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Mega Edition: Judge Hippler Denies Bryan Kohberger's Continuance (8/16/26) · Beyond The Horizon

• 0:04
  Speaker 1: What's up everyone, and welcome back to the program. Judge
• 0:08
  Speaker 1: Hipler recently shot down Brian Colberger's motion for a continuance,
• 0:12
  Speaker 1: and in this episode, we're going to take a look
• 0:14
  Speaker 1: at that order as we begin to ramp up our
• 0:16
  Speaker 1: coverage of the Brian Colberger trial. Case number CR zero
• 0:21
  Speaker 1: one DASH twenty four DASH three one sixty sixty five
• 0:25
  Speaker 1: redacted memorandum Decision and order on Defendant's motion to continue
• 0:30
  Speaker 1: State of Idaho Plaintiff first, Brian C. Coberger. The defendant
• 0:35
  Speaker 1: introduction before the court is defendant's motion to continue the
• 0:38
  Speaker 1: trial in this matter. The basis for the motion is threefold. First,
• 0:43
  Speaker 1: he asserts that the volume of discovery continues to pose
• 0:45
  Speaker 1: a challenge to his counsel's ability to timely and meaningfully
• 0:49
  Speaker 1: review all of it. Second, he asserts that there is
• 0:52
  Speaker 1: penalty phase investigation and preparation that still needs to be done. Third,
• 0:57
  Speaker 1: he asserts that recent and forthcoming publicity on the case
• 1:00
  Speaker 1: is highly prejudicial. Maintaining the current trial setting under these circumstances,
• 1:05
  Speaker 1: he argues, will render any conviction and sentence unconstitutional. The
• 1:11
  Speaker 1: State responds that defendant's motion is untimely and that he's
• 1:14
  Speaker 1: failed to show either good cause for continuing the trial
• 1:17
  Speaker 1: or prejudice that would result from maintaining the current trial setting.
• 1:22
  Speaker 1: Oral argument on the motion was held on June eighteenth,
• 1:25
  Speaker 1: twenty twenty five, after which the Court took the matter
• 1:28
  Speaker 1: under advisement. The court finds a continuance is not warranted
• 1:32
  Speaker 1: as defendant has not made a showing that there is
• 1:34
  Speaker 1: good cause to continue the trial or that his substantial
• 1:38
  Speaker 1: rights will be prejudiced by proceeding to trial is scheduled standard,
• 1:43
  Speaker 1: a motion for continuance of trial is addressed to the
• 1:46
  Speaker 1: sound discretion of the trial court State Versuchoa one sixty nine, Idaho,
• 1:51
  Speaker 1: twenty twenty two. On discretionary matters, the trial court must
• 1:55
  Speaker 1: one correctly perceive the issue as one of discretion to
• 1:59
  Speaker 1: act with in the outer boundaries of its discretion, three
• 2:02
  Speaker 1: consistently with the legal standards applicable to the specific choice
• 2:07
  Speaker 1: available to it, and four reached its decision by the
• 2:10
  Speaker 1: exercise of reason Lundberg vers My Fun Life, twenty eighteen. Analysis.
• 2:18
  Speaker 1: Under Idaho law, a criminal defendant seeking a continuance of
• 2:21
  Speaker 1: a trial must demonstrate that his or her substantial rights
• 2:25
  Speaker 1: will be prejudiced absent a continuance State vs. Kegel one
• 2:29
  Speaker 1: twenty six, nineteen ninety five. Unless an appellant shows that
• 2:33
  Speaker 1: his or her substantial rights have been prejudiced by reason
• 2:36
  Speaker 1: of a denial of his or her emotion for continuance,
• 2:40
  Speaker 1: appellate courts can only conclude that there was no abuse
• 2:43
  Speaker 1: of discretion. Trial judges necessarily require a great deal of
• 2:48
  Speaker 1: latitude in scheduling trials, the burden of assembling the witnesses, lawyers,
• 2:52
  Speaker 1: and jurors at the place in time for trial counsels
• 2:55
  Speaker 1: against continuances. Except for the most compelling reasons, there are
• 2:59
  Speaker 1: no mechountical tests for deciding when a denial of a
• 3:02
  Speaker 1: continuance is so arbitrary as to violate due process. The
• 3:06
  Speaker 1: answer must be found in the circumstances present in every case,
• 3:10
  Speaker 1: particularly in the reasons presented to the trial judge at
• 3:13
  Speaker 1: the time the request is denied. Matter of one one
• 3:17
  Speaker 1: seventy Idaho, nineteen sixty four. Where a continuance is sought
• 3:21
  Speaker 1: based on the late disclosure or discovery of evidence, the
• 3:24
  Speaker 1: alleged tardiness of the discovery must be shown to sole
• 3:28
  Speaker 1: prejudice the defendant's case. Preparation that a fair trial will
• 3:31
  Speaker 1: be denied State Verse tap Yo one twenty seven, Idaho
• 3:36
  Speaker 1: nineteen ninety five. The bare claim that additional investigation could
• 3:41
  Speaker 1: have been conducted is not sufficient to demonstrate on fair
• 3:44
  Speaker 1: prejudice so as to support a motion for a continuance. Additionally,
• 3:49
  Speaker 1: where a continuance is sought for the potential receipt of
• 3:52
  Speaker 1: evidence from further investigation, the motion is properly denied if
• 3:56
  Speaker 1: based on speculation. Row versu Katovich, California, August twenty six,
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  Speaker 1: twenty fourteen. Defendant argues the continuance is necessary for him
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  Speaker 1: to sufficiently review relevant discovery, conduct a full and complete
• 4:10
  Speaker 1: investigation of mitigation evidence, particularly claim newly revealed evidence that
• 4:15
  Speaker 1: allegedly raise red flags, and remedy the prejudice caused by
• 4:20
  Speaker 1: recent and upcoming inflammatory publicity and the alleged leak of
• 4:23
  Speaker 1: information to the media. Moving forward with the trial, he warns,
• 4:28
  Speaker 1: will violate his rights under the United States and Idaho
