Latest / Beyond The Horizon / Mega Edition: Bryan Kohberger Responds to The Media's Motion To Intervene (8/9/26)

Transcript

Mega Edition: Bryan Kohberger Responds to The Media's Motion To Intervene (8/9/26) · Beyond The Horizon

• 0:01
  Speaker 1: What's up, everyone, and welcome back to the program. In
• 0:04
  Speaker 1: today's episode, we're gonna dive back into those court documents,
• 0:08
  Speaker 1: and this time we have Brian Coberger's response to the
• 0:11
  Speaker 1: Associated Press motion to intervene and motion to vacate the
• 0:16
  Speaker 1: amended non dissemination order. And once again, this is a
• 0:20
  Speaker 1: relatively long court document, so we're gonna break it down
• 0:24
  Speaker 1: into pieces to make it more digestible. So let's get started.
• 0:30
  Speaker 1: Case number CR twenty nine Dash twenty two Dash twenty
• 0:34
  Speaker 1: eight oh five, State of IDAHOA Plaintiff Firse Brian C. Coberger,
• 0:39
  Speaker 1: the defendant, the response to Associated Press motion to intervene
• 0:44
  Speaker 1: and motion devacate the amended non dissemination order in response
• 0:50
  Speaker 1: to the Associated Press's motion to intervene and motion devacate
• 0:54
  Speaker 1: the amended non dissemination order. In this case, the State
• 0:58
  Speaker 1: incorporates the argument when legal analysis provided in its brief
• 1:02
  Speaker 1: and opposition to writ by intervener responding State of Idaho,
• 1:06
  Speaker 1: Leta County before the Idaho Supreme Court in docket number.
• 1:10
  Speaker 2: Five zero four A two Dash two zero two.
• 1:13
  Speaker 1: Three, that briefing is attached to this response and incorporated.
• 1:18
  Speaker 1: You're in with the decision in the petition of writ
• 1:22
  Speaker 1: of mandamus or writ of prohibition. It is now this
• 1:25
  Speaker 1: Court's prerogative to determine the impact of the amended non
• 1:29
  Speaker 1: dissemination order on the Associated Press First Amendment rights, and
• 1:33
  Speaker 1: whether the order is vague, overbroad, unduly restrictive, or not
• 1:39
  Speaker 1: narrowly drawn. Number five zero four A two two zero
• 1:43
  Speaker 1: two three w L three zero five zero eight two nine, Idaho,
• 1:48
  Speaker 1: April twenty fourth, twenty twenty three. As outlined in the
• 1:52
  Speaker 1: attached brief, this Court should follow the reasoning of the
• 1:55
  Speaker 1: Ninth and Second Circuit Courts of appeal in Radio and
• 1:59
  Speaker 1: Television news is Asociation of Southern California versus US District
• 2:03
  Speaker 1: Court for Central District of California, seven eighty one F
• 2:07
  Speaker 1: dot two d eleven forty three, Ninth Circuit. Nineteen eighty six,
• 2:12
  Speaker 1: in application of Dow Jones in Company, Incorporated. Eight forty
• 2:16
  Speaker 1: two F dot two D six zero three, Second Circuit,
• 2:20
  Speaker 1: nineteen eighty eight. Even though the order might impact the
• 2:23
  Speaker 1: Associated Press's ability to interview the parties subject to the order,
• 2:28
  Speaker 1: this incidental impact does not amount to a prior restraint
• 2:32
  Speaker 1: on the speech of the press, or rise to the
• 2:35
  Speaker 1: level of strict scrutiny balancing First and six Amendment interests
• 2:39
  Speaker 1: in this case, the amended non dissemination order is not vague, overbroad,
• 2:44
  Speaker 1: or unduly restrictive, as it limits only the speech of
• 2:49
  Speaker 1: the prosecuting attorney, defense attorney, and any attorneys representing a witness, victim,
• 2:54
  Speaker 1: or a victim's family, as well as the parties to
• 2:57
  Speaker 1: the above entitled action, including but not limit to investigators,
• 3:01
  Speaker 1: law enforcement personnel, and agents for the prosecuting attorney or
• 3:05
  Speaker 1: the defense attorney. These parties have special insights and information
• 3:10
  Speaker 1: on the case, and limiting their speech to only those
• 3:13
  Speaker 1: documents which are part of the official public record of
• 3:16
  Speaker 1: the case provides a fair balance of First and six
• 3:20
  Speaker 1: Amendment rights, even if strict scrutiny applies. The order addresses
• 3:24
  Speaker 1: the serious and imminent threat that unrestricted extra judicial statements
• 3:29
  Speaker 1: pose in a case surrounded by intense publicity, is narrowly
• 3:33
  Speaker 1: drawn to trial participants attorneys involved in the case, and
• 3:38
  Speaker 1: is the least restrictive alternative. See Levigne versus US District
• 3:43
  Speaker 1: Court for Central District of California, seven sixty four f.
• 3:47
  Speaker 1: Dot two d five ninety five ninety seven through six
• 3:50
  Speaker 1: oh one nineteen eighty five. Regarding the question of whether
• 3:54
  Speaker 1: the order is narrowly drawn, neither vor Dyer jury instructions
• 3:59
  Speaker 1: change events. Your postponement or sequestering of the jury could
• 4:03
  Speaker 1: address the threat to judicial integrity posed by the prejudicial
• 4:07
  Speaker 1: extra judicial statements ida at five ninety nine through six
• 4:11
  Speaker 1: oh one, As articulated in Levigne, Adopting any of the
• 4:16
  Speaker 1: above alternatives would not address the issue of prejudicial pre
• 4:20
  Speaker 1: trial publicity and would either be ineffective or counterproductive. The
• 4:25
  Speaker 1: Associated Press continues to argue that specific evidence of a
• 4:29
  Speaker 1: six Amendment infringement must be shown, and that the court
• 4:33
  Speaker 1: should only look at the evidence and state of the
• 4:35
  Speaker 1: case at the time the initial non dissemination order was entered.
• 4:40
  Speaker 1: These contentions are incorrect, as the Fifth Circuit Court of
• 4:44
  Speaker 1: Appeals explained in US versus Brown, trial courts have an
• 4:48
  Speaker 1: affirmative constitutional duty to minimize the effects of prejudicial pre
• 4:53
  Speaker 1: trial publicity ganet Company Versus Depas Squal four forty three
• 4:57
  Speaker 1: US three sixty eight ninety six nine. Supreme Court twenty
• 5:02
  Speaker 1: eight ninety eight, twenty nine oh four sixty one L
• 5:05
  Speaker 1: Dot ed Dot two D six oh eight, nineteen seventy nine.
• 5:09
  Speaker 1: See also Chandler versus Florida, four forty nine US five
• 5:13
  Speaker 1: sixty one oh one, Supreme Court eight oh two, eight
• 5:16
  Speaker 1: oh nine sixty six L dot ed dot two D
• 5:20
  Speaker 1: seven forty nineteen eighty one. Trial courts must be especially
• 5:25
  Speaker 1: vigilant to guard against any impairment of the defendant's right
• 5:28
  Speaker 1: to a verdict based solely upon the evidence and the
• 5:32
  Speaker 1: relevant law at four twenty four. United States versus Noriega,
• 5:36
  Speaker 1: nine seventeen, f Dot two D. Fifteen forty three, fifteen
• 5:41
  Speaker 1: forty nine, eleven Circuit per Curium Cable News Network versus
• 5:47
  Speaker 1: Noriega four ninety eight US nine seventy six one eleven,
• 5:51
  Speaker 1: Supreme Court four fifty one one twelve L dot ed
• 5:55
  Speaker 1: dot two D four thirty two, nineteen ninety. The vigilance
• 5:59
  Speaker 1: of trial courts against the prejudicial effects of pre trial
• 6:02
  Speaker 1: publicity also protects the interests of the public and the
• 6:06
  Speaker 1: state in the fair administration of criminal justice. This duty
• 6:10
  Speaker 1: comports with the constitutional status of all First Amendment freedoms,
• 6:15
  Speaker 1: which are not absolute, but must be instead be applied
• 6:19
  Speaker 1: in light of the special characteristics of the relevant environment.
