Affidavit of Gregory Rauch

Electronically Filed
8/27/2026 6:45 PM

Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court
By: Caterina Moritz Gutierrez, Deputy Clerk Gregory R. Rauch, ISB # 7389 Magyar, Rauch & Associates, PLLC 326 E 6th Street Moscow Idaho 83843
Tel: (208) 882-1906
Fax: (208) 882-4540 nppd@mralegal.com Attorneys for Petitioner
IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE
OF IDAHO, IN AND FOR THE COUNTY OF ADA

BRYAN KOHBERGER, Case No.: CV01-26-15094 Petitioner, AFFIDAVIT OF GREGORY R. RAUCH
IN SUPPORT OF MOTION TO

VS. DISQUALIFY JUDGE FOR CAUSE

STATE OF IDAHO,

Respondent.

STATE OF IDAHO)

) ss.

County of Latah) I, Gregory R. Rauch, being first duly sworn upon my oath, depose and say:
1. I am counsel of record for Petitioner Bryan C. Kohberger in this post-conviction proceeding. I make this Declaration pursuant to I.R.C.P. 40 (b) (2) in support of Petitioner's Motion to Disqualify Judge for Cause.

2. The specific ground for disqualification is I.R.C.P. 40 (b) (1) (D). Petitioner contends that the circumstances identified below, considered cumulatively, support disqualification for cause and / or voluntary disqualification for the reasons explained in the accompanying memorandum.

3. Attached as Exhibit 1 is a true and correct copy of the unsealed portions of the June 18, 2025, transcript of proceedings concerning Defendant's Motion to Continue and alternative-perpetrator matters.

4. Attached as Exhibit 2 is a true and correct copy of the relevant portions of the July 2, 2025, change-of-plea hearing and July 23, 2025, sentencing transcript.

1

5. Attached as Exhibit 3 is a true and correct copy of Defendant's May 20, 2025, Motion to Continue.

6. Attached as Exhibit 4 is a true and correct copy of the June 26, 2025, public Memorandum Decision and Order denying Defendant's Motion to Continue.

7. Before entry of Kohberger's guilty pleas, trial counsel represented to the Court that substantial discovery review and investigation remained incomplete and that additional time was necessary to provide constitutionally adequate representation.

8. On June 26, 2025, the Court denied the requested continuance and made the findings and statements reflected in Exhibit 4.

9. Six days later, on July 2, 2025, Kohberger entered guilty pleas before Judge Hippler.

10. At sentencing on July 23, 2025, Judge Hippler made the statements concerning Kohberger's capacity for truthfulness and general character reflected in Exhibit 2.

I declare under penalty of perjury pursuant to the laws of the State of Idaho that the foregoing is true and correct. M DATED this 27th Day of August 2026.

Gregory Rauch Attorney for Petitioner SWORN AND SUBSCRIBED to before me on this 27th Day of August 2026 RUCK NOTARY PUBLIC in and for the State
MATT E

NOTARY PUBLIC of Idaho, residing in Moscow.

COMMISSION My commission expires: 10-01-2026.

10-1-2026
MY EXPIRES 20203877

IDAHO

STATE OF NUMBER

COMMISSION

2

CERTIFICATE OF SERVICE

I hereby certify that on the 27th Day of August 2026 I caused a true and correct copy of the foregoing to be served on the following in the manner indicated below:
Prosecutor: () U.S. Mail Latah County Prosecutor's Office () Overnight Mail
Email: paservice@latahcountyid.gov (X) Odyssey () e-mail () Courthouse Mail
MAGYAR, RAUCH & ASSOCIATES, PLLC

By: / S / Matt Ruck Matt Ruck, Paralegal to Mr. Rauch 3

EXHIBIT 1

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,) ) V.) Case No: CR01-24-31665 )
BRYAN C. KOHBERGER,

Defendants.)

TRANSCRIPT OF OPEN / CLOSED PROCEEDINGS

BEFORE THE HONORABLE STEVEN HIPPLER

June 18, 2025
12:40 P.Μ.