• 4:31
  Speaker 1: Constitution a due process to be free from cruel and
• 4:35
  Speaker 1: unusual punishment, to a fair trial, to effective assistance of counsel,
• 4:39
  Speaker 1: to present a defense and confront witnesses, and to affair
• 4:43
  Speaker 1: and reliable sentencing determination absent from defendant's materials. However, is
• 4:49
  Speaker 1: any good cause for the continuance or legitimate showing of
• 4:52
  Speaker 1: prejudice should the trial proceed as scheduled. A defendant has
• 4:58
  Speaker 1: not demonstrated a continuance of warranted to review discovery. Defendant
• 5:03
  Speaker 1: first contends that the vast amount of discovery in the
• 5:06
  Speaker 1: case renders it impossible for the defense team to review
• 5:09
  Speaker 1: the necessary and relevant discovery in a manner that allows
• 5:12
  Speaker 1: for it to comprehensively integrate it into his defense. He
• 5:16
  Speaker 1: further argues, without any support or explanation, that there are
• 5:20
  Speaker 1: a myriad of reasons that continue to arise from the
• 5:23
  Speaker 1: state failing to comply with discovery and expert disclosure deadlines,
• 5:27
  Speaker 1: a continuance, he argues, as necessary for a council to
• 5:31
  Speaker 1: mount an effective defense. The court, however, rejected this same
• 5:35
  Speaker 1: argument two months ago when defendants sought to strike the
• 5:38
  Speaker 1: death penalty and impose discovery obligations upon the state. In
• 5:43
  Speaker 1: its order, the court observed the utter lack of any
• 5:45
  Speaker 1: proof supporting defendant's accusations of discovery violations by the state.
• 5:51
  Speaker 1: More importantly, the court found defendant's complaints of being unable
• 5:55
  Speaker 1: to meaningfully review discovery entirely unconvincing, pointing out that Council
• 6:00
  Speaker 1: struggled to articulate in any meaningful way what evidence, let
• 6:04
  Speaker 1: alone relevant evidence, counsel had been unable to review over
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  Speaker 1: the past two plus years, and why efforts to facilitate
• 6:11
  Speaker 1: discovery review were not made long ago through this court
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  Speaker 1: and the resource. Judge defend in second round to this
• 6:19
  Speaker 1: argument fares no better. He again fails to identify the
• 6:22
  Speaker 1: relevant discovery that his council has yet to review. He
• 6:26
  Speaker 1: also fails to identify any steps his council has taken,
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  Speaker 1: particularly since the court's prior order to aid and processing
• 6:33
  Speaker 1: the yet unreviewed discovery. Moreover, he does not explain why
• 6:37
  Speaker 1: he waited to seek a continuance until after discovery closed,
• 6:41
  Speaker 1: expert disclosure deadlines passed, and the pre trial conference occurred.
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  Speaker 1: If defense counsel was truly struggling with discovery review, this
• 6:49
  Speaker 1: motion should have been made when the claim problem became apparent,
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  Speaker 1: and certainly should have been brought prior to the expiration
• 6:57
  Speaker 1: of discovery, all expert deadlines, and the final pre trial conference. Instead,
• 7:02
  Speaker 1: defense counsel has robustly litigated the case, retaining approximately two
• 7:07
  Speaker 1: dozen experts and a full mitigation team, engaging in extensive
• 7:11
  Speaker 1: motion practice, and disclosing witness and exhibit lists with nearia
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  Speaker 1: whisper that a continuance would be sought. These actions belie
• 7:20
  Speaker 1: as Counsel's ongoing and ultimately empty discovery complaints. Without more,
• 7:25
  Speaker 1: the court can only conclude that the Defense Council is
• 7:29
  Speaker 1: using the volume of discovery measured in terabytes as a
• 7:32
  Speaker 1: tactic to delay the preceding at the eleventh hours, simply
• 7:35
  Speaker 1: for the sake of delay, rather than a legitimate threat
• 7:38
  Speaker 1: of prejudice to defendants substantial rights. Perhaps even more problematic
• 7:44
  Speaker 1: and more telling is the utter failure of the Defense
• 7:46
  Speaker 1: Council now or at any time, to specify not only
• 7:51
  Speaker 1: what needs to be reviewed, but importantly when that review
• 7:54
  Speaker 1: would be complete and defendant ready for trial. Instead, defendant
• 7:59
  Speaker 1: seeks and on bounded continuance with no apparent plan to
• 8:02
  Speaker 1: complete the review of unspecified evidence that Council claims it
• 8:06
  Speaker 1: has yet to review. This is not sufficient to warrant
• 8:11
  Speaker 1: a continuance b Defendant is not established a continuance is
• 8:16
  Speaker 1: necessary to conduct a more thorough life history investigation and
• 8:20
  Speaker 1: identify necessary experts. Defendant next argues he needs additional time
• 8:26
  Speaker 1: to investigate and prepare mitigation evidence, which he contends is
• 8:30
  Speaker 1: necessary to uphold his constitutional rights, particularly those under the
• 8:35
  Speaker 1: Eighth and six Amendments. Specifically, the defense team claims that
• 8:40
  Speaker 1: to be effective, counsel must conduct an exhaustive and comprehensive
• 8:44
  Speaker 1: dive into defendants life history for additional mitigation evidence, analyze
• 8:49
  Speaker 1: the information into a cohesive narrative for the jury, and
• 8:53
  Speaker 1: identify any additional behavioral, cultural, scientific, and or mental health
• 8:58
  Speaker 1: experts that may be necessary Mary to develop the mitigation presentation.