• 6:23
  Speaker 1: Tinker versus Des Moines Independent Community School District three ninety
• 6:27
  Speaker 1: three US five O three eighty nine. Supreme Court seven
• 6:31
  Speaker 1: thirty three, seven thirty six twenty one, L dot ed
• 6:35
  Speaker 1: Dot two D seven thirty one, nineteen sixty nine. Indeed,
• 6:39
  Speaker 1: although litigants do not surrender their First Amendment rights at
• 6:43
  Speaker 1: the courthouse door, those rights may be subordinated to other
• 6:46
  Speaker 1: interests that arise in the context of both civil and
• 6:50
  Speaker 1: criminal trials. Seattle Times versus Reinhardt, four sixty seven US
• 6:55
  Speaker 1: twenty one oh four, Supreme Court twenty one ninety nine,
• 6:58
  Speaker 1: twenty two oh seven zero eight N Dot eighteen eighty one,
• 7:03
  Speaker 1: L Dot ed Dot two d seventeen, nineteen eighty four.
• 7:08
  Speaker 1: On several occasions, this Court has approved restriction on the
• 7:12
  Speaker 1: communications of trial participants where necessary to ensure a fair
• 7:16
  Speaker 1: trial for a criminal defendant. There can be no question
• 7:20
  Speaker 1: that a criminal defendant's right to a fair trial may
• 7:23
  Speaker 1: not be compromised by commentary from any lawyer or party
• 7:28
  Speaker 1: offered up for media consumption on the courthouse steps. See
• 7:32
  Speaker 1: Estes versus Texas, three eighty one US five thirty two
• 7:36
  Speaker 1: eighty five. Supreme Court sixteen twenty eight, sixteen thirty two
• 7:41
  Speaker 1: fourteen L Dot ed Dot two D five forty three,
• 7:44
  Speaker 1: nineteen sixty five. We have always held that the atmosphere
• 7:48
  Speaker 1: is essential to the preservation of a fair trial. The
• 7:51
  Speaker 1: most fundamental of all freedoms must be maintained at all costs. Penticamp,
• 7:57
  Speaker 1: sixty six, Supreme Court at. Ten four seven, Frank Footer j.
• 8:02
  Speaker 1: Concurring in securing freedom of speech, the Constitution hardly meant
• 8:07
  Speaker 1: to create the right to influence judges or juries. In
• 8:10
  Speaker 1: Nebraska Press Association versus Stewart for twenty seven US five
• 8:14
  Speaker 1: thirty nine, ninety six, Supreme Court, twenty seven, ninety one,
• 8:18
  Speaker 1: forty nine l. Dot ed Dot two D six eighty three,
• 8:22
  Speaker 1: nineteen seventy six, the Supreme Court vacated on prior restraint
• 8:27
  Speaker 1: grounds in order prohibiting the press from publishing accounts about
• 8:31
  Speaker 1: certain evidence that would be used in a widely reported
• 8:34
  Speaker 1: murder trial taking place in a small rural community see
• 8:38
  Speaker 1: ninety six Supreme Court at. Twenty eight oh seven. In
• 8:41
  Speaker 1: doing so, the Court endors Shepherd's proposal that trial Court's
• 8:45
  Speaker 1: employ methods short of prior restraints on the press, including
• 8:49
  Speaker 1: the prohibition of extra judicial comments by trial participants, in
• 8:54
  Speaker 1: order to mitigate the potentially prejudicial effects of pre trial
• 8:58
  Speaker 1: publicity see Ida at twenty eight hundred through twenty eight
• 9:02
  Speaker 1: hundred and one. See also Foxman, nine thirty nine f.
• 9:06
  Speaker 1: Dot two d at five fourteen, Eleventh Circuit, nineteen ninety
• 9:10
  Speaker 1: one two eighteen f Dot three d four fifteen, four
• 9:14
  Speaker 1: to twenty five through four to twenty eight, Fifth Circuit,
• 9:17
  Speaker 1: two thousand. Thus, the Court has a duty to consider
• 9:20
  Speaker 1: the overall effect of possible prejudicial pre trial publicity and
• 9:25
  Speaker 1: to balance that effect between the First and six Amendment
• 9:28
  Speaker 1: rights of the parties involved. The order in this case
• 9:31
  Speaker 1: is in line with the Court's duties in Shepherd and
• 9:34
  Speaker 1: is drawn as required by the US Supreme Court decision
• 9:38
  Speaker 1: in Nebraska Press Association. The order is not vague, overbroad,
• 9:43
  Speaker 1: or unduly restrictive. The order is a reasonable and viable
• 9:47
  Speaker 1: option for this Court to meet its duties under Shepherd,
• 9:51
  Speaker 1: and only incidentally impacts the Associated press ability to interview
• 9:56
  Speaker 1: trial participants. While others may claim to be bound by
• 9:59
  Speaker 1: the U S order, it clearly only restricts the speech
• 10:03
  Speaker 1: of those participants with special information about the case. Thus,
• 10:07
  Speaker 1: this Court should adopt the reasoning of the Ninth Circuit
• 10:10
  Speaker 1: Court of Appeals. In radio and television news Association and
• 10:14
  Speaker 1: in application of Dow Jones and Company, Incorporated, in holding
• 10:18
  Speaker 1: that the incidental impact of the order upon the media's
• 10:22
  Speaker 1: ability to interview trial participants is an adequate balance to
• 10:26
  Speaker 1: the reasonable likelihood posed by prejudicial pre trial publicity, respectfully
• 10:32
  Speaker 1: submitted this sixth day of June twenty twenty three, and
• 10:35
  Speaker 1: this document was signed by Bradley Rudley. All Right, folks,
• 10:39
  Speaker 1: that's gonna do it for part one, and in the
• 10:42
  Speaker 1: next episode we'll pick up where we left off, and
• 10:45
  Speaker 1: we'll keep it moving in terms of conditions eating plus
• 10:49
  Speaker 1: what's up everyone, and welcome back to the program. This episode,
• 10:53
  Speaker 1: we're picking up where we left off with the response
• 10:56
  Speaker 1: to the Associated Press, and to do that, we're picking
• 10:59
  Speaker 1: up with the Supreme Court Docket number five zero four
• 11:03
  Speaker 1: eight two DASH two zero two three Brief in opposition
• 11:07
  Speaker 1: to writ by Intervener responding State of Idaho leta County Prosecutor. Introduction.
• 11:15
  Speaker 1: Free speech and fair trials are two of the most
• 11:18
  Speaker 1: cherished policies in our civilization, and it would be a
• 11:21
  Speaker 1: trying task to choose between them. Bridges versus California three
• 11:25
  Speaker 1: fourteen US two fifty two two sixty nineteen forty one.
