idaho Supreme Court agreed with Mr. Kohberger that the Media had failed to show the absence of an adequate, plain or speedy remedy in the ordinary course of law.

The Idaho Supreme Court also agreed with the Media that it had standing, something Mr.

Kohberger never disputed.

While ruling on the standing issue, the Court found that a " vague, overbroad, unduly restrictive, or not narrowly drawn " nondissemination order would be unconstitutional. Id. at * 5.

The Court then found that the Order states that it " includes but is not limited to " attorneys and their agents- possibly applying to a broad swath of the population. Id. at * 6. The Court then found that the Memorandum of the January 13, 2023, meeting, shows that the Order does not apply to witnesses. Id. All the same, the Court held that the Media's concerns about the Order were " not merely contrived ". Id.

Armed with this language, the Media returned to this Court on May 1, 2023, seemingly triumphant, proclaiming that the Supreme Court agreed that unconstitutional orders are unconstitutional and all that is left is for this Court to follow its lead. Media's Motion to Vacate the
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Amended Nondissemination Order, at * 2; see also, Media's Memorandum in Support of Motion to Vacate the Amended Nondissemination Order, at * 5, and Media's Motion to Intervene, at * 2.

However, things are never so simple. On May 16, 2023, the State's superseding indictment came down. As if specifically to epitomize the concerns of Mr. Kohberger, the State and this Court, NBC's Dateline released another special on this case on May 19, 2023. Dateline NBC, Watch the Dateline Episode " The Killings on King Road " Now (available at https://www.nbcnews.com/dateline/watch-dateline-episode-killings-king-road-now-rcna85914).

Using the same playbook the Media has chosen throughout this case, the special gets details of the investigation wrong (despite access to the arrest affidavit), it chooses to treat Mr. Kohberger as already guilty (asking multiple " experts " to speculate as to how and why he committed the murders without once asking if the police have the right person), and it provides audiences with made up evidence of Mr. Kohberger's character that will never see the inside of a courtroom. It even had a " leak ", just a little over two weeks after the Media claimed there were none. Media's Brief, at * 1.

The upshot of this and similar media stories is a constant feedback loop of people crying out for Mr. Kohberger's blood. One of those that now leads that pack happens to be a lawyer who has inserted himself into this case- Mr. Gray, who despite the Order not to communicate to the mediacan be seen doing just that over and over again ever since the indictment occurred. See, e.g., Brandon Drey, Attorney Says University of Idaho Victims ' Families Want Death Penalty for Accused Killer. Report, DAILY WIRE (May 28, 2023).

Most recently- on June 2, 2023, the Media filed an additional Memorandum in support of its Motion, as well as eight Declarations of various reporters previously contained in counsel for the Media's own declaration, apparently to illustrate the dangers of hearsay. According to the Media's new Memorandum, this Court should not accept an " ambush " of evidence from the actual parties in
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the case because we had our chance back when we both agreed the Nondissemination Order was necessary.

Into this maelstrom, Mr. Kohberger once again objects to the Media's demands and asks this Court to uphold the rule of law, including, but not limited to, his constitutional rights to being presumed innocent and to a fair trial.

ARGUMENT

A. Introduction The Media have claimed that the Amended Nondissemination Order in this matter violates the First Amendment on the grounds that there is no record of prejudicial media coverage, the order is overly broad in terms of the speech and parties covered, and the order is vague. The Media makes brief reference to Idaho Rule of Professional Conduct 3.6, claiming a court must provide some justification for entering an order enforcing the professional rules instead of leaving that to the Bar.

Media's Brief at * 7. Mr. Kohberger will begin by showing that the original order, now the second part of the Amended Nondissemination Order, mirroring 3.6, is absolutely an appropriate order for this court to enter. He will then show that the Amended Nondissemination Order is appropriate given the behaviors of certain attorneys and the manner in which the Media has chosen to cover this case.

B. The part of the amended nondissemination order that is merely a restatement of I.R.P.C. 3.6 cmt. 5 did not require specific findings or a hearing before it was entered.

Starting with the second part of the Amended Nondissemination Order, which is essentially the original Nondissemination Order, the question the Media's brief argument raises is what findings are required, if any, for a court to enter an order enforcing the Idaho Rules of Professional Ethics? Based on the Idaho Supreme Court's rulings, no such findings are required. In Litser Frost Injury Lawyers, PLLC v. Idaho Injury law Group, PLLC, 171 Idaho 1 (2022), the Idaho Supreme Court
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not only found that an attorney had violated the rules of professional ethics, but remanded for the district court to devise a sanction. The Idaho Supreme Court found that determining sanctions for conflicts of interest was " precisely the kind of ethical question that this Court, and trial courts, may properly address. " Id. at 23 (citing Hepworth Holzer, LLP, 169 Idaho at 394). In Schiermeier v. State, Idaho ---, 521 P.3d 699, 711-12 (2022), the Idaho Supreme Court issued a written public warning in its decision to attorneys violating I.R.P.C. 8.2 and 8.4. Thus, the Idaho Supreme Court has held that courts have the inherent power to sanction attorney misconduct. No initial order reminding parties of what the rules are is necessary for this Court to punish misconduct.