CERTIFIED TRANSCRIPT

Page: 1 70
Stenographer: Christie Valcich, CSR-RPR

1 APPEARANCES

2
3 FOR THE STATE:

4 William W. Thompson, Jr.

5 Ashley S. Jennings Joshua D. Hurwit 6 Latah County Prosecutor's Office Latah County Courthouse 7 522 S. Adams Street, Suite 211 Moscow, Idaho 83843 8 Jeffery D. Nye 9 Madison Allen Office of the Attorney General 10 700 W. Jefferson Street Boise, Idaho 83720 11 12 13
FOR THE DEFENDANT:

14 15 Anne C. Taylor Anne Taylor Law, PLLC 16 P.O. Box 2347 Coeur d'Alene, Idaho 83816 17 Elisa G. Massoth, PLLC 18 Attorney at Law P.O. Box 1003 19 Payette, Idaho 83661 20 Bicka Barlow (Pro Hac Vice) 2358 Market Street 21 San Francisco, CA 94114 22 23 24 25 2

1 WEDNESDAY, JUNE 18, 2025

2 BOISE, IDAHO

3 4 THE COURT: This is CR01-24-31665, 5 State v. Kohberger. For the State, we have Mr. Thompson 6 and Mr. Hurwit. The defendant is present with counsel, 7 Ms. Taylor, Ms. Massoth, and Ms. Barlow.

8 This is the time set for or at least 9 the public portion of today's hearing is set for the 10 motion to continue the trial filed by the defense.

11 So we'll start with that.

12 MS. TAYLOR: Good afternoon, Your Honor.

13 Your Honor, our motion to continue has 14 been filed and is necessary to protect Bryan 15 Kohberger's rights under the United States 16 Constitution and the Constitution of the State of 17 Idaho. Specifically, a continuance is necessary to 18 protect his due process rights, his rights to a fair 19 trial, his rights to effective assistance of counsel, 20 his rights to confrontation, Mr. Kohberger's right to 21 present a full defense, and, if it should come to it, 22 a fair sentencing hearing and to be free from cruel 23 and unusual punishment.

24 The record of this case spans two and a 25 half years, and it shows that this request does not 3

1 come as a surprise. Looking through the history of 2 this case shows that the defense has met challenges 3 and difficulties along the way but has been dedicated 4 in meeting all of the deadlines.

5 We have talked about the discovery 6 issues in this courtroom before, and that, in large 7 part, brings us to need a continuance. 68 terabytes 8 of information is a huge amount of information. There 9 have been three requests for additional discovery over 10 the span of two and a half years and seven motions to 11 compel.

12 When I say that this doesn't come as a 13 surprise, that this comes from the record, I would 14 direct the Court to look back to May of 2023 and June 15 of 2023 and our second motion to compel. Included in 16 that was what was known as Exhibit A from the Defense, 17 and that depicted how we were receiving discovery.

18 So this is not a new issue. This is 19 something that has been coming up for a long time. We 20 were receiving discovery, but it was such that you 21 would get a file that would say hundreds of 22 photographs, hundreds of pages of reports, each having 23 to be looked at individually to know what was there 24 and then organized.

25 This case has also faced unique issues, 4

1 starting with the media coverage of this high-profile 2 case, non-dissemination orders that were addressed in 3 court, and then the grand jury materials we had to 4 fight to get access to before we could properly 5 challenge the grand jury indictment.

6 We faced issues with discovery, 7 particularly with the IGG materials. We spent a great 8 deal of time trying to get access to those materials.

9 Ultimately, what we could get was ultimately presented 10 in a motion to suppress, and that's preserved should 11 there be a conviction in this case.

12 We faced venue issues in this case, 13 culminating in the change of venue bringing us to Ada 14 County. At the first hearing in this courtroom, we 15 discussed the discovery issues and not having read 16 everything and being ready with a full investigation 17 in this case. That was apparent through our motions 18 to strike the death penalty, our motions to compel 19 expert disclosures filed in September and December of 20 2024, and requests for more time to file our motions 21 in limine that was granted in January of 2025.

22 Throughout the course of the motions in 23 limine and then a motion to strike death based on 24 discovery issues in February and March of this year, 25 the record is replete with notice that we are not 5

1 prepared to go to trial in this case. The discovery 2 is vast, and we have not had a chance to review it 3 all.

4 That we met deadlines for experts shows 5 our dedication to comply with the Court's orders; it 6 does not depict effective counsel ready to go to trial 7 on this case.

8 We'd submit it's the Court's 9 responsibility to assess this motion to continue with 10 heightened due process that's required in death 11 penalty cases.

12 Death penalty case is different. That 13 comes from Ford v. Wainwright, 477 U.S. 399, at 411.

14 The Court must be sensitive to safeguard every avenue 15 of due process. The Idaho Supreme Court said, " The 16 qualitative difference between death and other 17 penalties calls for a greater degree of reliability 18 when death is imposed. " And that comes from State v.

19 Creech, 105 Idaho 362, at 383.

20 Looking at all of the constitutional 21 rights Mr. Kohberger has, effective assistance of 22 counsel really becomes the crux of how all of these 23 other rights are covered for Mr. Kohberger. Effective 24 assistance of counsel applies both to the merits phase 25 and the penalty phase of a death penalty case. Courts 6

1 are guided and counsel is guided by the American Bar 2 Association guidelines on capital cases. Wiggins v.