• 9:03
  Speaker 1: Despite having hired a mitigation team two years ago, defense
• 9:06
  Speaker 1: counsel contends that recently discovered redacted have raised red flags
• 9:11
  Speaker 1: that defendant may have redacted. According to defendant's primary mitigation investigator,
• 9:16
  Speaker 1: Attorney redacted, her team of four have been diligent in
• 9:20
  Speaker 1: their investigation into defendant's life history, but there have been redacted.
• 9:25
  Speaker 1: She believes that with time, she will be able to
• 9:28
  Speaker 1: overcome these barriers. By redacted XPARTE declaration, May twentieth, twenty
• 9:33
  Speaker 1: twenty five, Defendant has not demonstrated a continuance to accommodate
• 9:38
  Speaker 1: further investigation is constitutionally required. The Eighth Amendment requires that
• 9:44
  Speaker 1: a capital defendant be allowed to present all relevant evidence
• 9:47
  Speaker 1: in mitigation State Verse Pain one twenty three, two thousand
• 9:51
  Speaker 1: and eight. See also Ettings versus Oklahoma nineteen eighty two.
• 9:56
  Speaker 1: Jerry must be allowed to consider all of the capital
• 9:58
  Speaker 1: defendants mitigating character evidence. In addition, a capital defendant has
• 10:04
  Speaker 1: a sixth Amendment right to affair trial and effective assistance
• 10:07
  Speaker 1: a council in both the guilt and penalty phases of
• 10:10
  Speaker 1: a capital murder trial. The assertion that the council needs
• 10:14
  Speaker 1: a continuance to conduct an exhaustive and comprehensive dive into
• 10:18
  Speaker 1: defendant's life history for additional mitigation evidence over states the
• 10:23
  Speaker 1: extent of his council's constitutional obligations. Council's investigation into mitigation
• 10:29
  Speaker 1: evidence must be reasonable. The Idaho Supreme Court and the
• 10:34
  Speaker 1: United States Supreme Court hold that defense council is not
• 10:37
  Speaker 1: required to investigate a defendant's entire life in order to
• 10:41
  Speaker 1: present constitutionally sufficient mitigation evidence State Verse Row one point
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  Speaker 1: thirty one, Idaho and Wiggins versus Smith, two thousand and three.
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  Speaker 1: We emphasize that Strickland does not require a council to
• 10:55
  Speaker 1: investigate every conceivable line of mitigating evidence, no matter how
• 10:59
  Speaker 1: unlikely the effort would be to assist the defendant at sentencing.
• 11:03
  Speaker 1: While defendant notes that ABA guidebines for mitigation function of
• 11:07
  Speaker 1: defense team and death penalty cases urge council in death
• 11:11
  Speaker 1: penalty cases to conduct an ongoing, exhaustive and independent investigation
• 11:16
  Speaker 1: of every aspect of the client's character, history, records, and
• 11:20
  Speaker 1: any circumstances of the offense. To meet their constitutional obligations,
• 11:25
  Speaker 1: courts look not to what is prudent or appropriate, but
• 11:29
  Speaker 1: only what is constitutionally compelled. See State verse Dunlap, twenty thirteen,
• 11:35
  Speaker 1: quoting Burger verse Chemp, nineteen eighty seven, Hall verse State
• 11:38
  Speaker 1: twenty eleven, rejecting argument that heightened procedural safeguards should be
• 11:43
  Speaker 1: employed at discovery in capital cases. Roe a capital case
• 11:48
  Speaker 1: is instructive here on post conviction, Rowe argued her council
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  Speaker 1: was deficient because they failed to perform an adequate investigation
• 11:56
  Speaker 1: into Roe's background in search of mitigating evidence one thirty
• 11:59
  Speaker 1: one on Idaho at ten ninety two. Specifically, Rowe argued
• 12:05
  Speaker 1: counsel should have investigated her life from birth to sentencing,
• 12:08
  Speaker 1: hearing that council were deficient in presenting her mental health
• 12:12
  Speaker 1: work up The court rejected this claim, holding that Council
• 12:16
  Speaker 1: was not required to investigate rose entire life in order
• 12:19
  Speaker 1: to objectively and reasonably present Rose mitigation evidence. The court
• 12:25
  Speaker 1: further noted that great lengths Council underwent to investigate and
• 12:29
  Speaker 1: present mitigating evidence from several of Roe's friends, health and
• 12:33
  Speaker 1: welfare records, letters from friends and family, and veterans, administration
• 12:37
  Speaker 1: records concerning Rose, husband's previous injuries, and the couple's relationship.