The only case that seems to stand for the proposition that courts cannot is Kosmann v. Dinius, 165 Idaho 375, 385 (2019), wherein the Idaho Supreme Court found that the professional rules should not be used by attorneys as weapons and that the district court appropriately left the issue of a violation of I.R.C.P. 4.2 to the State Bar. That case clearly delineates between attorney misconduct reported by a party from that which a judge personally experiences.

In this case- while it is true that media relations are extrajudicial- no hearing is required for a court to take judicial notice of publicly available media coverage that is not subject to reasonable dispute. I.R.E. 201 (b) (2). Courts have routinely taken judicial notice of things like webpages and social media postings. See, Al-Ahmed v. Twitter, Inc., 603 F. Supp. 3d 857, 869 (N.D. Cal. 2022), appeal dismissed, 2022 WL 4352712 (9th Cir. 2022); BYD Company Ltd. v. Alliance for American Manufacturing, 554 F. Supp. 3d 1, 13 (D.D.C. 2021); Williams v. PMA Cos., Inc., 419 F. Supp. 3d 471, 484 (N.D. N.Y.

2019). An Order to Show Cause is a perfectly appropriate way for a trial court to give a violator a chance to explain themselves and for the trial court to put a stop to any issues quickly.

Thus, the Idaho Supreme Court's precedents are clear- the Rules of Professional Conduct are active limitations in this matter on the attorneys and their agents. Thus, the magistrate court's portion of the Nondissemination Order that simply restated the rule was nothing more than an
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admonishment to the attorneys and their agents that they must abide by I.R.P.C. 3.6. Even without the Order, the magistrate would have been able to sanction parties for violating those rules. This is not a case where the attorneys seek to use the rules as a weapon against one another. It is a case where a young man is on trial for his life. There was nothing inappropriate about the magistrate court reminding the attorneys involved of their ethical obligations.

C. The legal standard for nondissemination orders for attorneys and their agents is substantial likelihood of material prejudice.

In its Memorandum in Support of its Motion, the Media deals with the standard of review for nondissemination orders last, and in an oddly piecemeal fashion. To be clear- the Media's claim that strict scrutiny is appropriate for an order limiting speech for attorneys and their agents has no basis in law. The standard is " substantial likelihood of material prejudice. " The Media's latest argument seems to run thusly-
• Sheppard v. Maxwell, 384 U.S. 333 (1966) is bad law because it did not consider the First Amendment. Media's Brief at * 11.

Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 563 (1976), is a case involving a nondissemination order that was found unconstitutional. Media's Brief at * 11.

• The majority opinion in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) requires strict scrutiny for nondissemination orders for lawyers. Media's Brief at * 15.

The Media then encourage this Court to follow People v. Sledge, 879 N.W.2d 884 (Ct.App.Mich. 2015) and CBS Inc. v. Young, 552 F.2d 234 (6th Cir.1975). Media's Brief at * 18.

This Court should certainly read Sheppard. The case set the standard for the entry of nondissemination orders as whether " there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial ". 384 U.S. at 363. It also contains gems such as:
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Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.

Id. To the Media's contention that it is no longer good law, that argument seems overstated.

Certainly, the days of presuming prejudice based on media coverage are gone. See, e.g. U.S. v.

Tsarnaev, 142 S.Ct. 1024 (2022) (discretion of the trial court is key). But to understand the grounds for a nondissemination order such as the one before the Court, one must follow the cases.

To do so, it helps if one honestly reads them. Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976), was not about a nondissemination order at all like the one in this matter. It was about an order enjoining the press. Id. at 562. The Court actually noted the attractiveness of nondissemination orders for counsel and the police. Id. at 563. Oddly, the Media's briefing fails to mention either that the nondissemination order in Stuart is nothing like the case at bar, or fact that Stuart explicitly endorsed orders just like this one. Media's Brief at * 11-13. This is particularly peculiar where the Media (Media's Brief at * 12) actually quotes language from the paragraph just above where Stuart says:
This Court has outlined other measures short of prior restraints on publication tending to blunt the impact of pretrial publicity. See Sheppard v. Maxwell, supra, at 361-362, 86 S.Ct., at 1521-1522. Professional studies have filled out these suggestions, recommending that trial courts in appropriate cases limit what the contending lawyers, the police, and witnesses may say to anyone. See American Bar Association Project on Standards for Criminal Justice, Fair Trial and Free Press 2-15 (App. Draft 1968).8
Footnote 8: Closing of pretrial proceedings with the consent of the defendant when required is also recommended in guidelines that have emerged from various studies.

At oral argument petitioners ' counsel asserted that judicially imposed restraints on lawyers and others would be subject to challenge as interfering with press rights to news sources. Tr. of Oral Arg. 7-8. See E. g., Chicago Council of Lawyers v. Bauer, 7 Cir., 522 F.2d 242 (CA7 1975), cert. denied, Sub nom. Cunningham v. Chicago Council of Lawyers, 427 U.S. 912, 96 S.Ct. 3201, 49 L.Ed.2d 1204. We are not now confronted with such issues.

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Stuart, 427 U.S. at 563. Even stranger- the Media ar