• 11:30
  Speaker 1: The Court need not engage in the delicate balancing of
• 11:33
  Speaker 1: these rights where the sole basis of the claimed infringement
• 11:37
  Speaker 1: is access to interviews by the media Seepel Versus Procineer
• 11:42
  Speaker 1: four seventeen US eight seventeen eight thirty four and thirty
• 11:46
  Speaker 1: five nineteen seventy four. For the rights of the media
• 11:49
  Speaker 1: to gather information are no greater than those of the
• 11:52
  Speaker 1: general public. This case involves the duty of the Court
• 11:56
  Speaker 1: Council for the accused and the prosecutor to safety are
• 12:00
  Speaker 1: the rights of the parties to a fair and impartial
• 12:03
  Speaker 1: jury trial. On January eighteenth, twenty twenty three, Responding Judge
• 12:08
  Speaker 1: Meganie Marshall entered an amended non dissemination order in the
• 12:12
  Speaker 1: case of State of Idaho First Brian C. Coberger CR.
• 12:17
  Speaker 1: Twenty nine Dash twenty two Dash twenty eight oh five,
• 12:20
  Speaker 1: underlying criminal case, which orders that one the attorneys for
• 12:25
  Speaker 1: any interested party in the case, including the prosecuting attorney,
• 12:28
  Speaker 1: defense attorney, and any attorney representing a witness, victim, or
• 12:33
  Speaker 1: a victim's family, as well as the parties to the
• 12:35
  Speaker 1: above entitled action, including but not limited to investigators, law
• 12:41
  Speaker 1: enforcement personnel, and agents for the prosecuting attorney or defense
• 12:45
  Speaker 1: attorney are prohibited from making extra judicial statements written or
• 12:49
  Speaker 1: oral concerning this case, except without additional comment a quotation
• 12:55
  Speaker 1: from or reference to the official public record of the case.
• 13:00
  Speaker 1: Declaration of Wendy j Olsen Exhibit C. The amended non
• 13:03
  Speaker 1: dissemination Order was issued after an inn chamber's meeting between
• 13:07
  Speaker 1: the parties and the attorney for the victim's families Declaration
• 13:12
  Speaker 1: of Debra A. Ferguson example A. While many may claim
• 13:17
  Speaker 1: to be bound by the amended non Dissemination Order, the
• 13:20
  Speaker 1: order specifically limits the speech of attorneys for any interested party,
• 13:25
  Speaker 1: any attorney representing a witness, victim, or the victim's family, investigators,
• 13:31
  Speaker 1: law enforcement personnel, and agents for the prosecuting attorney and
• 13:35
  Speaker 1: the defense attorney, in line with Rule three point six
• 13:38
  Speaker 1: of the Idaho Rules a Professional Conduct. Following the entry
• 13:42
  Speaker 1: of the amended non Dissemination Order, petitioners in this case,
• 13:46
  Speaker 1: approximately thirty media companies file for the issuance of a
• 13:50
  Speaker 1: rid of men damis or rid of prohibition to vacate
• 13:53
  Speaker 1: or nullify the amended gag order. This case, however, is
• 13:57
  Speaker 1: not about restriction on speech of the press. A contempt
• 14:00
  Speaker 1: order or the closure of a court proceeding, but the
• 14:04
  Speaker 1: safeguarding of the right to a fair trial by an
• 14:07
  Speaker 1: impartial jury and the incidental effects of the amended non
• 14:10
  Speaker 1: dissemination order on the petitioner's ability to interview certain trial participants. First,
• 14:17
  Speaker 1: the petitioners are not entitled to a rid amandamus or
• 14:21
  Speaker 1: a rit a prohibition because their First Amendment rights have
• 14:24
  Speaker 1: not been infringed by the incidental effects of the amended
• 14:28
  Speaker 1: non dissemination order. The petitioners are free to seek interviews
• 14:32
  Speaker 1: from witnesses and observe the court proceedings in the underlying case,
• 14:36
  Speaker 1: This Court should follow the reasoning of the Ninth and
• 14:39
  Speaker 1: Second Circuit Court of Appeals in Radio and Television News
• 14:43
  Speaker 1: Association of Southern California versus US District Court for Central
• 14:48
  Speaker 1: District of California, seven eighty one f dot two D
• 14:52
  Speaker 1: eleven forty three, Ninth Circuit, nineteen eighty six, in the
• 14:56
  Speaker 1: application of Dow Jones and Company, Incorporated. Eight forty two
• 14:59
  Speaker 1: F two d six h three, Second Circuit, nineteen eighty eight.
• 15:04
  Speaker 1: Even if the Court were to expand the powers of
• 15:06
  Speaker 1: the media to attack loftul orders in criminal cases, which
• 15:10
  Speaker 1: bind those parties involved to the rules of professional conduct.
• 15:14
  Speaker 1: The amended non dissemination order meets the dictates of strict
• 15:18
  Speaker 1: scrutiny because the order addresses the serious and imminent threat
• 15:22
  Speaker 1: that unrestricted extra judicial statements pose in a case surrounded
• 15:27
  Speaker 1: by intense publicity, is narrowly drawn to trial participants, and
• 15:32
  Speaker 1: is the least restrictive alternative see Levigne versus US District
• 15:36
  Speaker 1: Court for the Central District of California, seven sixty four f.
• 15:40
  Speaker 1: Dot two d five ninety and five ninety seven through
• 15:43
  Speaker 1: six h one, nineteen eighty five. Finally, the court should
• 15:47
  Speaker 1: not create a First Amendment right which has not been recognized,
• 15:51
  Speaker 1: the right to access or interview trial participants. Thus, the
• 15:55
  Speaker 1: respondent intervener requests that the Court deny this petition for
• 16:00
  Speaker 1: a rid of mandamus or a rid of prohibition. Section two.
• 16:04
  Speaker 1: Statement of the case as set out by a respondent
• 16:08
  Speaker 1: intervener State of Idaho Leyta County Prosecutor in its February seventeenth,
• 16:13
  Speaker 1: twenty twenty three memorandum in support a petition for leave
• 16:16
  Speaker 1: to intervene by State of Idaho Leyta County Prosecutor in
• 16:21
  Speaker 1: criminal case number c R twenty nine DASH twenty two
• 16:25
  Speaker 1: DASH twenty eight oh five. The defendant, Brian C. Coberger,
• 16:28
  Speaker 1: is charged by criminal complaint of the State of Idaho
• 16:32
  Speaker 1: with four counts of murder in the first degree and
• 16:35
  Speaker 1: one count of burglary. The case is still in the
• 16:38
  Speaker 1: pre trial phase and is set for a preliminary hearing
• 16:41
  Speaker 1: on June twenty sixth of twenty twenty three. This case
• 16:45
  Speaker 1: and investigation have been the subject of great publicity. In
• 16:49
  Speaker 1: light of such publicity, the parties in the underlying criminal
• 16:52
  Speaker 1: case stipulated to the entry of the non dissemination order
• 16:56
  Speaker 1: on January third, twenty twenty three Olsen declar Exhibit A.
• 17:02
  Speaker 1: That order was later amended on January eighteenth, twenty twenty three,
• 17:07
  Speaker 1: to ensure the balance between protecting the right to affair
• 17:10
  Speaker 1: trial for all parties involved Olsen Declaration Exhibit C, Page six.