• 12:42
  Speaker 1: The investigation Defendant experts have undertaken over the past two
• 12:45
  Speaker 1: plus years far exceeds that in Row, and in fact
• 12:49
  Speaker 1: readily applies and appears to satisfy the relevant ABA guidelines
• 12:53
  Speaker 1: cited by the defendant. It includes, but is not limited to,
• 12:58
  Speaker 1: defendants kindergarten through PEA VD, education records including coursework, interviews,
• 13:03
  Speaker 1: and correspondent defendant's mental health and medical records, including redacted
• 13:09
  Speaker 1: records related to a childhood car accident, defendant's employment records,
• 13:13
  Speaker 1: mental health, education and employment records of defendant sisters, mental
• 13:17
  Speaker 1: health records for defendant's parents, fathers, military records, and social
• 13:22
  Speaker 1: security records. Court records from multiple generations of Coburger's family.
• 13:26
  Speaker 1: Paternal side VA records and death certificates from maternal and
• 13:31
  Speaker 1: paternal uncles. Multiple interviews with defendant and each immediate family member.
• 13:37
  Speaker 1: Interviews of two of defendant's fourth grade teachers, former boxing coach,
• 13:41
  Speaker 1: and psychologists who evaluated defendant in two thousand and five.
• 13:45
  Speaker 1: Interviews with multiple members of defendants extended family on maternal
• 13:49
  Speaker 1: and paternal side, Interviews with defendants professor and advisor at
• 13:53
  Speaker 1: the Sales University, interview of defendant's former co worker, interviews
• 13:58
  Speaker 1: of at least one family friend, and letters and jail
• 14:01
  Speaker 1: calls between defendant and his family. It's evident from the
• 14:06
  Speaker 1: report of defendant's mitigation expert doctor Orr, doctor Ryan, and
• 14:10
  Speaker 1: doctor Brahms that they have developed an expansive understanding of
• 14:14
  Speaker 1: defendant's family environment, social development history, family history both nuclear
• 14:19
  Speaker 1: and extended over multiple generations, educational history, and mental health
• 14:24
  Speaker 1: and medical history. From this evidence, these experts have rendered
• 14:28
  Speaker 1: several current diagnoses and identified other diagnoses for which the
• 14:32
  Speaker 1: defendant met criteria at some point in his life. Despite
• 14:36
  Speaker 1: such an extensive investigation, defendant claims additional investigation is warranted
• 14:41
  Speaker 1: to identify one redacted and two redacted. However, defendant has
• 14:47
  Speaker 1: not established that such investigation is constitutionally compelled, particularly given
• 14:52
  Speaker 1: the extensive work already completed. Rather, the claim need is
• 14:56
  Speaker 1: based on unqualified speculation by redacted. Defendant has not offered
• 15:02
  Speaker 1: any declaration by any of his disclosed mitigation experts opining
• 15:06
  Speaker 1: the same, nor has he pointed to anything in their
• 15:09
  Speaker 1: expert reports that would support redacted speculation. As noted, a
• 15:14
  Speaker 1: continuance of trial is not warranted to chase down mere
• 15:17
  Speaker 1: speculation that potential evidence exists Road twenty fourteen at two. Further,
• 15:23
  Speaker 1: defendant is not set forth a plan for continued investigation,
• 15:27
  Speaker 1: how much time it will take, what his team expects
• 15:29
  Speaker 1: the investigation will reveal why it's necessary to uphold his
• 15:33
  Speaker 1: constitutional rights and why these matters are only now being
• 15:37
  Speaker 1: raised with the court. Additionally, assuming guilt is found, the
• 15:40
  Speaker 1: penalty phase of the case will not begin until late
• 15:43
  Speaker 1: October or early November. Thus, there remains significant time for
• 15:48
  Speaker 1: redacted enter team to continue their investigation and to supplement
• 15:52
  Speaker 1: expert disclosures if warranted. All right, We're going to wrap
• 15:57
  Speaker 1: up right here and to the next episode. We're going
• 15:59
  Speaker 1: to pick up where we left off. All of the
• 16:01
  Speaker 1: information that goes with this episode can be found in
• 16:04
  Speaker 1: the description box. What's up everyone, and welcome back to
• 16:07
  Speaker 1: the program. In this episode, we're getting right back to
• 16:10
  Speaker 1: Judge Hipler's order denying Brian Coolberger's motion for a continuance.
• 16:16
  Speaker 1: One speculation that defendant redacted is simply that speculation built
• 16:21
  Speaker 1: on circumstantial evidence. Next part, redacted conditions which are currently
• 16:26
  Speaker 1: attributed to his own mitigation experts to his asd OCD
• 16:31
  Speaker 1: and or ADHD are consistent with childhood trauma. And five,
• 16:36
  Speaker 1: there is evidence of poverty, both generational and familial according
• 16:40
  Speaker 1: to redacted. Notably missing from Redacted's declaration is an indication
• 16:46
  Speaker 1: as to how she intends to confirm her suspicions or
• 16:49
  Speaker 1: how long she expects it to take, be that months, years,
• 16:53
  Speaker 1: or even decades. Defendant has been subjected to multiple lengthy
• 16:57
  Speaker 1: interviews by several different experts over the past two years.
