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Mega Edition: Bryan Kohberger And The Battle Over The Continuance (10/1/26) · Beyond The Horizon

• 0:00
  Speaker 1: What's up everyone and welcome back to the program. The
• 0:03
  Speaker 1: recent news in Moscow that information was leaked to Dateline
• 0:08
  Speaker 1: has thrown things into chaos when it comes to the
• 0:11
  Speaker 1: trial of Brian Kohlberger. Well now, right on the back
• 0:16
  Speaker 1: end of that information being leaked to Dateline, Brian Kohlberger
• 0:21
  Speaker 1: has now filed a motion for a stay. Meaning that
• 0:25
  Speaker 1: he wants a delay in the proceedings so that he
• 0:27
  Speaker 1: and his team can go through all this information and
• 0:31
  Speaker 1: make sure that he's getting a fair trial. So in
• 0:33
  Speaker 1: this episode, we're going to dive into that motion and
• 0:36
  Speaker 1: see what Brian Kohlberger and his team are asking of
• 0:41
  Speaker 1: the judge and the court. Case number CR01-24-31665. State of
• 0:45
  Speaker 1: Idaho plaintiff. First Brian C. Kohlberger, the defendant. Motion accepted.
• 0:54
  Speaker 1: to continue. Comes now, Brian C. Koberger by and through
• 0:59
  Speaker 1: his attorneys of record, and hereby respectfully submits the following
• 1:02
  Speaker 1: motion to continue, due to the substantial amount of trial
• 1:06
  Speaker 1: investigation and reparations still outstanding, as well as recent and
• 1:11
  Speaker 1: forthcoming publicity that is highly prejudicial to the defense. Any
• 1:15
  Speaker 1: conviction and sentence resulting from a capital trial beginning in
• 1:19
  Speaker 1: August of 2025 will be unconstitutionally imposed, and therefore vulnerable
• 1:25
  Speaker 1: to reversal on direct or collateral review.
• 1:52
  Speaker 1: and 14th Amendments to the United States Constitution, Article 1,
• 1:56
  Speaker 1: Section 6, 7, 8, and 13 of the Idaho Constitution.
• 2:02
  Speaker 1: The Argument 1. This court has an obligation to uphold Mr.
• 2:07
  Speaker 1: Koberger's constitutional rights by vacating the trial date because defense
• 2:11
  Speaker 1: counsel needs additional time to review discovery and prepare for
• 2:15
  Speaker 1: the complex merits and sentencing phases unique to death penalty cases.
• 2:21
  Speaker 1: The court has an obligation to enforce the constitutional rights
• 2:24
  Speaker 1: of all persons, including prisoners, Brown v. Plata, 563, 2011.
• 2:29
  Speaker 1: See also Robb v. Connolly, 1884. Upon the state courts,
• 2:36
  Speaker 1: equally with the courts of the Union, rests the obligation
• 2:39
  Speaker 1: to guard, enforce, and protect every right granted or secured
• 2:43
  Speaker 1: by the Constitution of the United States and the laws
• 2:46
  Speaker 1: made in pursuance thereof. As detailed in this motion, moving
• 2:51
  Speaker 1: forward with the capital trial in August will infringe upon Mr.
• 2:55
  Speaker 1: Kohlberger's constitutional rights as counsel requires more time to review discovery,
• 3:01
  Speaker 1: complete investigations, and prepare for trial. When considering this request
• 3:06
  Speaker 1: for a continuance, the court must weigh the issues against
• 3:09
  Speaker 1: the heightened need for reliability in death penalty cases. See
• 3:12
  Speaker 1: Woodson v. Carolina, 4-28-1976. This elevated standard... is essential because
• 3:20
  Speaker 1: execution is the most irreversible and profound penalty. Indeed, death
• 3:25
  Speaker 1: is different. Ford v. Wainwright, 1986 When the state seeks
• 3:31
  Speaker 1: the death penalty, it imposes an extraordinary burden upon the court, itself,
• 3:35
  Speaker 1: and the defense counsel to ensure the fairness, accuracy, and
• 3:39
  Speaker 1: reliability of the trial and any subsequent sentencing proceeding. With
• 3:44
  Speaker 1: a defendant's life at stake, the trial court, must be
• 3:48
  Speaker 1: particularly sensitive to ensure that every safeguard is observed. Greg v. Georgia,
• 3:54
  Speaker 1: 428 U.S., 1976, and must take extraordinary measures to ensure
• 4:01
  Speaker 1: that a death sentence is reliably imposed rather than imposed
• 4:05
  Speaker 1: out of whim, passion, prejudice, or mistake. Eddings v. Oklahoma, 1982.
• 4:13
  Speaker 1: Justice O'Connor's concurrence in Thompson v. Oklahoma, 1988, reinforces the
• 4:18
  Speaker 1: idea that trial courts must apply heightened scrutiny to decisions
• 4:22
  Speaker 1: potentially leading to a death sentence. Among the most important
• 4:29
  Speaker 1: and consistent themes in the court's death penalty jurisprudence is
• 4:33
  Speaker 1: the need for special care and deliberation in decisions that
• 4:37
  Speaker 1: may lead to the imposition of the death penalty. The
• 4:40
  Speaker 1: Idaho Supreme Court, too, has emphasized the special safeguards and
• 4:45
  Speaker 1: stringent due process protections that must be afforded in capital cases.
• 4:50
  Speaker 1: CEG State v. Creech, Idaho 362, 1983. The qualitative differences
• 4:58
  Speaker 1: between death and other penalty calls for a greater degree
• 5:01
  Speaker 1: of reliability when the death sentence is imposed. Emphasis in
• 5:07
  Speaker 1: original citing Lockett v. Ohio, 438 U.S. 586, 1978. Because
• 5:15
  Speaker 1: proceeding to a capital trial prematurely is a decision that
• 5:18
  Speaker 1: may lead to the erroneous imposition of the ultimate sanction,
• 5:22
  Speaker 1: this court must consider and assess this motion under a
• 5:26
  Speaker 1: heightened standard of due process. 2. Mr. Koberger has a
• 5:30
  Speaker 1: myriad of constitutional rights during these proceedings, all of which
• 5:34
  Speaker 1: are dependent on counsel having the time and resources to
• 5:38
  Speaker 1: prepare for a capital trial in accordance with established professional norms. a.
• 5:44
  Speaker 1: In capital cases, the rights to effective assistance of counsel
• 5:48
  Speaker 1: and a complete defense are amplified. The Sixth Amendment entitles Mr.
• 5:54
  Speaker 1: Kohlberger to the effective assistance of counsel at both the
• 5:57
  Speaker 1: merits and penalty phases of this capital case. Additionally and noncommittally,
• 6:04
  Speaker 1: as part of the Sixth Amendment guarantee, as well as
• 6:07
  Speaker 1: his right to due process as protected by the Fourteenth Amendment, Mr.