• 17:16
  Speaker 1: Prior to the issuance of the amended non dissemination order,
• 17:19
  Speaker 1: the attorneys for the parties in the underlying criminal case
• 17:23
  Speaker 1: and attorneys for the victims' families met with Judge Meganie
• 17:26
  Speaker 1: Marshall via Zoom on January thirteenth, twenty twenty three to
• 17:31
  Speaker 1: discuss the parameters of the order. Ferguson declaration Exhibit A.
• 17:37
  Speaker 1: Judge Marshall noted that the order mirrors Idaho Rules of
• 17:41
  Speaker 1: Professional Conduct Ruled three Pout six, and that the attorneys
• 17:45
  Speaker 1: in the case should not be speculating about what will
• 17:49
  Speaker 1: happen to the media. On February fourteenth, twenty twenty three,
• 17:53
  Speaker 1: petitioners in this case filed a petition for a rid
• 17:56
  Speaker 1: of mandamus or a rit of prohibition asking that the
• 17:59
  Speaker 1: Supreme Court vacate or nullify the amended gag order. Respondent
• 18:04
  Speaker 1: Intervener State of Idaho, Leayta County Prosecutor was granted leave
• 18:08
  Speaker 1: to intervene on February twenty third, twenty twenty three, and
• 18:12
  Speaker 1: submits this brief and opposition to the writ issues presented.
• 18:17
  Speaker 1: Responded Intervener State of Idaho, Leayta County Prosecutor would reframe
• 18:23
  Speaker 1: the issues for the court as follows. Whether Respondent Judge
• 18:27
  Speaker 1: Meganie Marshall amended non dissemination Order adequately balances the Sixth
• 18:32
  Speaker 1: Amendment right to affair and impartial jury trial guaranteed by
• 18:36
  Speaker 1: the United States Constitution, against the effect on the petitioner's
• 18:40
  Speaker 1: ability to interview the attorneys, investigators, law enforcement personnel and
• 18:45
  Speaker 1: agents of the prosecution and defense in the underlying criminal case.
• 18:50
  Speaker 1: Standard of review as stated in Idaho Vers District Court
• 18:54
  Speaker 1: of Fourth Judicial District. Article five, Section nine of the
• 18:59
  Speaker 1: Idaho Constitution grants this court original jurisdiction to issue writs
• 19:04
  Speaker 1: of prohibition. For the rid of prohibition to issue, it
• 19:08
  Speaker 1: is necessary that two contingencies must be shown. One that
• 19:13
  Speaker 1: the tribunal corporation, board or person is proceeding without or
• 19:18
  Speaker 1: in excess of the jurisdiction of such tribunal corporation, board
• 19:22
  Speaker 1: or person, and that there is not a plane speedy
• 19:26
  Speaker 1: and adequate remedy. In the ordinary course of law, a
• 19:29
  Speaker 1: right of appeal is regarded as a plane speedy an
• 19:33
  Speaker 1: adequate remedy at law in the absence of showing of
• 19:37
  Speaker 1: exceptional circumstances or of the inadequacy of an appeal to
• 19:42
  Speaker 1: protect existing rights. Prohibition is primarily concerned with jurisdiction and
• 19:47
  Speaker 1: is not available to review errors committed in the exercise
• 19:51
  Speaker 1: of jurisdiction. A rid of prohibition, like a rid of mandate,
• 19:55
  Speaker 1: will not lie to control discretionary acts of courts acting
• 19:59
  Speaker 1: within their jurisd addiction. An applicant bears the burden of
• 20:02
  Speaker 1: showing that the lower court is acting without or an
• 20:06
  Speaker 1: excess of its jurisdiction. Id jurisdiction is a question of
• 20:11
  Speaker 1: law over which this Court exercises free review one three
• 20:16
  Speaker 1: Idaho six ninety five, six ninety eight through six ninety nine,
• 20:20
  Speaker 1: two thousand and six. Additionally, the rit of prohibition is
• 20:24
  Speaker 1: a discretionary remedy under Idaho common law, granted only when
• 20:28
  Speaker 1: this Court concludes that the remedy is appropriate. The term
• 20:32
  Speaker 1: jurisdiction has a specific meaning in the context of a
• 20:36
  Speaker 1: writ of prohibition. That is, when used in reference to
• 20:39
  Speaker 1: a writ of prohibition, the word jurisdiction includes power or
• 20:44
  Speaker 1: authority conferred by law. Thus, in the context of a
• 20:48
  Speaker 1: rit of prohibition, the question of jurisdiction is not merely
• 20:51
  Speaker 1: a question of whether the tribunal had subject matter and
• 20:55
  Speaker 1: personal jurisdiction, but also whether the tribunal had.
• 20:59
  Speaker 2: The lawful authority to take the action that it did.
• 21:03
  Speaker 1: All right, folks, we're going to wrap up here and
• 21:04
  Speaker 1: in the next episode we're going to pick up with
• 21:07
  Speaker 1: the argument. All of the information that goes with this
• 21:10
  Speaker 1: episode can be found in the description box. What's up everyone,
• 21:15
  Speaker 1: and welcome back to the program. We're gonna pick up
• 21:19
  Speaker 1: where we left off with Coburger's response to the ap
• 21:24
  Speaker 1: the argument. The sixth Amendment to the US Constitution guarantees
• 21:29
  Speaker 1: that in all criminal prosecutions, the accused shall enjoy the
• 21:33
  Speaker 1: right to a speedy and public trial by an impartial jury.
• 21:37
  Speaker 1: US Constitution Amendment number six. This is not only a
• 21:42
  Speaker 1: duty of the court and counsel for the accused, but
• 21:45
  Speaker 1: also for the prosecutor as a public officer.
• 21:48
  Speaker 2: State versus.
• 21:49
  Speaker 1: Spencer, seventy four Idaho one seventy three, one eighty three,
• 21:53
  Speaker 1: nineteen fifty three for uninhibited prejudicial pre trial publicity may
• 21:59
  Speaker 1: destroy the fairness of a criminal trial Nebraska Press Association
• 22:03
  Speaker 1: versus Stewart, four twenty seven US five thirty nine, five
• 22:07
  Speaker 1: eighty seven, nineteen seventy six, Brennan j. Concurring. In contrast,
• 22:12
  Speaker 1: the First Amendment generally grants the press no right to
• 22:15
  Speaker 1: information about a trial superior to that of the general
• 22:20
  Speaker 1: public Nixon versus Warner Communications Incorporated. Four thirty five US
• 22:25
  Speaker 1: five eighty nine, six oh nine, nineteen seventy eight. The
• 22:29
  Speaker 1: potential for injury to the integrity of the judicial process
• 22:33
  Speaker 1: is significant in cases involving trial publicity. As the Supreme
• 22:37
  Speaker 1: Court is noted, the theory of our system is that
• 22:41
  Speaker 1: the conclusions to be reached in a case will be
• 22:44
  Speaker 1: induced only by evidence and argument in open court, and
• 22:47
  Speaker 1: not by any outside influence, whether of private talk or
• 22:51
  Speaker 1: public print. Levigne, seven sixty four f dot two d
• 22:56
  Speaker 1: at five, ninety seven, quoting Patterson versus Colorado Attorney General
• 23:01
  Speaker 1: two O five US four fifty four four sixty two,
• 23:05
  Speaker 1: nineteen oh seven, The amended non dissemination order does not
• 23:09
  Speaker 1: suppress or restrain the speech of the press, but simply
• 23:12
  Speaker 1: limits the extra judicial statements of attorneys, officers, and court
• 23:17
  Speaker 1: personnel in the underlying criminal case to those requirements set
• 23:21
  Speaker 1: forth in Idaho Rules of Professional Conduct three dot six
• 23:25
  Speaker 1: and three pot.