• 17:01
  Speaker 1: Based on the expert reports reviewed by the court, Redacted's
• 17:04
  Speaker 1: defendant's family has likewise been extensively interviewed, and there has
• 17:09
  Speaker 1: been redacted and no report of that redacted. None of
• 17:13
  Speaker 1: defendants redacted have raised the alarm that redacted, despite having
• 17:18
  Speaker 1: the same information redacted relies upon. Next section completely redacted
• 17:23
  Speaker 1: instead it's an invitation for a perpetual continuance. More importantly,
• 17:28
  Speaker 1: aside from the redacted, all of this information has been
• 17:31
  Speaker 1: available and documented in the record for months. Yet again,
• 17:34
  Speaker 1: the defendant is now only moving for a continuance for
• 17:37
  Speaker 1: further investigation into redacted unsupported suspicion smacks of tactical gamesmanship
• 17:44
  Speaker 1: and delay. Absent more compelling evidence that Redacted redacted on
• 17:50
  Speaker 1: covering it and a reasonable timeline to do so, there
• 17:53
  Speaker 1: is no constitutional basis for further investigation, particularly on an
• 17:57
  Speaker 1: open ended basis with no plan to bring the matter
• 18:00
  Speaker 1: home two. Redacted Council's argument that more time is needed
• 18:05
  Speaker 1: to investigate whether Redacted likewise squarely unsupported Redacted. Defendant has
• 18:11
  Speaker 1: never moved for an extension to his disclosure deadline for
• 18:15
  Speaker 1: penalty phase experts so as to follow further opinions in
• 18:18
  Speaker 1: this regard. Nevertheless, Redacted, who again is not even marginally
• 18:23
  Speaker 1: qualified to opine redacted, believes that there is evidence that
• 18:27
  Speaker 1: redacted and seeks additional time to unearth it her support,
• 18:31
  Speaker 1: which has not been provided to the court. Redacted, again,
• 18:34
  Speaker 1: not one of defendant's redacted experts who have had the
• 18:37
  Speaker 1: same information has identified has submitted a declaration stating that
• 18:42
  Speaker 1: they may change their diagnosis based on further investigation Redacted. Rather,
• 18:48
  Speaker 1: it's based on redacted speculation that further investigation might change Redacted.
• 18:54
  Speaker 1: Such speculation is not grounds for a continuance next section
• 18:58
  Speaker 1: completely redacted. Not only is their lack of support in
• 19:02
  Speaker 1: the record for Redacted's anticipation that more investigation into redacted
• 19:07
  Speaker 1: to change their minds, and Redacted, her team and Defense
• 19:11
  Speaker 1: Council have known since November of twenty twenty four that Redacted.
• 19:16
  Speaker 1: Neither the defense team nor Redacted have articulated what efforts
• 19:19
  Speaker 1: they have made, if any, since the time to understand
• 19:22
  Speaker 1: the basis of redacted. Further, they have not indicated what
• 19:26
  Speaker 1: the plan they have to obtain this information, if a
• 19:29
  Speaker 1: continuance is granted, or how long it will take. Redacted
• 19:34
  Speaker 1: in some defendant is not demonstrated that a continuance for
• 19:37
  Speaker 1: further investigation into potential mitigation evidence is necessary to uphold
• 19:42
  Speaker 1: his constitutional rights. The right to present mitigation evidence and
• 19:46
  Speaker 1: the right to effective assistance of counsel do not necessitate
• 19:49
  Speaker 1: an investigation of his entire history. They simply require that
• 19:53
  Speaker 1: the investigation be reasonable while easily available mitigation evidence cannot
• 19:58
  Speaker 1: be ignored. Defendants demonstrates that the evidence they are attempted
• 20:02
  Speaker 1: to obtain is far from easily available, and in fact
• 20:06
  Speaker 1: may not even exist don Lap one fifty five at
• 20:09
  Speaker 1: forty four. Further, the evidence prompting the need for further
• 20:12
  Speaker 1: investigation has redacted been available for months, yet it only
• 20:17
  Speaker 1: now that the defendant seeks a continuance. This tactic seems
• 20:21
  Speaker 1: geared toward achieving delay rather than a good faith effort
• 20:25
  Speaker 1: to obtain meaningful mitigation evidence. Moreover, defendant provides absolutely no
• 20:30
  Speaker 1: plan for how further investigation will proceed, who will be interviewed,
• 20:34
  Speaker 1: or how long it will take. The Constitution does not demand,
• 20:38
  Speaker 1: and this court is not willing to continue the trial
• 20:41
  Speaker 1: indefinitely to allow the defense team to embark on a
• 20:44
  Speaker 1: phishing expedition pulling at every conceivable thread in defendant's familial tapestry.
• 20:51
  Speaker 1: Counsel's assertion that they will be better prepared with more
• 20:54
  Speaker 1: time and more evidence is an assertion shared by every
• 20:57
  Speaker 1: lawyer involved in a trial. At some point, and particularly
• 21:02
  Speaker 1: after two and one half years of investigation, the defense
• 21:06
  Speaker 1: team must be satisfied with what they have, which in
• 21:09
  Speaker 1: this case is extensive. In addition, while the crime victim's
• 21:13
  Speaker 1: rites to a timely disposition under Article I, Section twenty
• 21:17
  Speaker 1: two of the Idaho Constitution and IC Section nineteen fifty
• 21:21
  Speaker 1: three oh six do not trump a defendant's federal constitutional rights,
• 21:26
  Speaker 1: they provide an additional justification for a proceeding with trial
• 21:29
  Speaker 1: as scheduled. For these reasons, a continuance is not warranted
• 21:34
  Speaker 1: See a continuance is not warranted due to pre trial publicity.