• 6:11
  Speaker 1: Kohlberger is entitled to a sufficient amount of time to
• 6:14
  Speaker 1: allow counsel to adequately prepare for trial and sentencing. See
• 6:19
  Speaker 1: Powell v. Alabama, 1932. A defendant charged with a serious
• 6:24
  Speaker 1: crime must not be stripped of his right to have
• 6:27
  Speaker 1: a sufficient time to advise with counsel and prepare his defense. U.S. v. Ash, 1973.
• 6:35
  Speaker 1: Powell made clear that in order to preserve the accused's
• 6:38
  Speaker 1: right to a fair trial and to effective and substantial
• 6:41
  Speaker 1: assistance of counsel at the trial, The Sixth Amendment guarantee
• 6:45
  Speaker 1: necessarily encompasses a reasonable period of time before trial during
• 6:50
  Speaker 1: which counsel might prepare the defense. The Supreme Court has
• 6:56
  Speaker 1: recognized that depriving a person of counsel during the period
• 6:59
  Speaker 1: prior to trial may be more damaging than denial of
• 7:02
  Speaker 1: counsel during the trial itself. Maine v. Moulton 474 U.S.
• 7:05
  Speaker 1: 159 170 1985 In a capital case, counsel must meet
• 7:07
  Speaker 1: specific professional obligations to be constitutionally effective. The ABA guidelines
• 7:19
  Speaker 1: outline the professional expectations and obligations for counsel in death
• 7:23
  Speaker 1: penalty cases. These guidelines are not merely aspirational. They represent
• 7:29
  Speaker 1: the current consensus on what is necessary for effective representation
• 7:33
  Speaker 1: in capital cases. The Supreme Court has consistently referred to
• 7:38
  Speaker 1: the ABA guidelines to determine the prevailing professional norms for
• 7:42
  Speaker 1: counsel's performance. For example, in Wiggins v. Smith, 2003, the
• 7:47
  Speaker 1: court explained that the ABA guidelines for capital defense serve
• 7:51
  Speaker 1: as guides to determining what is reasonable and represent well-defined norms. Similarly,
• 7:57
  Speaker 1: in Rompia v. Beard, 545 U.S. 374-387, 2005, The court
• 8:05
  Speaker 1: emphasized that it's the lawyer's duty to conduct a thorough
• 8:09
  Speaker 1: investigation of the case's circumstances and explore all avenues leading
• 8:13
  Speaker 1: to facts relevant to the case's merits and the penalty
• 8:17
  Speaker 1: of convicted, citing the ABA Standards for Criminal Justice 4-4.1,
• 8:23
  Speaker 1: 2nd Edition, 1982. The Ninth Circuit, which would review any
• 8:28
  Speaker 1: death sentence arising out of Idaho state courts, has also
• 8:32
  Speaker 1: repeatedly relied on the ABA Guidelines to and expressly recognize
• 8:36
  Speaker 1: the Guidelines as a proper measure of the adequacy of
• 8:39
  Speaker 1: an attorney investigation. Andrew v. Davis, 944 F. 3d, 1092 9th Circuit,
• 8:49
  Speaker 1: 2019 American Bar Association Standards and the Like are Evidence
• 8:53
  Speaker 1: of Those Norms and Guides to Determining What is Reasonable
• 8:58
  Speaker 1: The 9th Circuit is not an anomaly. More than 700
• 9:01
  Speaker 1: capital case opinions cite the ABA Guidelines. see American Bar
• 9:05
  Speaker 1: Association Death Penalty Representation Project List of Opinions, citing the
• 9:10
  Speaker 1: ABA Guidelines for Capital Defense. In addition to the effective
• 9:15
  Speaker 1: assistance of counsel, Mr. Kohlberger has the right to a
• 9:18
  Speaker 1: meaningful opportunity to present a complete defense, Holmes v. South Carolina,
• 9:23
  Speaker 1: 547 U.S. 2006, see also Crane v. Kentucky, 476 1986,
• 9:32
  Speaker 1: noting the existence of a fundamental constitutional right to a
• 9:35
  Speaker 1: fair opportunity to present a defense. California v. Trombetta, 467 U.S.,
• 9:42
  Speaker 1: 1984 Under the Due Process Clause of the Fourteenth Amendment,
• 9:46
  Speaker 1: criminal prosecutions must comport with prevailing notions of fundamental fairness.
• 9:52
  Speaker 1: We have long interpreted this standard of fairness to require
• 9:56
  Speaker 1: that criminal defendants be afforded a meaningful opportunity to present
• 10:00
  Speaker 1: a complete defense. This right has a number of sources,
• 10:04
  Speaker 1: including the Due Process Clause of the 14th Amendment, as
• 10:07
  Speaker 1: well as the Compulsory Process and Confrontation Clauses of the
• 10:11
  Speaker 1: 6th Amendment. This right takes on special significance in capital cases,
• 10:16
  Speaker 1: the right to present a meaningful defense, must take precedent
• 10:20
  Speaker 1: over any countervailing state evidentiary rules or other procedures that
• 10:25
  Speaker 1: might be acceptable in the context of non-capital criminal cases. C.E.G. Holmes,
• 10:30
  Speaker 1: 547 U.S. at 330. Finding that South Carolina's state rule,
• 10:35
  Speaker 1: which had been in place for more than 60 years,
• 10:38
  Speaker 1: unconstitutionally infringed upon capital defendants, right to present a complete defense.
• 10:44
  Speaker 1: Kaspari v. Bolden, 510 U.S., 1994. Time and again, the
• 10:50
  Speaker 1: Supreme Court has condemned procedures in capital cases that might
• 10:54
  Speaker 1: be completely acceptable in an ordinary case. All right, we're
• 10:58
  Speaker 1: going to wrap up right here. And in the next episode,
• 11:00
  Speaker 1: we're going to pick up with B. Mr. Koberger is
• 11:03
  Speaker 1: also entitled to an individualized sentencing determination, a constitutional right
• 11:08
  Speaker 1: that is uniquely reserved for defendants facing the death penalty.
• 11:14
  Speaker 1: All of the information that goes with this episode can
• 11:16
  Speaker 1: be found in the description box. What's up everyone and
• 11:20
  Speaker 1: welcome back to the program. In this episode we're picking
• 11:23
  Speaker 1: up right where we left off with Brian Kohlberger's motion
• 11:27
  Speaker 1: to continue. B. Mr. Kohlberger is also entitled to an
• 11:32
  Speaker 1: individualized sentencing determination, a constitutional right that is uniquely reserved
• 11:37
  Speaker 1: for defendants facing the death penalty. Because the prosecution is
• 11:42
  Speaker 1: seeking to execute him, Mr. Kohlberger has additional constitutional rights
• 11:47
  Speaker 1: in this proceeding. The Eighth Amendment requires that a capital
• 11:51
  Speaker 1: sentencing proceeding permit individualized consideration of the defendant and the
• 11:56
  Speaker 1: circumstances of the offense. Woodson 428 U.S. 304 Holding that
• 12:01
  Speaker 1: consideration of the character of the defendant is a constitutionally
• 12:05
  Speaker 1: indispensable part of the process of inflicting the penalty of death.