3 Smith, 558 U.S. 510, at 524, says, " The ABA guidelines 4 are guides to determine what is reasonable, " and that 5 is talking about reasonable performance by defense 6 counsel in a capital case. The Ninth Circuit in 7 Andrews v. Davis at 944 F.3d 1092, at 1109, relies on 8 the ABA guidelines as the proper measure to test an 9 attorney's investigation.

10 In Idaho, our public defender statutes 11 reference the ABA guidelines as applying to indigent 12 defense. These apply to the full investigation of the 13 merits phase and require us to raise all legal claims.

14 They require us to perform a background on all 15 witnesses that might be called, especially those being 16 called by the State.

17 That means that we have to review all 18 discovery to be able to present a full defense for 19 Mr. Kohberger. We cannot present what we are not 20 aware of. I would note for the Court that discovery 21 has been ongoing. I received discovery just this 22 week. It is discovery that I have not reviewed yet.

23 Considering what is required at a 24 penalty phase in a capital case, we're required to 25 perform in a way that the jury can carry out their 7

1 function of individualized sentencing. That means 2 that Mr. Kohberger's background has to be known and 3 investigated and ready to present to the jurors;
4 evidence of his character has to be known and ready to 5 present to the jurors; and his circumstances have to 6 be known and ready to present to the jurors.

7 That is addressed in the Woodson case 8 and in the Lockett case. The jury must have the 9 opportunity to consider all evidence that may weigh 10 against the death penalty, and that means anything 11 from his life history. It is the duty of the defense 12 to find and investigate all mitigating information.

13 We do have several experts that would 14 be ready for the mitigation portion of the case should 15 the case reach that phase, and they rely on 16 understanding the family history and Mr. Kohberger's 17 own history. They can only understand what they have 18 been presented, and the investigation to fully 19 evaluate needs to be thorough. That means that 20 records have to be collected, that means that 21 interviews, collateral interviews have to be done, and 22 those have not all been completed. And it's not 23 because of the lack of diligence in this case.

24 Further, when things that are noted as 25 red flags arise, those things must be investigated.

8

1 Red flags aren't fanciful ideas of what else could we 2 do in this case; they're real things that come up in 3 the course of the investigation, and whether or not 4 they're important to mitigation and presentation for a 5 jury's consideration requires time to investigate and 6 collect records. Documentation is very important.

7 The Court is aware that red flags have 8 come up and they require further investigation. Those 9 are issues that may mean a lot to the experts that 10 would be ready to testify, but they can't be presented 11 until there's a full investigation. They are things 12 that might change the course of the evaluation or 13 might require us to have an additional expert to help 14 explain certain circumstances, and that is important 15 for the individualized sentencing that's required by 16 the Constitution.

17 Your Honor, there have been numerous 18 challenges with gathering records and interviewing 19 collateral witnesses. I know the Court is aware of 20 some of those particular issues, I'm not going to 21 highlight them now, but it's imperative that we be 22 able to collect records and conduct interviews from 23 other family members besides just Mr. Kohberger and 24 his parents. And it is also imperative that his 25 history be complete with educational records, medical 9

1 records, and those things are still being done to this 2 day.

3 The other reason that a continuance is 4 appropriate in this case is based on the media 5 coverage, the Dateline issue that has been talked 6 about in this courtroom before, and what is yet to 7 come. The Dateline episode wasn't just a one-time 8 deal back in May. That continues to be talked about.

9 Everything that happens in this case continues to be 10 talked about, and this Court has a duty, a 11 responsibility to make sure that Mr. Kohberger 12 receives a fair trial. That comes from Sheppard v.

13 Maxwell, 384 U.S. 333. And a continuance may be the 14 way that the Court can best protect Mr. Kohberger.

15 That comes from Patton v. Yount, 467 U.S. 1025.

16 In addition to what is going on with 17 what happened with the Dateline episode, that's not 18 all. There's a book set to be released a few weeks 19 from now, to be followed by a docuseries on Amazon 20 Prime. There's a claim that there's inside sources 21 that provide information in this case.

22 At the very least, the moment we start 23 attempting to select a jury in this case, those things 24 are going to be on everybody's TV, everybody's social 25 media feed, and some of the very witnesses that will 10

1 be expected to testify will be taking part, in the 2 docuseries at least, and may be noted in the book.

3 That is, in and of itself, an exceptional reason for 4 us to have a continuance to let those things play out 5 for a while.

6 I would also note, Your Honor, that 7 jury selection is going to be particularly challenged 8 and we'll need a great deal of time based on what has 9 happened in the media and continues to happen.