• 21:39
  Speaker 1: Defendant next seeks a continuance due to recent inflammatory pre
• 21:42
  Speaker 1: trial publicity. On May ninth, twenty twenty five, approximately three
• 21:48
  Speaker 1: months before a trial is said to begin, Dayline NBC
• 21:51
  Speaker 1: aired a two hour episode about the case. The episode
• 21:55
  Speaker 1: included details and materials about the case which, if true,
• 21:59
  Speaker 1: were not publicly available and which promote a narrative of
• 22:02
  Speaker 1: guilt defendant who advises that On July ninth, twenty twenty five,
• 22:07
  Speaker 1: Amazon Prime Video is planning to release a four part
• 22:10
  Speaker 1: docu series about the homicides, and on July fourteenth, twenty
• 22:13
  Speaker 1: twenty five, crime author James Patterson is set to release
• 22:17
  Speaker 1: a book he wrote about the same defendant contends that
• 22:20
  Speaker 1: this media coverage so close to trial threatens his right
• 22:23
  Speaker 1: to a fair trial by an impartial jury, which can
• 22:26
  Speaker 1: only be fixed by a continuance. In addition, defendant argues
• 22:30
  Speaker 1: that a continuance is necessary to investigate the source of
• 22:34
  Speaker 1: the leaks to the media and impose accountability. The Court
• 22:37
  Speaker 1: does not agree that either argument compels a continuance. One
• 22:42
  Speaker 1: defendant's right to a fair trial is not denied by
• 22:44
  Speaker 1: the pre trial publicity, which is not likely to subside
• 22:47
  Speaker 1: with time. The sixth Amendment to the US Constitution affords
• 22:51
  Speaker 1: all criminal defendants the fundamental right to a fair trial
• 22:55
  Speaker 1: Strickland versus Washington, nineteen eighty four. This includes the right
• 22:59
  Speaker 1: to have an impartial jury who knows as little as
• 23:02
  Speaker 1: possible of the case decide the defendants guilt based on
• 23:05
  Speaker 1: material admitted into evidence before them. In a court proceeding
• 23:09
  Speaker 1: on influence by extra judicial statements Genteel verse State Bar
• 23:14
  Speaker 1: of Nevada, nineteen ninety one. A trial judge has affirmative
• 23:18
  Speaker 1: duty to minimize the effects of pre trial publicity Shepherd vers. Maxwell,
• 23:23
  Speaker 1: nineteen sixty six. In Shepherd, which is relied upon by
• 23:26
  Speaker 1: the defendant, the United States Supreme Court recognized the adverse
• 23:30
  Speaker 1: effect inflammatory publicity has on the ability to obtain an
• 23:34
  Speaker 1: impartial jury, and strongly urged trial courts to act quickly
• 23:38
  Speaker 1: and forcefully in addressing such publicity three eighty four US
• 23:42
  Speaker 1: at three thirty five, three sixty one. The Court further
• 23:46
  Speaker 1: advised that where there is reasonable likelihood that prejudicial news
• 23:50
  Speaker 1: prior to trial will prevent a fair trial, the judge
• 23:53
  Speaker 1: should continue the case until the threat of bates or
• 23:56
  Speaker 1: transfer it to another county not so permeated with publicity
• 24:01
  Speaker 1: idea three sixty three. This statement from Shepherd, however, must
• 24:05
  Speaker 1: be read in context. The media coverage in the case
• 24:08
  Speaker 1: is far different from that present here. In Shepherd, news
• 24:11
  Speaker 1: reporters extensively covered the story of Sam Shepherd, who was
• 24:15
  Speaker 1: accused of bludgeoning his pregnant wife to death. The court
• 24:18
  Speaker 1: examined the extensive media fanfare surrounding the case, noting Shepherd
• 24:23
  Speaker 1: was not granted a change of venue to a locale
• 24:26
  Speaker 1: away from where the publicity originated, nor was his jury
• 24:29
  Speaker 1: sequestered for months. The viral and publicity about Shepherd and
• 24:33
  Speaker 1: the murder had made the case notorious. Charges and counter
• 24:37
  Speaker 1: charges were aired in the news media beside those for
• 24:40
  Speaker 1: which Shepherd was called to trial. In addition, only three
• 24:44
  Speaker 1: months before trial, Shepherd was examined for more than five
• 24:47
  Speaker 1: hours without counsel during a three day inquest which ended
• 24:50
  Speaker 1: in a public brawl. The inquest was televised live from
• 24:54
  Speaker 1: a high school gymnasium, seating hundreds of people. Furthermore, the
• 24:58
  Speaker 1: trial began two weeks before a hotly contested election at
• 25:02
  Speaker 1: which both chief Prosecutor Mahone and Judge Blythin were candidates
• 25:06
  Speaker 1: for judge ships. The court found that there was no
• 25:08
  Speaker 1: doubt that this deluge of publicity reached at least some
• 25:12
  Speaker 1: of the jury, given that when the jury was questioned
• 25:14
  Speaker 1: for the only time, two jurors admitted in open court
• 25:17
  Speaker 1: to hearing the highly inflammatory charge that a prison inmate
• 25:21
  Speaker 1: claimed Shepherd was the father of her illegitimate child. Nevertheless,
• 25:26
  Speaker 1: the trial judge rejected requests by defense counsel for the
• 25:29
  Speaker 1: jurors to be asked whether they had rhere or heard
• 25:32
  Speaker 1: specific prejudicial comments about the case. Further the jurors were
• 25:36
  Speaker 1: subjected to newspaper, radio, and television coverage of the trial
• 25:41
  Speaker 1: while not taking part in the proceedings, and were allowed
• 25:43
  Speaker 1: to go their separate ways outside of the courtroom without
• 25:46
  Speaker 1: adequate directions not to read or listen to anything concerning
• 25:50
  Speaker 1: the case. The judge gave suggestions and request of the
• 25:54
  Speaker 1: jurors at intervals during the trial to refrain from commenting
• 25:58
  Speaker 1: upon the case, but the jurors were thrust into the
• 26:01
  Speaker 1: role of celebrities by the judge's failure to insulate them
• 26:04
  Speaker 1: from the reporters and photographers. Bedlam reigned at the courthouse
• 26:09
  Speaker 1: during the trial, and newsmen took over practically the entire
• 26:13
  Speaker 1: court room. The court reverse Shepherd's murdered conviction. Crucially, the
• 26:18
  Speaker 1: court stated that although the pre trial publicity alone was
• 26:21
  Speaker 1: not sufficient to warrant relief, when combined with the carnival
• 26:24
  Speaker 1: atmosphere the press created at trial, and the judges in
• 26:28
  Speaker 1: ability or lack of desire to control the courtroom proceedings,
• 26:32
  Speaker 1: Shepherd's right to a fair trial was denied three eighty
• 26:36
  Speaker 1: four US and Nebraska Association versus. Stuart, nineteen seventy six.