• 12:10
  Speaker 1: Roberts v. Louisiana, 428, 325, 332-36, 1976. Holding that the
• 12:18
  Speaker 1: state's mandatory death sentencing statute was unconstitutional because it did
• 12:23
  Speaker 1: not permit the sentencer to make individualized determinations to assess
• 12:27
  Speaker 1: degrees of culpability. Parker v. Duggar, 498 U.S., 1991. holding
• 12:34
  Speaker 1: that petitioner was deprived of his due process and Eighth
• 12:37
  Speaker 1: Amendment rights to individualized sentencing where the appellate court failed
• 12:42
  Speaker 1: to consider all mitigating evidence. As the Supreme Court noted
• 12:46
  Speaker 1: in Emin v. Florida, 458, 1982, we insist on individualized
• 12:52
  Speaker 1: consideration as a constitutional requirement in imposing the death sentence,
• 12:57
  Speaker 1: which means that we must focus on relevant facets of
• 13:00
  Speaker 1: of the character and record of the individual offender. The U.S.
• 13:05
  Speaker 1: Supreme Court has repeatedly emphasized that, in capital case, a
• 13:09
  Speaker 1: jury must be given the opportunity to consider all evidence
• 13:13
  Speaker 1: that may weigh against death sentence for any particular offender.
• 13:18
  Speaker 1: This evidence includes anything at all from the defendant's life
• 13:21
  Speaker 1: history and cannot be limited. See Lockett 438 U.S. 604-609
• 13:25
  Speaker 1: explaining that a sentencer may not be precluded from considering,
• 13:32
  Speaker 1: as a mitigating factor, any aspect of the defendant's character
• 13:36
  Speaker 1: or record and any of the circumstances of the offense
• 13:40
  Speaker 1: that the defendant proffers as a basis for the sentence
• 13:44
  Speaker 1: less than death. Bell v. Ohio, 438, 1978. Reversing death
• 13:50
  Speaker 1: sentence because statute precluded consideration of facts and circumstances proffered
• 13:55
  Speaker 1: as mitigating circumstances. Green v. Georgia. 442 U.S. 95, 1979.
• 14:03
  Speaker 1: Finding unconstitutional the exclusion of evidence at sentencing phase based
• 14:08
  Speaker 1: upon Georgia's hearsay rule. Eddings v. Oklahoma, 455 U.S. 104, 1982.
• 14:17
  Speaker 1: Finding that it was a constitutional error for sentencing court
• 14:20
  Speaker 1: to conclude that it could not consider the defendant's turbulent
• 14:24
  Speaker 1: family history as a mitigating factor in deciding punishment. Skipper v.
• 14:28
  Speaker 1: South Carolina 476-1-1986, holding that it was unconstitutional violation of
• 14:36
  Speaker 1: locket for the trial court to exclude evidence that defendant
• 14:40
  Speaker 1: had adjusted well to incarceration between arrest and trial. Penry v.
• 14:45
  Speaker 1: Linaw 492-US-302-1989, vacating death sentence because trial court's instructions to
• 14:53
  Speaker 1: the jury did not allow the jury to consider as
• 14:56
  Speaker 1: a mitigating factor evidence of the defendant's mental retardation and
• 15:00
  Speaker 1: childhood abuse. Penry v. Johnson 532 U.S. 2001 finding that
• 15:07
  Speaker 1: Texas three-question sentencing format in light of jury instruction and
• 15:11
  Speaker 1: all circumstances of case did not adequately allow the jury
• 15:15
  Speaker 1: to consider mitigating evidence of mental retardation. Tenard v. Dretke
• 15:21
  Speaker 1: 542 U.S. 2004 finding Relevant mitigating evidence is evidence which
• 15:26
  Speaker 1: tends logically to prove or disprove some fact or circumstance
• 15:31
  Speaker 1: which a fact finder could reasonably deem to have mitigating value. Thus,
• 15:36
  Speaker 1: a state cannot bar the consideration of evidence if the
• 15:39
  Speaker 1: life sentencer could reasonably find that it warrants a sentence
• 15:42
  Speaker 1: less than death. When a jury is denied relevant mitigating
• 15:46
  Speaker 1: evidence either because counsel independently fails to conduct a complete
• 15:50
  Speaker 1: investigation or because the court denies the defense counsel adequate
• 15:54
  Speaker 1: time or resources to conduct such an investigation, the defendant's
• 15:59
  Speaker 1: rights under the 6th, 8th, 14th Amendments of the U.S. Constitution,
• 16:04
  Speaker 1: as well as the corollary guarantees in the Idaho Constitution
• 16:07
  Speaker 1: are violated, and any resulting death sentence cannot stand. Thus,
• 16:12
  Speaker 1: individualized sentencing requires the presentation of mitigation evidence that is
• 16:18
  Speaker 1: properly investigated, documented, and presented with the help of appropriate experts.
• 16:24
  Speaker 1: as detailed further below. This process is comprehensive, time-consuming, and
• 16:29
  Speaker 1: expensive undertaking, but it is also what our Constitution demands
• 16:33
  Speaker 1: when the government seeks to extinguish human life. c. The
• 16:38
  Speaker 1: right to qualified expert assistance as part of the guarantees
• 16:42
  Speaker 1: to effective assistance of counsel and to an individualized sentencing proceeding,
• 16:47
  Speaker 1: in line with the heightened protections afforded to capital defendants
• 16:50
  Speaker 1: and stemming from both right's to a meaningful opportunity to
• 16:54
  Speaker 1: present a complete defense, Holmes, 547 U.S. at 324, and
• 16:59
  Speaker 1: to due process, Aki v. Oklahoma. Capital defendants are entitled
• 17:04
  Speaker 1: to necessary expert assistance. Indeed, expert assistance is needed in
• 17:09
  Speaker 1: all homicide cases, given that investigating a homicide is uniquely
• 17:13
  Speaker 1: complex and often involves evidence of many different types. Analyzing
• 17:19
  Speaker 1: and interpreting such evidence is impossible without without consulting experts,
• 17:23
  Speaker 1: whether pathologists, serologists, microanalysts, DNA analysts, ballistic specialists, translators, or others.
• 17:31
  Speaker 1: ABA Guidelines 31 Hofstra Revised Edition at 955. However, in
• 17:38
  Speaker 1: a case where the prosecution elects to seek the death penalty,
• 17:41
  Speaker 1: the right to access competent expert assistance is particularly important.