• 23:26
  Speaker 2: Eight.
• 23:27
  Speaker 1: The Court should adopt the reasoning in Radio and Television
• 23:30
  Speaker 1: News Association of Southern California versus US District Court for
• 23:34
  Speaker 1: Central District of California and the application of Dow Jones
• 23:38
  Speaker 1: and Company, Incorporated, in holding that such incidental effect on
• 23:43
  Speaker 1: the petitioner's ability to interview these personnel does not rise
• 23:47
  Speaker 1: to the level of a First Amendment infringement. Seven eighty
• 23:51
  Speaker 1: one f dot two d fourteen forty three eight forty
• 23:54
  Speaker 1: two F Dot two D six O three. Even if
• 23:58
  Speaker 1: this Court expands the power of the press to challenge
• 24:01
  Speaker 1: the trial court orders which only incidentally affect their ability
• 24:05
  Speaker 1: to interview the attorneys in a criminal case, the amended
• 24:09
  Speaker 1: non dissemination order meets the dictates of strict scrutiny because
• 24:13
  Speaker 1: the order addresses the serious and imminent threat that unrestricted
• 24:17
  Speaker 1: extra judicial statements pose in a case surrounded by intense publicity,
• 24:22
  Speaker 1: is narrowly drawn to trial participants, and is the least
• 24:26
  Speaker 1: restrictive alternative Levigne, seven sixty four f. Dot two d
• 24:30
  Speaker 1: at five ninety. Finally, this Court should not expand the
• 24:34
  Speaker 1: First Amendment rights of the press to challenge orders which
• 24:37
  Speaker 1: do not impair their ability to speak or publish under
• 24:42
  Speaker 1: Article I, Section nine of the Idaho Constitution, or other
• 24:46
  Speaker 1: existing rights under the First Amendment to the United States Constitution. A.
• 24:52
  Speaker 1: The petitioners have not demonstrated an infringement of their First
• 24:56
  Speaker 1: Amendment rights, as the amended non dissemination order only affects
• 25:00
  Speaker 1: the ability of specific parties in the underlying criminal case
• 25:04
  Speaker 1: to answer the petitioner's questions in a case surrounded by
• 25:08
  Speaker 1: intense publicity and media attention. It is the duty of
• 25:12
  Speaker 1: the court to take such steps by rule and regulation
• 25:15
  Speaker 1: that will protect their process from prejudicial outside interferences. Shephard
• 25:21
  Speaker 1: versus Maxwell, three eighty four US three thirty three, three
• 25:24
  Speaker 1: sixty three, nineteen sixty six. Where the impact of extra
• 25:28
  Speaker 1: judicial statements upon a case is so high, the court
• 25:32
  Speaker 1: should make some effort to control the release of leads, information,
• 25:36
  Speaker 1: and gossip to the press by police officers, witnesses, and
• 25:39
  Speaker 1: the council for both sides Idea three p. Fifty nine,
• 25:43
  Speaker 1: where a court enters in order to limit the extra
• 25:46
  Speaker 1: judicial statements of attorneys and law enforcement in a case,
• 25:50
  Speaker 1: the impact on the media is only incidental in that
• 25:53
  Speaker 1: the media may still ask questions, gather information from court proceedings,
• 25:58
  Speaker 1: and report such information, but the attorney or officer may
• 26:02
  Speaker 1: decline to answer questions. Radio and Television News Association, seven
• 26:06
  Speaker 1: eighty one f. Dot two d at. Fourteen forty seven.
• 26:11
  Speaker 1: In this case, the Court should adopt the reasoning of
• 26:14
  Speaker 1: the Ninth Circuit Court of Appeals in Radio and Television
• 26:17
  Speaker 1: News Association and Application of Dow Jones and Company. Because
• 26:21
  Speaker 1: the amended non dissemination order only limits the speech of
• 26:25
  Speaker 1: specific parties who would otherwise be subject to the Idaho
• 26:29
  Speaker 1: Rules a Professional Conduct and the petitioner's ability to speak
• 26:33
  Speaker 1: and observe the criminal justice process are not infringed. Further,
• 26:37
  Speaker 1: the amended non dissemination order merely adopts the dictates of
• 26:41
  Speaker 1: the Idaho Rules a Professional Conduct and is a proper
• 26:45
  Speaker 1: exercise of the lower court's power. One. This Court should
• 26:49
  Speaker 1: follow the Ninth and Second Circuit Court of Appeals reasoning
• 26:53
  Speaker 1: and apply that test to this matter, because the amended
• 26:57
  Speaker 1: non dissemination order does not infringe on the petitioner's speech,
• 27:01
  Speaker 1: ability to gather information, or constitute a denial of access
• 27:06
  Speaker 1: to the court proceedings. The reasoning and tests outlined by
• 27:10
  Speaker 1: the Ninth Circuit Court of Appeals in Radio and Television
• 27:14
  Speaker 1: News Association and the Second Circuit Court of Appeals in
• 27:17
  Speaker 1: the application of Dow Jones and Company properly limit the
• 27:21
  Speaker 1: scope of the court's review in this case to those
• 27:24
  Speaker 1: matters which are only challenged by the media petitioners whether
• 27:28
  Speaker 1: they have a First Amendment right to interview specific parties.
• 27:32
  Speaker 1: In the case of Radio and Television News Association, the
• 27:35
  Speaker 1: Ninth Circuit Court of Appeals was asked to decide whether
• 27:38
  Speaker 1: an amended restraining order in a criminal case, which barred
• 27:42
  Speaker 1: the attorneys in that case from speaking with the media
• 27:45
  Speaker 1: on matters relating to several subjects constituted an unconstitutional prior
• 27:50
  Speaker 1: restraint on the First Amendment rights of the press seven
• 27:53
  Speaker 1: eighty one ft. Two d At fourteen forty four. After
• 27:57
  Speaker 1: examining the US Supreme Court precedent regarding the rights of
• 28:01
  Speaker 1: the press to interview, the Court noted that the media
• 28:05
  Speaker 1: never has a guarantee of a right to interview counsel
• 28:08
  Speaker 1: in a criminal trial. Trial counsel are, of course free
• 28:11
  Speaker 1: to refuse interviews, whether or not restrained by the court.
• 28:16
  Speaker 1: If such an individual refuses an interview, the media has
• 28:19
  Speaker 1: no recourse to relief based upon the First Amendment. Ultimately,
• 28:24
  Speaker 1: the Court held that the media's collateral interest in interviewing
• 28:28
  Speaker 1: trial participants is outside the scope of protection offered by
• 28:32
  Speaker 1: the First Amendment. The media's desire to obtain access to
• 28:35
  Speaker 1: certain sources of information that otherwise might be available is
• 28:39
  Speaker 1: not a sufficient interest to establish an infringement of freedom
• 28:43
  Speaker 1: of the press in this case, id at fourteen forty seven.
• 28:47
  Speaker 1: To assess the incidental effect of the order, the Court
• 28:51
  Speaker 1: adopted the test to assess whether the restrictions imposed are reasonable,
• 28:55
  Speaker 1: and whether the interests of the government override the very
• 28:59
  Speaker 1: limited incidental effects of the order on the First Amendment rights.
• 29:03
  Speaker 1: The restrictions imposed also must not serve an illegitimate purpose.