• 26:43
  Speaker 1: Pre trial publicity, even pervasive adverse publicity, does not inevitably
• 26:47
  Speaker 1: lead to an unfair trial Skilling versus US twenty ten.
• 26:53
  Speaker 1: If months of violent pre trial media coverage was not
• 26:56
  Speaker 1: enough to deny due process in Shepherd, it is certainly
• 26:59
  Speaker 1: not enough in this case. Where the media coverage has
• 27:02
  Speaker 1: been far less pervasive. In addition, the court is employing
• 27:05
  Speaker 1: the measures recommended in Shepherd to protect a defendant from
• 27:09
  Speaker 1: prejudicial pre trial publicity, to wit. One limiting the number
• 27:13
  Speaker 1: of reporters in the courtroom during the trial, two, insulating
• 27:17
  Speaker 1: prospective witnesses from interviews with the media about their perspective testimony,
• 27:22
  Speaker 1: and three making an effort to control the release of leads,
• 27:25
  Speaker 1: information and gossip to the press by police officers, witnesses,
• 27:29
  Speaker 1: and council for both sides to avoid disclosure of inaccurate
• 27:33
  Speaker 1: and or inadmissible information to the public. Ultimately, whether defendant
• 27:39
  Speaker 1: can receive a fair trial depends on whether a fair
• 27:42
  Speaker 1: and impartial jury can be seated, As the United States
• 27:46
  Speaker 1: Supreme Court is said to hold that the mere existence
• 27:48
  Speaker 1: of any preconceived notion as to the guilt or innocence
• 27:51
  Speaker 1: of an accused, without more is sufficient to rebut the
• 27:54
  Speaker 1: presumption of a prospective jurors impartiality would be established an
• 27:58
  Speaker 1: impossible standard. It is sufficient if the jur can lay
• 28:02
  Speaker 1: aside his impression or opinion and render a verdict based
• 28:06
  Speaker 1: on the evidence presented in court. Accordingly, the Idaho Supreme
• 28:10
  Speaker 1: Court has long recognized that trial courts can successfully select
• 28:13
  Speaker 1: an impartial jury despite widespread publicity State verse Windsor one ten, Idaho,
• 28:19
  Speaker 1: nineteen eighty five. In State Verse Federally, a capital case,
• 28:23
  Speaker 1: the Idaho Supreme Court disagreed with the defendants claim that
• 28:26
  Speaker 1: the extensive publicity prior to trial deprived him of the
• 28:29
  Speaker 1: opportunity to be tried before an inpartial jury one oh nine, Idaho,
• 28:34
  Speaker 1: nineteen eighty five. Because each juror was extensively questioned to
• 28:38
  Speaker 1: determine the degree of their exposure to pre trial publicity,
• 28:42
  Speaker 1: the Court found that the defendant's rights were preserved. In
• 28:46
  Speaker 1: the defendant subsequent habeas case, the Ninth Circuit examined at
• 28:50
  Speaker 1: length the entire Vordear process and found no prejudice, even
• 28:54
  Speaker 1: though on the day a jury selection, the case was
• 28:56
  Speaker 1: covered on the front page of the local newspaper as
• 28:59
  Speaker 1: well as on TV and the radio. With the measures
• 29:03
  Speaker 1: the court has already put in place to protect the
• 29:05
  Speaker 1: defendant against pre trial media coverage and the courts carefully
• 29:09
  Speaker 1: crafted jury selection process, there's no reason to think that
• 29:12
  Speaker 1: an impartial jury cannot be selected through a searching and
• 29:16
  Speaker 1: robust vor Deer. In addition, While continuances may be appropriate
• 29:22
  Speaker 1: if pre trial scrutiny is reasonably expected to fade with time,
• 29:25
  Speaker 1: it's an ineffective tool where publicity is such that there
• 29:29
  Speaker 1: is no reason to anticipate that it would subside by
• 29:32
  Speaker 1: any delay, which would put off the trial indefinitely. In
• 29:36
  Speaker 1: Us versus Moreno Morales, the Court of Appeals for the
• 29:39
  Speaker 1: First Circuit noted the denial of emotion for an indefinite
• 29:43
  Speaker 1: or substantial continuance predicated upon widespread adverse pre trial publicity
• 29:48
  Speaker 1: about a defendant is all the more warranted when, as here,
• 29:52
  Speaker 1: there is sound reason to believe that the defendant will
• 29:54
  Speaker 1: continue to be controversial publicity, invoking figure and ten, since
• 30:00
  Speaker 1: there is little assurance that the passage of the time
• 30:02
  Speaker 1: will result in the abatement or a subsidence of critical
• 30:05
  Speaker 1: publicity in the foreseeable future, the Court observed that the
• 30:09
  Speaker 1: sixth Amendment guarantee of a speedy trial is one to
• 30:12
  Speaker 1: which the government and society, as well as he accused,
• 30:15
  Speaker 1: has a claim, and stated that society cannot be utterly
• 30:19
  Speaker 1: deprived of the right to prosecute and try someone for
• 30:22
  Speaker 1: a crime within a reasonable time merely because of widespread
• 30:26
  Speaker 1: community knowledge here there is no assurance that the pre
• 30:29
  Speaker 1: trial publicity will fade with time. The murders occurred over
• 30:33
  Speaker 1: two and a half years ago. The circumstances of the
• 30:35
  Speaker 1: murders were provocative for college students in a small Idaho
• 30:39
  Speaker 1: college town were brutally stabbed to death by an unknown perpetrator.