• 17:46
  Speaker 1: given that the prosecution and the defense rely more extensively
• 17:49
  Speaker 1: on experts in death penalty cases than in other types
• 17:53
  Speaker 1: of criminal cases. On federal death penalty cases, on Defender
• 17:59
  Speaker 1: Services Judicial Conference of the United States, federal death penalty cases,
• 18:04
  Speaker 1: recommendations concerning the cost and quality of defense representation. Because
• 18:09
  Speaker 1: prosecutors rely extensively on experts in death penalty cases, Capital
• 18:14
  Speaker 1: defendants cannot present their claim fairly within the adversary system
• 18:19
  Speaker 1: if they do not also obtain competent expert assistance. Beyond
• 18:23
  Speaker 1: the frequent complex merits phase issues, conducting an adequate investigation
• 18:28
  Speaker 1: into sentencing phase issues in a capital case almost always
• 18:32
  Speaker 1: requires the assistance of multiple experts. See McWilliams v. Dunn, 2017,
• 18:40
  Speaker 1: explaining that when a capital defendant's mental condition is seriously
• 18:44
  Speaker 1: in question, and is relevant to the punishment he might suffer,
• 18:48
  Speaker 1: a state must provide a mental health professional capable of
• 18:51
  Speaker 1: conducting an appropriate examination and assisting in evaluation, preparation, and
• 18:57
  Speaker 1: presentation of the defense. ABA Guidelines Hofstra Revised Edition at
• 19:05
  Speaker 1: 1004 Noting that because mental health issues pervade capital cases,
• 19:09
  Speaker 1: a psychologist or other mental health expert may well be
• 19:13
  Speaker 1: needed member of the defense team, and additional expert assistance
• 19:17
  Speaker 1: specific to the case will almost always be necessary for
• 19:20
  Speaker 1: effective defense. As discussed further below in Section 3E, defense
• 19:26
  Speaker 1: counsel cannot know the full range of experts that may
• 19:28
  Speaker 1: be necessary until after the extensive social history investigation has
• 19:33
  Speaker 1: been completed. Both the identification of a mental health professional
• 19:38
  Speaker 1: necessary area of expertise and and the accuracy of the
• 19:41
  Speaker 1: expert's diagnosis is dependent on having accurate and comprehensive social
• 19:46
  Speaker 1: history information. 3. Counsel's professional and ethical obligations in a
• 19:52
  Speaker 1: capital case. A. Counsel's duty to provide effective assistance of
• 19:57
  Speaker 1: counsel in accordance with the prevailing professional norms. In order
• 20:02
  Speaker 1: to effectuate Mr. Kohlberger constitutional rights as described above, counsel
• 20:07
  Speaker 1: must at least meet the minimum professional obligations for counsel
• 20:11
  Speaker 1: on a capital case as outlined in the ABA Guidelines.
• 20:15
  Speaker 1: The ABA Guidelines require high-quality legal representation for all persons
• 20:21
  Speaker 1: facing the possible imposition of execution of a death sentence
• 20:25
  Speaker 1: by any jurisdiction. Every task ordinarily performed in the representation
• 20:31
  Speaker 1: of a criminal defendant is more difficult and time-consuming when
• 20:35
  Speaker 1: the defendant is facing execution. Due to the extraordinary and
• 20:40
  Speaker 1: irrevocable nature of the penalty at every stage of the proceedings,
• 20:44
  Speaker 1: counsel must make extraordinary efforts on behalf of the accused.
• 20:49
  Speaker 1: ID at 923, see also at 988. Recognizing the extraordinary
• 20:54
  Speaker 1: responsibilities and commitment required of counsel in death penalty cases. B.
• 21:01
  Speaker 1: Minimum requirement counsel must meet in investigating for the merits
• 21:05
  Speaker 1: phase of a capital case. With respect to investigation for
• 21:09
  Speaker 1: the merits phase, the ABA guidelines are clear that counsel
• 21:13
  Speaker 1: must be thoroughly investigating and challenging every minute and minute
• 21:17
  Speaker 1: piece of evidence the state purports to have. To assume
• 21:21
  Speaker 1: the accuracy of whatever information the client may initially offer
• 21:25
  Speaker 1: or the prosecutor may choose or be compelled to disclose
• 21:28
  Speaker 1: is to render ineffective assistance of counsel. The defense lawyer's
• 21:32
  Speaker 1: obligation is includes not only finding, interviewing, scrutinizing the backgrounds
• 21:37
  Speaker 1: of potential prosecution witnesses, but also searching for any other
• 21:41
  Speaker 1: potential witnesses who might challenge the prosecution's version of events
• 21:46
  Speaker 1: and subjecting all forensic evidence to rigorous, independent scrutiny. In
• 21:51
  Speaker 1: addition to a complete investigation of every piece of the
• 21:54
  Speaker 1: state's case, counsel is then responsible for identifying and considering
• 21:59
  Speaker 1: all legal claims potentially available, even if those claims are
• 22:02
  Speaker 1: have consistently lost in that jurisdiction. See idea 1032. Counsel
• 22:08
  Speaker 1: should object to anything that appears unfair or unjust, even
• 22:11
  Speaker 1: if it involves challenging, well-accepted practices. This is necessary because
• 22:17
  Speaker 1: counsel in capital case has a duty to preserve any
• 22:20
  Speaker 1: and all conceivable errors for each stage of appellate and
• 22:24
  Speaker 1: post-conviction review. Non-preservation of an issue at the trial level
• 22:28
  Speaker 1: may result in waiver and ultimately in a defendant's execution
• 22:32
  Speaker 1: or even if reversible error occurred. See Idea 1030, describing
• 22:37
  Speaker 1: case in which, from a joint capital trial, one co-defendant
• 22:42
  Speaker 1: was eventually executed because his counsel failed to object to
• 22:45
  Speaker 1: women being excluded from the jury, while the other co-defendant's
• 22:49
  Speaker 1: case was reversed and he is now serving life in
• 22:52
  Speaker 1: prison because his attorneys preserve the issue. This obligation places
• 22:57
  Speaker 1: a significantly higher burden on a defense counsel than in
• 23:00
  Speaker 1: a non-capital case. In an ordinary criminal case, counsel could
• 23:04
  Speaker 1: strategically forego some aspects of the exhaustive investigation outlined step-by-step
• 23:10
  Speaker 1: in the ABA guidelines and would not be required to
• 23:13
  Speaker 1: preserve every possible legal error for potential review. Furthermore, there
• 23:18
  Speaker 1: would be significant fewer legal issues to address because the
• 23:21
  Speaker 1: unique issues related to capital sentencing would be irrelevant. All right,
• 23:26
  Speaker 1: we're going to wrap up right here. And in the
• 23:28
  Speaker 1: next episode, we're going to pick up with C. Council
• 23:31
  Speaker 1: must conduct an exhaustive, unparalleled life history investigation, analyze hundreds
• 23:37
  Speaker 1: of documents and interviews, and compile all of the information
• 23:41
  Speaker 1: into a cohesive narrative for the sentencing phase. All of
• 23:45
  Speaker 1: the information that goes with this episode can be found
• 23:49
  Speaker 1: in the description box. What's up everyone and welcome back
• 23:52
  Speaker 1: to the program. Yesterday in Moscow, Judge Judge had a
• 23:56
  Speaker 1: hearing and they went over several different things. And one
• 24:00
  Speaker 1: of the issues that was on the table was when
• 24:03
  Speaker 1: this trial was going to kick off. Now, we know
• 24:06
  Speaker 1: that the prosecution, they have asked for the trial to
• 24:09
  Speaker 1: start this summer in 2024. Well, Brian Kohlberger's team, they
• 24:15
  Speaker 1: now have countered and said that they need to wait
• 24:18
  Speaker 1: until at least the summer of 2025. And that's because
• 24:22
  Speaker 1: they just have so much to go through. There is
• 24:25
  Speaker 1: so much evidence against Brian Kohlberger, obviously. that his team
• 24:29
  Speaker 1: is overwhelmed trying to go through all of it, at
• 24:32
  Speaker 1: least according to them. Now, of course, the judge is
• 24:35
  Speaker 1: going to have to weigh everything, right? He's going to
• 24:38
  Speaker 1: have to weigh the best interest of the community. He's
• 24:41
  Speaker 1: going to have to make sure that Brian Kohlberger's rights
• 24:44
  Speaker 1: are being respected. But pushing it all the way to
• 24:47
  Speaker 1: the summer of 2025, I don't know if that's going
• 24:51
  Speaker 1: to cut it. I don't know if that's going to fly. Now,
• 24:54
  Speaker 1: usually in situations like this, what you see the judge
• 24:57
  Speaker 1: do is split the baby. And that means give everybody
• 25:00
  Speaker 1: a little bit of a victory. So maybe he won't
• 25:03
  Speaker 1: have it in the summer of 2024. Maybe he'll push
• 25:08
  Speaker 1: it back to a later date in the year of 2024.