• 29:09
  Speaker 1: Restricting extra judicial statements by the parties was then found
• 29:13
  Speaker 1: to be a reasonable and legitimate interest for safeguarding the
• 29:16
  Speaker 1: right to a fair trial and the integrity of the
• 29:19
  Speaker 1: judicial process. In the case of Dow, Jones and Company,
• 29:23
  Speaker 1: the Second Circuit Court of Appeals was confronted with a
• 29:26
  Speaker 1: similar question of whether a gag order on the speech
• 29:29
  Speaker 1: of attorneys and parties in an underlying criminal case constituted
• 29:33
  Speaker 1: a First Amendment infringement on the press and their ability
• 29:37
  Speaker 1: to interview and gather information a for two Ft. Two
• 29:41
  Speaker 1: d At six oh five. In adopting the rationales in
• 29:44
  Speaker 1: Radio and Television News Association, the Court held that the
• 29:48
  Speaker 1: order did not constitute a prior restraint on the speech
• 29:51
  Speaker 1: of the press subject to strict scrutiny, and that the
• 29:54
  Speaker 1: failure to restrain the trial participants would add fuel to
• 29:58
  Speaker 1: an already voracious fire of publicity and create a real
• 30:02
  Speaker 1: and substantial likelihood that some, if not all, the defendants
• 30:06
  Speaker 1: might be deprived of a fair trial. At six eleven.
• 30:10
  Speaker 1: The Court recognized the critical distinction between a challenge by
• 30:13
  Speaker 1: the press to an order that restrains them versus an
• 30:16
  Speaker 1: order that restrains trial participants that is challenged by the
• 30:20
  Speaker 1: press id At six oh eight. Conversely, the decision by
• 30:24
  Speaker 1: the six Circuit Court of Appeals in CBS Incorporated versus
• 30:28
  Speaker 1: Young is distinguishable from the case at hand five point
• 30:32
  Speaker 1: twenty two f Dot two d. Two thirty four, Six Circuit,
• 30:36
  Speaker 1: nineteen seventy five. In that case, the Sixth Circuit granted
• 30:40
  Speaker 1: intervention for all parties in a civil case which were
• 30:43
  Speaker 1: subject to the order id At two thirty six. The
• 30:47
  Speaker 1: order limited not only the speech of the parties in
• 30:50
  Speaker 1: the case, but also their relatives, close friends, and associates
• 30:55
  Speaker 1: id as stated in Dow Jones and Company Incorporated. Young.
• 31:00
  Speaker 1: The Court held that the conclusion is inevitable that the
• 31:03
  Speaker 1: restraining order constitutes a prior direct restraint upon freedom of
• 31:08
  Speaker 1: expression Idea two thirty nine. Adopting this view ignores the
• 31:12
  Speaker 1: fact that the defendants here requested the order and urge
• 31:15
  Speaker 1: its affirments. Thus, we conclude that there is a fundamental
• 31:19
  Speaker 1: difference between a gag order challenged by the individual gagged,
• 31:23
  Speaker 1: and one challenged by a third party. An order objected
• 31:27
  Speaker 1: to by the former is properly characterized as prior restraint.
• 31:32
  Speaker 1: One opposed solely by the latter is not. Eight forty
• 31:35
  Speaker 1: two F Dot two d at six h nine. Additionally,
• 31:39
  Speaker 1: in the case of Michigan Verse Sledge, cited by the petitioners,
• 31:42
  Speaker 1: the lower court entered a gag order susponte, and there
• 31:46
  Speaker 1: was no indication that the prosecutor or defense council wanted
• 31:50
  Speaker 1: such an order in place eight seventy nine and W.
• 31:53
  Speaker 2: Dot two d.
• 31:54
  Speaker 1: Eight eighty four, eight ninety six, Michigan Court of Appeals,
• 31:58
  Speaker 1: twenty fifteen in US. In this case, the Court should
• 32:01
  Speaker 1: adopt the reasoning and tests set out in the Radio
• 32:04
  Speaker 1: and Television News Association and Dow Jones in Company Incorporated.
• 32:08
  Speaker 1: The prosecutor and defense stipulated to the entry of the
• 32:12
  Speaker 1: non dissemination order in the underlying case Olsen Declaration Exhibit A.
• 32:17
  Speaker 1: On inquiry about whether the order applied to the attorneys
• 32:20
  Speaker 1: for the victims' families, the court held a conference between
• 32:24
  Speaker 1: all parties involved and found that the order was one
• 32:27
  Speaker 1: memorialization of Idaho rule of professional conduct three dot six
• 32:31
  Speaker 1: two in response to what the Court had been seeing
• 32:34
  Speaker 1: and hearing from various media sources, and three that the
• 32:38
  Speaker 1: comments are harming the ability to unpanel a jury. Ferguson
• 32:42
  Speaker 1: declaration example A at pages.
• 32:46
  Speaker 2: One through three.
• 32:47
  Speaker 1: Similar to Radio and Television News Association and Dow Jones
• 32:51
  Speaker 1: in Company, Incorporated, the parties in this proceeding before the
• 32:55
  Speaker 1: Court want the amended non dissemination order to remain in place.
• 32:59
  Speaker 1: The only person affected by the order who does not
• 33:02
  Speaker 1: wish it to remain intact, Attorney Shannon Gray, is not
• 33:06
  Speaker 1: party to this writ proceeding. Therefore, this Court should adopt
• 33:09
  Speaker 1: the holdings by the Ninth and Second Circuit Court of
• 33:12
  Speaker 1: Appeals in denying the requested writs because the amended non
• 33:16
  Speaker 1: dissemination order only incidentally affects the petitioner's ability to interview
• 33:21
  Speaker 1: the primary trial participants in the underlying case. All right, folks,
• 33:27
  Speaker 1: we're gonna wrap up Part three right here, and in
• 33:29
  Speaker 1: the next episode we'll pick up where we left off.
• 33:33
  Speaker 1: All of the information that goes with this episode can
• 33:36
  Speaker 1: be found in the description box. What's up everyone, and
• 33:40
  Speaker 1: welcome back to the program. This episode, we're diving right
• 33:44
  Speaker 1: back in to those court documents, and we're picking up
• 33:47
  Speaker 1: where we left off with Brian Koberger's response to the AP.
• 33:52
  Speaker 1: The amended non dissemination order is in line with the
• 33:55
  Speaker 1: requirements of the Idaho Rules of Professional Conduct and the
• 33:59
  Speaker 1: power of the court to limit the speech of attorneys,
• 34:02
  Speaker 1: law enforcement personnel, investigators, and their agents idle whole Rule
• 34:06
  Speaker 1: of Professional Conduct I dot R dot P dot C
• 34:10
  Speaker 1: three dot six regarding trial publicity, requires that a a
• 34:14
  Speaker 1: lawyer who is participating or who has participated in the
• 34:18
  Speaker 1: investigation or litigation of a matter shall not make an
• 34:23
  Speaker 1: extra judicial statement that the lawyer knows or reasonably should know,
• 34:27
  Speaker 1: will be disseminated by means of public communication, and will
• 34:30
  Speaker 1: have a substantial likelihood of materially prejudicing and adjudicative proceeding
• 34:36
  Speaker 1: in this matter. Comments five to I dot R dot
• 34:39
  Speaker 1: P dot C three dot six states that there are,
• 34:42
  Speaker 1: on the other hand, certain subjects that are more likely
• 34:45
  Speaker 1: than not to have a material prejudicial effect on a preceding,
• 34:50
  Speaker 1: particularly when they refer to a civil matter triable to
• 34:53
  Speaker 1: a jury, a criminal matter, or any other preceding that
• 34:57
  Speaker 1: could result in incarceration. Subjects relate to one the character credibility, reputation,
• 35:04
  Speaker 1: or a criminal record of a party suspect in a
• 35:07
  Speaker 1: criminal investigation, or witness or the identity of a witness,
• 35:11
  Speaker 1: or the expected testimony of a party or a witness.