10 Your Honor, our request is for a 11 continuance in this matter to allow us to be effective 12 and perform our constitutional duty for Mr. Kohberger 13 to protect his constitutional rights, to make sure 14 that we have fully investigated all mitigating 15 circumstances so the jury, if it comes to it, can 16 perform their individualized sentencing, judgment and 17 function and to allow some space between what has 18 recently happened in the media.

19 Thank you.

20 MR. HURWIT: May I, Your Honor?

21 THE COURT: Of course.

22 MR. HURWIT: Thank you, Your Honor.

23 I will, I think, address Ms. Taylor's 24 argument sort of in the reverse order in which she 25 raised the issues she raised. I want to begin, 11

1 though, by bringing us and the Court back to what the 2 standard is for this motion to continue, as opposed to 3 what may happen after a conviction with respect to 4 ineffective assistance of counsel.

5 Right now the standard is whether 6 denying a continuance would violate the defendant's 7 rights by causing unfair prejudice. That is the 8 objective standard the Court has, and the Court has 9 discretion on all motions to continue, including 10 motions to continue in a case such as this that 11 involves the death penalty.

12 What the defendant and counsel are 13 asking the Court to do is delay this trial because of 14 their subjective prospective beliefs about how an 15 ineffective assistance of counsel evaluation would 16 happen by an appeals court if there were a conviction.

17 What this Court should do is use its 18 discretion and look at the objective record. The 19 record supports denying the motion based on what the 20 Defense has been doing, continues to do, and will 21 continue to do through the mitigation phase until the 22 penalty phase, including presenting mitigation 23 evidence that the jury will ultimately decide about if 24 there's a conviction. The lens through which the 25 Court should look at this motion is well stated in 12

1 some Idaho case law and others.

2 If I can turn on the Elmo. Do I need 3 to hit this button, Your Honor?

4 THE COURT: The clerk needs to switch it over.

5 MR. HURWIT: These are cases we cited in our 6 brief, and I wanted to start my discussion with them.

7 I'll read the top case, which is an Idaho Supreme Court 8 case evaluating whether counsel is effective in a death 9 penalty case.

10 " Counsel is not required to investigate 11 Defendant's entire life in order to objectively and 12 reasonably present mitigation evidence. " 13 And then I like the way that the 14 Seventh Circuit sort of rephrased the same principle 15 by saying and I won't read the entire quote, Your 16 Honor, but a scorch-the-earth strategy is not 17 required. We are in a standard of reasonableness, and 18 the record that is before the Court and I'll 19 acknowledge we have not seen what specifics, if any, 20 the Defense has put forward in its ex parte filing - 21 THE COURT: It makes it kind of hard for you, I 22 recognize.

23 MR. HURWIT: It does. We have not seen 24 specifics. I did not hear any specifics from counsel 25 just now about these witnesses need to be contacted, 13

1 these records need to be obtained. And then the Court, 2 I think, mentioned at a prior hearing it had when this 3 motion to continue was first raised that the Court would 4 be looking at what admissible evidence the Defense needs 5 to obtain and what strategies would actually be used to 6 fruitfully obtain that evidence. And we don't have 7 anything that we can respond to about that, so I'm at a 8 bit of a disadvantage, Your Honor. But I think the 9 record we do have shows that the Court can use its 10 discretion to deny this motion to continue.

11 What we did in our response brief, 12 Your Honor, was to cite the fact that the Defense has 13 identified 55 defense witnesses for mitigation and 14 I think one was recently added, so we're up to 56 15 and 132 exhibits to use at the mitigation phase. And 16 with respect to the ABA standards, we're not saying 17 the Court should completely ignore them, but what we 18 are saying is that the Court should look at them for 19 what they are, which is a retrospective tool for 20 appellate courts to look at the performance of counsel 21 after a conviction, not some checklist that needs to 22 be religiously adhered to in order to actually get to 23 trial.

24 Even if the Court were to rely on them 25 heavily, though, the charts that we put together show 14

1 that for each of the ABA guideline's categories the 2 Defense has raised, we have seen evidence in the 3 record that shows that they have witnesses to talk 4 about those issues, and they have discovery on those 5 issues themselves. Now, the defense has called that 6 superficial, but we would ask the Court to look at the 7 tables and look at the witnesses that we've been able 8 to identify for each category and also the discovery 9 in the record.

10 So, Your Honor, again, we think that 11 given legal standards here on a motion to continue, 12 given the Court's discretion, given that we are in a 13 world where the Court needs to satisfy itself that the 14 Defense has done a reasonable job to prepare for 15 trial, there's no basis