• 25:12
  Speaker 1: But I don't see it getting pushed to the summer
• 25:15
  Speaker 1: of 2025. I just don't see that happening. And if
• 25:18
  Speaker 1: that does happen, can you imagine what the family members
• 25:21
  Speaker 1: are going to have to say? They're not going to
• 25:23
  Speaker 1: be very happy about it. We've already heard from the
• 25:26
  Speaker 1: Gonsalves family who want a court date. They want this
• 25:29
  Speaker 1: trial to kick off. And that obviously has not happened yet.
• 25:33
  Speaker 1: So let's get to this article from Fox News and
• 25:36
  Speaker 1: let's get caught up. Headline, Idaho murders case. Judge to
• 25:40
  Speaker 1: consider Brian Kohlberger's attorney's request for a summer 2025 trial
• 25:45
  Speaker 1: start date. This article was authored by Michael Ruiz and
• 25:50
  Speaker 1: Luis Casiano. Latah County District Judge John C. Judge held
• 25:55
  Speaker 1: off Friday on setting a trial date for Brian Kohlberger,
• 25:59
  Speaker 1: the 29-year-old Pennsylvania criminologist accused of killing four University of
• 26:04
  Speaker 1: Idaho students in a 4 a.m. ambush in November of
• 26:08
  Speaker 1: 2022 over concerns by prosecutors and defense lawyers about the
• 26:12
  Speaker 1: time it would take to be ready for the proceeding.
• 26:16
  Speaker 1: So this is just all bad, right? Not good news
• 26:19
  Speaker 1: for anybody involved. The idea of waiting another year for
• 26:23
  Speaker 1: justice to be applied here is not one that's going
• 26:26
  Speaker 1: to be digestible for the families. But unfortunately, when we're
• 26:31
  Speaker 1: talking about the United States justice system, we all know
• 26:34
  Speaker 1: that this is what happens. There's all kinds of speed bumps.
• 26:38
  Speaker 1: There's all kinds of impediments. And unfortunately, there's all kinds
• 26:41
  Speaker 1: of stopovers on the way to justice. But pushing it
• 26:46
  Speaker 1: all the way to 2025, I think that's going to
• 26:49
  Speaker 1: be a bit much. Judge also denied a motion to
• 26:52
  Speaker 1: dismiss the quadruple murder charges against Kohlberger, citing potential delays
• 26:57
  Speaker 1: to the case, and denied a defense request to appeal
• 27:00
  Speaker 1: to the Idaho Supreme Court. Again, technicalities and loopholes. That's
• 27:04
  Speaker 1: all they have, and that's why they want this delay.
• 27:08
  Speaker 1: They know that if they go to trial now, forget it,
• 27:10
  Speaker 1: they're going to be cooked. The only problem for Brian
• 27:13
  Speaker 1: Kohlberger and his team... It doesn't matter how long they wait.
• 27:17
  Speaker 1: The evidence is going to be what the evidence is.
• 27:20
  Speaker 1: And in my opinion, when all is said and done,
• 27:21
  Speaker 1: Brian Koberger is going to be found guilty. Koberger's trial
• 27:25
  Speaker 1: had initially been scheduled for October, but his defense lawyers
• 27:28
  Speaker 1: waived his right to a speedy trial. Defense lawyers said
• 27:32
  Speaker 1: they expect the trial to last 12 to 15 weeks.
• 27:35
  Speaker 1: 12 to 15 weeks. That is a long ass time, folks.
• 27:40
  Speaker 1: Think about some of the other trials we've covered recently. Murdaugh,
• 27:44
  Speaker 1: Lori Vallow, Ghislaine Maxwell, Danny Masterson. We're usually talking about
• 27:49
  Speaker 1: six to eight weeks. 15-week trial, 12 to 15 weeks?
• 27:53
  Speaker 1: That's one hell of a time frame. And I guess
• 27:55
  Speaker 1: when you look at the evidence that has been provided already,
• 27:59
  Speaker 1: you know that there is a ton of it. So
• 28:01
  Speaker 1: behind the scenes, they must have even more, right? So
• 28:04
  Speaker 1: I could see the length of the trial being extended,
• 28:07
  Speaker 1: but still, 12 to 15 weeks? That seems like a
• 28:10
  Speaker 1: bit excessive. Latah County Prosecuting Attorney Bill Thompson's office asked
• 28:15
  Speaker 1: the court to set a summer trial date to avoid
• 28:18
  Speaker 1: interfering with parking at the neighboring high school and to
• 28:21
  Speaker 1: hold proceedings between semesters for the victim's classmates. The trial
• 28:26
  Speaker 1: date hearing happened Friday afternoon, shortly after a closed-door session
• 28:30
  Speaker 1: on other matters in the case. If we are going
• 28:34
  Speaker 1: to try this case effectively with minimal and unnecessary harm
• 28:38
  Speaker 1: of disruption to our community... It should be done during
• 28:41
  Speaker 1: the summertime, Thompson told the judge, and I agree with that.
• 28:45
  Speaker 1: It should be a summertime trial, but not the summer
• 28:47
  Speaker 1: of 2025. That's insanity. Taylor noted that a change of
• 28:52
  Speaker 1: venue isn't necessary given the case's global attention and media coverage. Hey,
• 28:57
  Speaker 1: what did I tell you at the very beginning of
• 28:59
  Speaker 1: all of this? All of the nonsense about... oh, well,
• 29:03
  Speaker 1: we have to move to a different county to find
• 29:05
  Speaker 1: a jury. No, you don't. Not this day and age.