• 35:14
  Speaker 1: Two in a criminal case or proceeding that could result
• 35:19
  Speaker 1: in incarceration, the possibility of a plea of guilty to
• 35:23
  Speaker 1: the offense, or the existence or contents of any confession, admission,
• 35:27
  Speaker 1: or a statement given by a defendant or suspect, or
• 35:30
  Speaker 1: that person's refusal or failure to make a statement. Three
• 35:35
  Speaker 1: the performance results of any examination or test, or the
• 35:38
  Speaker 1: refusal or failure of a person to submit to an
• 35:41
  Speaker 1: examination or test, or the identity or nature of physical
• 35:46
  Speaker 1: evidence expected to be presented. Four any opinion as to
• 35:50
  Speaker 1: the guilt or innocence of a defendant or suspect in
• 35:54
  Speaker 1: a criminal case or proceeding that could result in incarceration.
• 35:58
  Speaker 1: Five information that the lawyer knows or reasonably should know
• 36:02
  Speaker 1: is likely to be inadmissible as evidence in a trial,
• 36:06
  Speaker 1: and that would, if disclosed, create a substantial risk of
• 36:10
  Speaker 1: prejudicing an impartial trial. Or six the fact that a
• 36:14
  Speaker 1: defendant has been charged with a crime, unless there is
• 36:17
  Speaker 1: an included therein a statement explaining that charge is merely
• 36:21
  Speaker 1: an accusation, and that the defendant is presumed innocent until
• 36:25
  Speaker 1: and unless proven guilty. Additionally, the prosecutor is further bound
• 36:30
  Speaker 1: by I dot R, dot P dot C dot three
• 36:33
  Speaker 1: dot eight. And these principles are reflected in the amended
• 36:37
  Speaker 1: non dissemination order and provide the court in the underlying
• 36:40
  Speaker 1: criminal case with means to enforce such concepts through a
• 36:44
  Speaker 1: contempt proceeding if a party attorney were to violate these dictates.
• 36:49
  Speaker 1: As the US Supreme Court noted a bit in dicta
• 36:52
  Speaker 1: in footnote twenty seven of Nebraska Press Association versus. Stewart,
• 36:57
  Speaker 1: a significant component of prejudicial pre trial publicity may be
• 37:01
  Speaker 1: traced to public commentary on pending cases by court personnel,
• 37:05
  Speaker 1: law enforcement officials, and the attorneys involved in the case.
• 37:08
  Speaker 1: In Sheppard versus Maxwell, Supra, we observe that the trial
• 37:12
  Speaker 1: court might well have prescribed extra judicial statements by any lawyer,
• 37:16
  Speaker 1: party witness, or court official which divulge prejudicial matters. As
• 37:22
  Speaker 1: officers of the court, court personnel and attorneys have a
• 37:26
  Speaker 1: fiduciary responsibility not to engage in public debate that will
• 37:30
  Speaker 1: rebound to the detriment of the accused, or that will
• 37:33
  Speaker 1: obstruct the fair administration of justice. It is very doubtful
• 37:37
  Speaker 1: that the Court would not have the power to control
• 37:40
  Speaker 1: release of information by these individuals in appropriate cases see
• 37:44
  Speaker 1: Sawyer three sixty US six twenty two seventy nine. Supreme
• 37:49
  Speaker 1: Court thirteen seventy six, three L Dot ed Dot two
• 37:53
  Speaker 1: D fourteen seventy three, nineteen fifty nine, and to impose
• 37:57
  Speaker 1: suitable limitations whose transgres could result in disciplinary proceedings.
• 38:03
  Speaker 2: Cf.
• 38:03
  Speaker 1: New York Times Company versus United States, four h three
• 38:07
  Speaker 1: US at seven twenty eight through seven thirty ninety one,
• 38:10
  Speaker 1: Supreme Court at twenty one forty eight through twenty one
• 38:14
  Speaker 1: forty nine, Stuart j. Joined by Whitejay Concurring. Similarly, in
• 38:19
  Speaker 1: most cases, courts would have ample power to control such
• 38:23
  Speaker 1: actions by law enforcement personnel for twenty seven US five
• 38:27
  Speaker 1: thirty nine and two seven nineteen seventy six. Thus, the
• 38:32
  Speaker 1: amended non dissemination order appropriately limits the speech by attorneys,
• 38:37
  Speaker 1: law enforcement personnel, investigators, and agents involved in the case
• 38:42
  Speaker 1: to only the official public record of the case. B.
• 38:46
  Speaker 1: Even if the Court finds that strict scrutiny applies, the
• 38:49
  Speaker 1: amended non dissemination order is the least restrictive alternative narrowly
• 38:54
  Speaker 1: drawn to address the clear and present danger or serious
• 38:58
  Speaker 1: and imminent threat that is posed by unmanaged extra judicial statements.
• 39:04
  Speaker 1: If this Court expands the rights of the press to
• 39:06
  Speaker 1: assert standing to challenge the amended non dissemination order as
• 39:10
  Speaker 1: a prior restraint on their ability to interview the parties
• 39:13
  Speaker 1: subject to the order, the order still meets the requirements
• 39:17
  Speaker 1: of strict scrutiny. An order that restricts extra judicial speech
• 39:21
  Speaker 1: of litigants will survive strict scrutiny if one, the activity
• 39:25
  Speaker 1: restrained poses either a clear and present danger or a
• 39:29
  Speaker 1: serious and imminent threat to a protected competing interest. Two
• 39:33
  Speaker 1: the order is narrowly drawn, and three less restrictive alternatives
• 39:38
  Speaker 1: are not available. Levine, seven sixty four f. Dot two
• 39:42
  Speaker 1: d At five ninety five. In Levine, the underlying criminal
• 39:46
  Speaker 1: case which yielded an amended gag order that was the
• 39:50
  Speaker 1: subject of the decision in Radio and Television News Association,
• 39:54
  Speaker 1: the attorneys for a defendant charge with espionage sought a
• 39:58
  Speaker 1: rid of mandamas to dissolve in order order restraining the
• 40:01
  Speaker 1: speech of the defense attorneys in that case.
• 40:04
  Speaker 2: The order at issue specifically stated that all attorneys in
• 40:07
  Speaker 2: this case, all parties and their representatives and agents of Council,
• 40:12
  Speaker 2: and the parties shall not make any statements to members
• 40:16
  Speaker 2: of the news media concerning any aspect of this case
• 40:19
  Speaker 2: that bears upon the merits to be resolved by the jury,
• 40:22
  Speaker 2: and also included witnesses id At. Five ninety three. In
• 40:27
  Speaker 2: applying strict scrutiny to the restrictions of the speech of
• 40:29
  Speaker 2: the attorneys and witnesses which challenged the order in that case,
• 40:34
  Speaker 2: the Court held that the lower court properly found that
• 40:36
  Speaker 2: publicity posed a serious and imminent threat to the administration of.