• 29:08
  Speaker 1: Everybody has the internet. Everybody watches the news. Everybody knows
• 29:11
  Speaker 1: who Brian Kohlberger is. It doesn't matter if you go
• 29:14
  Speaker 1: to Latah County, Ada County, or insert county here. Everybody's
• 29:18
  Speaker 1: going to know who he is. So the idea is
• 29:21
  Speaker 1: to make sure that you're giving clear and concise instructions
• 29:25
  Speaker 1: to the jurors. That way they understand their responsibilities. Defense
• 29:29
  Speaker 1: attorneys requested a trial start date of sometime in the
• 29:32
  Speaker 1: summer of 2025, citing the massive amounts of evidence that's involved.
• 29:37
  Speaker 1: And look, I get it. There is a ton of evidence.
• 29:39
  Speaker 1: Like I said previously. But enough evidence that pushes it
• 29:42
  Speaker 1: to the summer of 2025? Here's an idea. Hire some
• 29:46
  Speaker 1: more paralegals. A few months from now is not a
• 29:50
  Speaker 1: sufficient amount of time, defense attorney Ann Taylor said. There
• 29:53
  Speaker 1: is no possible way I can even read or watch
• 29:56
  Speaker 1: everything I have now or react to things that are
• 29:59
  Speaker 1: still coming in if we're to have a deadline in
• 30:02
  Speaker 1: time for summer of 2024 and a trial then. So
• 30:06
  Speaker 1: she's saying that there is no way under the sun
• 30:09
  Speaker 1: that she can be ready come trial time. And I
• 30:12
  Speaker 1: guess you have to take her at, you know, face value.
• 30:15
  Speaker 1: And Taylor hasn't done anything throughout this process for me
• 30:18
  Speaker 1: to say to myself, well, she's a liar. So I'll
• 30:21
  Speaker 1: take her at face value, saying that she can't get
• 30:24
  Speaker 1: through the evidence, but at some point, where does the
• 30:27
  Speaker 1: state's rights come in? Where do the rights of the
• 30:30
  Speaker 1: victims come in? And certainly, where do the rights of
• 30:32
  Speaker 1: the victims' families come in? She said she and her
• 30:36
  Speaker 1: team recently received discovery evidence of more than 9,000 tips
• 30:40
  Speaker 1: law enforcement received after the murders. So what they're trying
• 30:44
  Speaker 1: to do with that, they'll try and muddy the waters
• 30:46
  Speaker 1: and act like there's some other suspect out there that
• 30:49
  Speaker 1: hasn't been pursued. but we all know that that's not
• 30:51
  Speaker 1: the case. Your Honor, summer of 2024, it's impossible for
• 30:55
  Speaker 1: us to do it, Taylor said. Meanwhile, Judge said he
• 30:58
  Speaker 1: needed more time to think about a start date, given
• 31:01
  Speaker 1: the differences between the prosecution and the defense. It's a
• 31:05
  Speaker 1: decision that pulls me in two different directions, Judge said.
• 31:09
  Speaker 1: I just want to let it percolate a little bit.
• 31:12
  Speaker 1: It's really hard for me to set something in 2025.
• 31:16
  Speaker 1: And I agree with that. How are you going to
• 31:18
  Speaker 1: set a date in 2025? We're talking about a crime
• 31:22
  Speaker 1: that was committed in 2022. So we're already a year
• 31:26
  Speaker 1: past now when this crime happened. And again, I get
• 31:29
  Speaker 1: that there is a lot of evidence that Ann Taylor
• 31:31
  Speaker 1: and her team have to go through. But if you
• 31:33
  Speaker 1: have to hire more help, hire more help. The state
• 31:36
  Speaker 1: of Idaho is already paying for it. A summer trial
• 31:39
  Speaker 1: with the university out of session would leave more room
• 31:42
  Speaker 1: for hotels for people visiting town for the proceedings, prosecutors argued.
• 31:47
  Speaker 1: The University of Idaho's academic calendar states shows next year's
• 31:50
  Speaker 1: spring semester ends in the second week of June. Prosecutors
• 31:54
  Speaker 1: have also asked the court for shortened days from 8.30 a.m.
• 31:58
  Speaker 1: to 3 p.m. Pacific Standard Time. So maybe that's why
• 32:02
  Speaker 1: it's going to be a little bit longer. Because usually
• 32:04
  Speaker 1: when you have one of these kinds of trials, the
• 32:07
  Speaker 1: court's in session until about 4.30 or so. So with
• 32:10
  Speaker 1: it being a shorter day, maybe that's why they want
• 32:12
  Speaker 1: to tack a little bit more on the back end
• 32:14
  Speaker 1: of it. For a trial of this length, it's appropriate
• 32:18
  Speaker 1: to afford jurors some amount of time to tend to
• 32:20
  Speaker 1: their personal affairs, a court filing reads. Additionally, having more
• 32:24
  Speaker 1: time in the afternoon allows for better preparation by the
• 32:28
  Speaker 1: parties and allows for reasonable opportunities and time for the
• 32:31
  Speaker 1: court and counsel to address any motions or other matters
• 32:35
  Speaker 1: that routinely arise during the course of jury trials. Jennings
• 32:40
  Speaker 1: also asked the judge to set key pretrial deadlines, including
• 32:44
  Speaker 1: for discovery, expert disclosures, witness lists, and pretrial motions. How
• 32:49
  Speaker 1: about an alibi for Brian Koberger? Might be something that
• 32:51
  Speaker 1: should be, you know, compelled, considering he says he had one,
• 32:55
  Speaker 1: and we all know he didn't. Kohlberger is accused of
• 32:59
  Speaker 1: entering a six-bedroom house on King Road, Moscow, Idaho, around
• 33:03
  Speaker 1: 4 a.m. on November 13, 2022, and killing four students inside.
• 33:08
  Speaker 1: The victims were Madison Mogan and Kaylee Gonsalves, both 21,
• 33:12
  Speaker 1: and Zanna Kernodle and Ethan Chapin, who were both 20.
• 33:16
  Speaker 1: Two others in the house survived, including one who heard
• 33:19
  Speaker 1: crying and saw a masked man with bushy eyebrows leave
• 33:22
  Speaker 1: out the back door. Now, we all know that that
• 33:25
  Speaker 1: testimony from Dylan Mortensen is looming large. Is it going
• 33:29
  Speaker 1: to be enough to convict Brian Koberger? No, it's not.
• 33:32
  Speaker 1: She didn't see his face. What she saw were some
• 33:35
  Speaker 1: bushy eyebrows and somebody who looked like Brian Koberger. But
• 33:39
  Speaker 1: when you add that up with all the other evidence,
• 33:41
  Speaker 1: it's very strong. And anytime you have any kind of
• 33:44
  Speaker 1: eyewitness testimony, it goes a long way. Police found a
• 33:47
  Speaker 1: knife sheath under Mogan's body that they say had Koberger's
• 33:51
  Speaker 1: DNA on it. Authorities also cited phone records and surveillance
• 33:55
  Speaker 1: video showing Koberger's white Hyundai Elantra in a probable cause
• 33:59
  Speaker 1: affidavit last year. And all of that evidence that they
• 34:03
  Speaker 1: showed us in the probable cause affidavit was very, very strong.
• 34:07
  Speaker 1: And remember, it's not just circumstantial evidence that they gave us.
• 34:11
  Speaker 1: We have the DNA evidence to go along with it.
• 34:14
  Speaker 1: And of course, the DNA evidence acts like glue, combining
• 34:18
  Speaker 1: all of this other evidence together, forming that foundation. At
• 34:23
  Speaker 1: the time of the murders, Koberger was studying for a Ph.D.
• 34:26
  Speaker 1: in criminology at Washington State University, just 10 miles from Moscow.
• 34:31
  Speaker 1: Judge entered, not guilty please, on Koberger's behalf at his
• 34:35
  Speaker 1: arraignment in May. He could face the death penalty if
• 34:38
  Speaker 1: he's convicted. And we all know that the government has
• 34:42
  Speaker 1: already said that they're going for the death penalty in
• 34:45
  Speaker 1: this case. And that factor right there could be why
• 34:48
  Speaker 1: Brian Koberger and his team get this delay that they're
• 34:51
  Speaker 1: looking for. Whenever you have a capital punishment case on
• 34:54
  Speaker 1: the books, it throws it into a different realm, right?
• 34:58
  Speaker 1: And there's going to be different hoops that you have
• 35:00
  Speaker 1: to jump through as a prosecutor to secure that prosecution
• 35:04
  Speaker 1: and to secure making sure that you get the death
• 35:06
  Speaker 1: penalty that you're looking for. So that might be the
• 35:10
  Speaker 1: one thing that really launches this into next year. I
• 35:13
  Speaker 1: hope it doesn't. But it's certainly something that is on
• 35:17
  Speaker 1: the table. And I would say that there's a good
• 35:20
  Speaker 1: chance that we do get some kind of delay. Now,
• 35:23
  Speaker 1: is that delay going to take us into the summer
• 35:26
  Speaker 1: of 2025? I don't think so. But with as quickly
• 35:30
  Speaker 1: as things been evolving in this case since the very beginning,
• 35:33
  Speaker 1: I don't put anything out of the realm of possibility.
• 35:36
  Speaker 1: So like usual, we'll keep our eye on things. We'll
• 35:38
  Speaker 1: follow along. And when we have more information, we'll get
• 35:41
  Speaker 1: it added to the catalog. All the information that goes
• 35:45
  Speaker 1: with this episode can be found in the description box.
• 35:49
  Speaker 1: What's up, everyone, and welcome back to the program. In
• 35:52
  Speaker 1: this episode, we're diving back into those court documents, and
• 35:56
  Speaker 1: we're going to take a look at the objection to
• 35:58
  Speaker 1: the motion to stay the proceedings. Case number CR 29-22-2805.
• 36:03
  Speaker 1: Objection to motion to stay proceedings. State of Idaho plaintiff. vs.
• 36:12
  Speaker 1: Brian C. Koberger, the defendant. Comes now, the state of
• 36:17
  Speaker 1: Idaho by and through the Latah County prosecuting attorney and
• 36:21
  Speaker 1: objects to defendant's motion to stay proceedings. For the following reasons,
• 36:26
  Speaker 1: defendant's motion should be denied. Background. On May 16, 2023,
• 36:33
  Speaker 1: defendant was indicted by a Latah County grand jury of
• 36:37
  Speaker 1: four counts of first-degree murder and one count of burglary.
• 36:42
  Speaker 1: Three days later, on May 19th, defendant filed a motion
• 36:46
  Speaker 1: requesting release of grand jury materials under qualified protective order
• 36:51
  Speaker 1: motion to enlarge time to file pretrial motions and a
• 36:55
  Speaker 1: motion to make available the record of all proceedings of
• 36:59
  Speaker 1: the grand jury. On May 26th, the state filed its
• 37:03
  Speaker 1: response to defendant's motion to enlarge time. the state noted
• 37:08
  Speaker 1: that it did not object to defendant's motion to enlarge
• 37:11
  Speaker 1: time and went a step further by concurring in his
• 37:15
  Speaker 1: request for additional time. On May 30th, the state filed
• 37:20
  Speaker 1: its response to defendant's motion regarding grand jury records and
• 37:25
  Speaker 1: transcript and the proposed order for preparation and release of
• 37:29
  Speaker 1: transcript and record of the grand jury proceedings with conditions.
• 37:35
  Speaker 1: As noted in that response, the state had also provided
• 37:39
  Speaker 1: a proposed stipulation to defendant's counsel on May 25th. After
• 37:44
  Speaker 1: the parties were unable to reach an agreement as to
• 37:47
  Speaker 1: the scope of the grand jury materials that would be
• 37:50
  Speaker 1: subject to release, the state submitted its supplemental response to
• 37:55
  Speaker 1: defendant's motions regarding grand jury record and transcript on June 6th.
• 38:01
  Speaker 1: On June 13th, the defendant filed a reply to state's
• 38:05
  Speaker 1: supplemental response to defendant's motions regarding grand jury record and
• 38:10
  Speaker 1: transcript addressing the substantive legal arguments that the state set
• 38:15
  Speaker 1: forth in its June 6th supplemental response. Also on June 13th,
• 38:21
  Speaker 1: the defendant filed a motion to stay proceedings. Defendant asserts
• 38:26
  Speaker 1: that he intends to contest the indictment, defense, motion to stay,
• 38:30
  Speaker 1: page 2, and asks this court to stay this matter
• 38:33
  Speaker 1: so that he, may discover the grounds upon which to
• 38:37
  Speaker 1: file a motion to dismiss related to how the grand
• 38:40
  Speaker 1: jury was selected. In his motion to stay, the defendant
• 38:45
  Speaker 1: relies solely on Idaho Code 2-213. Argument. Defendant's reliance on
• 38:54
  Speaker 1: Idaho Code 2-213 is misplaced. The statute provides that a
• 38:59
  Speaker 1: party is can request to stay in proceedings where there
• 39:02
  Speaker 1: has been a substantial failure to comply with the applicable
• 39:06
  Speaker 1: law in selecting the grand or trial jury. Idaho Code 2-213.
• 39:13
  Speaker 1: Under Section 2-213, a motion to stay must contain a
• 39:18
  Speaker 1: sworn statement of facts which, if true, would constitute a
• 39:21
  Speaker 1: substantial failure to comply with this chapter. Idaho Code 2-213,
• 39:26
  Speaker 1: Section 2. Only after the court determines that a substantial
• 39:32
  Speaker 1: failure to comply has occurred can the matter be stayed
• 39:37
  Speaker 1: upon motion filed under subsection 1 of this section containing
• 39:41
  Speaker 1: a sworn statement of facts which if true would constitute
• 39:45
  Speaker 1: a substantial failure to comply with this chapter The moving
• 39:49
  Speaker 1: party is entitled to present, in support of the motion,
• 39:53
  Speaker 1: the testimony of the grand jury commissioner or the clerk,
• 39:57
  Speaker 1: any relevant records and papers, not public or otherwise available,
• 40:02
  Speaker 1: used by the jury commissioner or the clerk, and any
• 40:06
  Speaker 1: other relevant evidence. If the court determines that in selecting
• 40:11
  Speaker 1: either a grand jury or a trial jury, there has
• 40:14
  Speaker 1: been a substantial failure to comply with this chapter, the
• 40:18
  Speaker 1: court shall stay the proceedings pending the selection of the
• 40:21
  Speaker 1: jury in conformity with this chapter, quash an indictment, or
• 40:26
  Speaker 1: grant other appropriate relief. As the plain language of the
• 40:31
  Speaker 1: statute makes clear, a moving party must make a factual
• 40:35
  Speaker 1: showing of substantial failure to comply with the statute, and
• 40:40
  Speaker 1: only after a court makes a finding that such a
• 40:43
  Speaker 1: failure to comply occurred can the court stay the matter.