• 40:41
  Speaker 1: Justice, but that the order was overbroad id at. Five
• 40:45
  Speaker 1: ninety eight and ninety nine. In recommending how to redraw
• 40:48
  Speaker 1: the order, the Court cited the subjects relating to ABA
• 40:52
  Speaker 1: Model Rules of Professional Conduct three dot six, nineteen ninety eight,
• 40:56
  Speaker 1: ABA Standards for Criminal Justice Standard A through Election nineteen
• 41:00
  Speaker 1: eighty two, and Model Code of Professional Responsibility DR SEVENH
• 41:05
  Speaker 1: one oh seven one ninety seven, which largely mirror Comment
• 41:09
  Speaker 1: five to I dot R dot P dot C three
• 41:12
  Speaker 1: dot six. In evaluating the possible least restrictive alternatives outlined
• 41:17
  Speaker 1: in Nebraska Press Association, the Court held that neither vor
• 41:21
  Speaker 1: Dyer jury instructions, change of venue, or postponement or sequestering
• 41:26
  Speaker 1: of the jury could address the threat to judicial integrity
• 41:30
  Speaker 1: posed by prejudicial extra judicial statements. In that case IDEA
• 41:35
  Speaker 1: at five ninety nine through six oh one, the various
• 41:38
  Speaker 1: alternatives to a restraining order would be either ineffective or counterproductive.
• 41:43
  Speaker 1: A restraining order on trial participants, however, is a highly
• 41:46
  Speaker 1: effective remedy for excessive trial publicity id at six hundred
• 41:51
  Speaker 1: through six oh one. This case similarly involves intense nationwide publicity.
• 41:56
  Speaker 1: This was at the forefront of respondent Judge MEGANI. Marrshall's
• 42:00
  Speaker 1: concerns during the January thirteenth, twenty twenty three meeting, whence
• 42:04
  Speaker 1: she stated that the case has garnered national and international
• 42:08
  Speaker 1: attention and that the attorneys should not be speculating to
• 42:11
  Speaker 1: the media. Ferguson declaration Exhibit A at page two. The
• 42:17
  Speaker 1: judge found that comments are harming the ability to impanel
• 42:20
  Speaker 1: a jury and issue the amended non dissemination order following
• 42:24
  Speaker 1: that meeting IDA at pages two and three. Similar to Levin,
• 42:28
  Speaker 1: this oral finding meets the requirement for the order to
• 42:31
  Speaker 1: address a serious and imminent threat to the Administration of Justice.
• 42:36
  Speaker 1: The order is narrowly drawn in that it does not
• 42:38
  Speaker 1: apply to witnesses and limit speech to the official public
• 42:42
  Speaker 1: record of the case and those categories addressed by comment
• 42:45
  Speaker 1: five to I dot R dot P dot C three
• 42:48
  Speaker 1: dot six. As noted in Levine, the possible least restrictive
• 42:52
  Speaker 1: alternatives discussed in Nebraska Press Association would run contradictory to
• 42:57
  Speaker 1: the harm addressed by the amended not dissemination Order and
• 43:01
  Speaker 1: are not possible alternatives to address pre trial publicity see
• 43:05
  Speaker 1: Nebraska Press Association, four to twenty seven US at five
• 43:09
  Speaker 1: sixty three and five sixty four. Therefore, even if this
• 43:13
  Speaker 1: Court expands the ability of the petitioners to challenge orders
• 43:16
  Speaker 1: which only incidentally affect their ability to interview, the amended
• 43:21
  Speaker 1: non dissemination Order meets the requirements of strict scrutiny see
• 43:26
  Speaker 1: the Court should not expand the First Amendment rights of
• 43:28
  Speaker 1: the petitioners by adopting a right to access trial participants.
• 43:33
  Speaker 1: The First Amendment to the US Constitution does not guarantee
• 43:37
  Speaker 1: the press full access to trial participants. Radio and Television
• 43:41
  Speaker 1: News Association, seven eighty one f dot two, d at
• 43:45
  Speaker 1: four forty six. Rather, the rights of the press are
• 43:48
  Speaker 1: limited to access of our criminal courts and criminal justice process,
• 43:53
  Speaker 1: as the media is granted access to the same information,
• 43:56
  Speaker 1: but nothing more that is available to the public. See
• 43:59
  Speaker 1: Richmon Nu Newspapers Incorporated. Versus Virginia, four forty eight US
• 44:04
  Speaker 1: five point fifty five, five seventy six, nineteen eighty and
• 44:07
  Speaker 1: Pell four seventeen US at eight thirty five. In Idaho,
• 44:11
  Speaker 1: Article one, Section nine of the Idaho Constitution grants that
• 44:15
  Speaker 1: every person may freely speak, write, and publish on all subjects,
• 44:20
  Speaker 1: being responsible for the abuse of that liberty. Idaho courts
• 44:24
  Speaker 1: have recognized a qualified right to public access a preliminary hearing,
• 44:29
  Speaker 1: but do not appear to have addressed the scope of
• 44:32
  Speaker 1: the First Amendment in relation to gag orders on trial participants.
• 44:36
  Speaker 1: See Cals versus Publishing Company, First Magistrate Court of the
• 44:40
  Speaker 1: First Judicial District of State County of Cootney, one eighteen
• 44:44
  Speaker 1: Idaho seven fifty three, nine to ninety finding that there
• 44:47
  Speaker 1: was a qualified First Amendment right of access to preliminary
• 44:51
  Speaker 1: hearings per Press enter Company. For Superior Court of California's decision.
• 44:56
  Speaker 1: The issue before this Court is whether the incidental life
• 45:00
  Speaker 1: effect of the amended non dissemination order on the petitioner's
• 45:03
  Speaker 1: ability to get responses from the attorneys, investigators, law enforcement personnel,
• 45:09
  Speaker 1: and agents of the prosecutor and defense counsel rises to
• 45:12
  Speaker 1: the level of First Amendment violations. This Court should decide
• 45:16
  Speaker 1: in line with Radio and Television News Association, holding that
• 45:20
  Speaker 1: the petitioners do not have standing to challenge any restrictions
• 45:25
  Speaker 1: the order might have on third party and should not
• 45:28
  Speaker 1: create a new right which has not been recognized in Idaho,
• 45:32
  Speaker 1: a right to access trial court participants bound by the
• 45:35
  Speaker 1: Idaho Rules of Professional Conduct. Conclusion, petitioners have failed to
• 45:40
  Speaker 1: meet the requirements of the issuance of a rid of
• 45:42
  Speaker 1: mendamus or rid of prohibition because the minimal and incidental
• 45:46
  Speaker 1: impact of the amended non dissemination order on the petitioner's
• 45:50
  Speaker 1: ability to access and interview the attorneys, investigators, law enforcement
• 45:55
  Speaker 1: and agents of the prosecutor and criminal defense attorney in
• 45:58
  Speaker 1: the underlying criminal case does not rise to the level
• 46:02
  Speaker 1: of a First Amendment infringement. The State respectfully presents these
• 46:06
  Speaker 1: requests to the Court, dated this third day of March
• 46:09
  Speaker 1: twenty twenty three, and signed by Bradley Rudley all Right folks,
• 46:13
  Speaker 1: that's gonna do it for our look at the response
• 46:16
  Speaker 1: to the associated press, motion to intervene and motion to
• 46:20
  Speaker 1: vacate the amended non dissemination order. All of the information
• 46:25
  Speaker 1: that goes with this episode can be found in the
• 46:28
  Speaker 1: description box.