• 40:47
  Speaker 1: Defendant's motion is deficient because he did not include a
• 40:51
  Speaker 1: sworn statement of facts, which, if true, would constitute a
• 40:55
  Speaker 1: substantial failure to comply with this chapter. Rather than include
• 40:59
  Speaker 1: a sworn statement with his motion, defendant asserts in a
• 41:03
  Speaker 1: footnote that Mr. Koberger will comply with filing a sworn
• 41:07
  Speaker 1: statement of facts in accordance with Idaho Code 2-213, Section 2,
• 41:13
  Speaker 1: as soon as he has the grand jury record. By
• 41:16
  Speaker 1: including the promise to file a sworn statement in the future,
• 41:20
  Speaker 1: defendant implicitly concedes that his motion is deficient at the present.
• 41:26
  Speaker 1: Because defendant has failed to comply with the key requirement
• 41:30
  Speaker 1: of Idaho Code Section 2-213, his motion should be denied. Conclusion.
• 41:37
  Speaker 1: Defendant asks this court to put the cart before the horse,
• 41:41
  Speaker 1: stay the case now, and the defendant will give the
• 41:44
  Speaker 1: court a basis for the stay later on. The court
• 41:48
  Speaker 1: should decline to adopt this backward reading of the requirements
• 41:52
  Speaker 1: of Idaho Code Section 2-213 and defendant's motion should be denied.
• 41:59
  Speaker 1: Respectfully submitted this 15th day of June 2023 and signed
• 42:03
  Speaker 1: by William Thompson and Ingrid Beatty. And the next document
• 42:08
  Speaker 1: we have is the amended motion to stay the proceedings.
• 42:12
  Speaker 1: Case number CR 29-22-002805. State of Idaho Plaintiff. First Brian C. Koberger,
• 42:22
  Speaker 1: the defendant. Comes now. Brian C. Koberger, by and through
• 42:28
  Speaker 1: his attorney, and C. Taylor, public defender, and hereby moves
• 42:32
  Speaker 1: this court to stay all proceedings in this case pursuant
• 42:35
  Speaker 1: to Idaho Code Section 2-213. Procedural Background. Mr. Koberger was
• 42:42
  Speaker 1: indicted by a grand jury on May 16, 2023. He
• 42:46
  Speaker 1: filed a motion to make available the record of all
• 42:49
  Speaker 1: proceedings of the grand jury pursuant to I.C.R. 6.2 and
• 42:55
  Speaker 1: a motion requesting release of grand jury materials under qualified
• 42:59
  Speaker 1: protective order on May 19, 2023. The state then filed
• 43:05
  Speaker 1: their state's response to defendants' motions regarding grand jury record
• 43:09
  Speaker 1: and transcripts and proposed an order on May 30th of 2023.
• 43:14
  Speaker 1: The parties are not able to reach agreement regarding the
• 43:18
  Speaker 1: release of grand jury materials. In further opposition of Mr.
• 43:21
  Speaker 1: Koberger's motion for the preparation of grand jury materials, on
• 43:26
  Speaker 1: June 6th, 2023, the state filed their state supplemental response
• 43:31
  Speaker 1: to defendants' motions regarding grand jury record and transcript. A
• 43:37
  Speaker 1: hearing is scheduled for June 27th 2023 to argue this
• 43:41
  Speaker 1: contested matter. Mr. Koberger stood silent at his initial arraignment
• 43:46
  Speaker 1: to preserve his right to contest the indictment. He also
• 43:50
  Speaker 1: asserted his right to a speedy trial pursuant to the
• 43:53
  Speaker 1: United States and Idaho constitutions. Jury trial is scheduled to
• 43:58
  Speaker 1: begin October 2nd, 2023. Time is of the essence. Argument.
• 44:05
  Speaker 1: By the time this court hears argument on the preparation
• 44:08
  Speaker 1: of Of the grand jury proceedings, almost six weeks will
• 44:11
  Speaker 1: have passed from the time of the indictment. Preparation of
• 44:15
  Speaker 1: the grand jury record will then take additional time. Mr.
• 44:19
  Speaker 1: Koberger has the right and intends to contest the indictment.
• 44:23
  Speaker 1: Idaho Code Section 2-213 allows the defense to seek a
• 44:28
  Speaker 1: stay of proceedings. Within seven days after the moving party
• 44:33
  Speaker 1: discovers or by the exercise of diligence could have discovered
• 44:38
  Speaker 1: the grounds thereof and in any event before the trial
• 44:42
  Speaker 1: jury is sworn to try the case, a party may
• 44:45
  Speaker 1: move to stay the proceedings and in a criminal case
• 44:48
  Speaker 1: quash the indictment or for other appropriate relief on the
• 44:52
  Speaker 1: grounds of substantial failure to comply with this chapter in
• 44:56
  Speaker 1: selecting the grand or trial jury. Mr. Koberger seeks to
• 45:01
  Speaker 1: stay proceedings as appropriate relief while the matter of the
• 45:05
  Speaker 1: grand jury record is argued and prepared. He is exercising
• 45:09
  Speaker 1: due diligence to discover the grounds upon which a file
• 45:13
  Speaker 1: to motion to dismiss related to how the grand jury
• 45:16
  Speaker 1: was selected. He is being delayed through no fault of
• 45:20
  Speaker 1: his own. Conclusion Mr. Koberger's request to stay proceedings until
• 45:26
  Speaker 1: the grand jury record is prepared and he has adequate
• 45:29
  Speaker 1: time to contest the indictment, should be granted. The remedies
• 45:34
  Speaker 1: allowed in Idaho Code Section 2-213 are the exclusive means
• 45:39
  Speaker 1: by which a person accused of a crime may challenge
• 45:43
  Speaker 1: a grand jury on the grounds that the jury was
• 45:46
  Speaker 1: not selected in conformity with this chapter. A stay of
• 45:50
  Speaker 1: proceedings is appropriate. This was dated on the 15th of
• 45:55
  Speaker 1: June of 2023, and it was signed by Ann Taylor.
• 46:00
  Speaker 1: All right, folks, that's going to do it for this one.
• 46:02
  Speaker 1: All of the information that goes with this episode can
• 46:05
  Speaker 1: be found in the description box.