• 30:43
  Speaker 1: It was an immediate media sensation and garnered widespread attention
• 30:48
  Speaker 1: that not only continues to persist, but continues to grow.
• 30:52
  Speaker 1: Eighteen months ago, defendant move for a change of venue
• 30:55
  Speaker 1: from Leyta County due in part to the extensive inflammatory
• 30:58
  Speaker 1: pre trial publicity and allegations made about mister Kolberger to
• 31:02
  Speaker 1: the public by media that will be an admissible at trial.
• 31:07
  Speaker 1: Motion for a change of venue January thirtieth, twenty twenty four.
• 31:11
  Speaker 1: He argued that Leta County was not large enough to
• 31:14
  Speaker 1: avoid the bias caused by the pervasive prejudicial publicity. Defendant's
• 31:19
  Speaker 1: motion was granted and as a result, the trial date
• 31:22
  Speaker 1: was continued by approximately ten weeks. Those additional ten weeks
• 31:26
  Speaker 1: have not resulted in fading media attention. It has only
• 31:29
  Speaker 1: given the media more time an opportunity to provide coverage
• 31:33
  Speaker 1: to a public audience, which is clamoring for answers. The
• 31:37
  Speaker 1: longer the public is made to sit and wait for
• 31:40
  Speaker 1: the facts to come out at trial, the more time
• 31:42
  Speaker 1: there is for inflammatory speculative stories, movies and books to circulate,
• 31:48
  Speaker 1: and more time for prior ones to re broadcast purchased, viewed,
• 31:52
  Speaker 1: and consumed by the public. Proceeding with the trial of
• 31:55
  Speaker 1: schedule will likely avoid negative consequences from future publicity. Thus,
• 32:01
  Speaker 1: the court finds a continuance is not warranted based on
• 32:04
  Speaker 1: the media coverage. Rather, careful and patient vorder is prescribed. Two.
• 32:10
  Speaker 1: A continuance is not warranted to investigate the leak of information.
• 32:14
  Speaker 1: Defendant also asserts that a continuance is necessary to accommodate
• 32:18
  Speaker 1: the Special Prosecutor's investigation into the source of the leaks
• 32:21
  Speaker 1: to the media and to impose accountability with regard to
• 32:26
  Speaker 1: the Dateline episode. Defended points out that Dateline represented that
• 32:29
  Speaker 1: the material came from sources close to the investigation. He
• 32:34
  Speaker 1: notes that Patterson's upcoming book on the crime Promises claims
• 32:37
  Speaker 1: to be the most comprehensive narrative of the investigation and
• 32:41
  Speaker 1: evidence to date, and is based on over three hundred
• 32:44
  Speaker 1: interviews several individuals, including the victim's families and local law enforcement.
• 32:49
  Speaker 1: He also notes that the Amazon Prime docuseries promises to
• 32:53
  Speaker 1: be told in a captivating, tense and emotionally wrenching detail
• 32:57
  Speaker 1: by those involved and a by the crime. He argues
• 33:02
  Speaker 1: that if any of the leaks came from witnesses the
• 33:04
  Speaker 1: state intends to call, or from others involved in the investigation,
• 33:08
  Speaker 1: the information is Brady material because it would serve to
• 33:11
  Speaker 1: impeach the leaker's credibility and may be exculpatory in nature.
• 33:16
  Speaker 1: He adds that if the investigation reveals that other state
• 33:18
  Speaker 1: agents had information about the leaks but failed to disclose it,
• 33:22
  Speaker 1: this omission would constitute a Brady violation. As noted, a
• 33:27
  Speaker 1: continuance is not warranted where the information sought thereby as
• 33:30
  Speaker 1: mere speculation. Defendant's Brady argument is built on a house
• 33:34
  Speaker 1: of speculative assumptions. An assumption that there was a leak
• 33:38
  Speaker 1: by persons bound by the non dissemination order, an assumption
• 33:41
  Speaker 1: the leaker will be found, an assumption that the leaker
• 33:45
  Speaker 1: were law enforcement, an assumption that the leaker or others
• 33:48
  Speaker 1: who may be complicit will be testifying as government witnesses,
• 33:52
  Speaker 1: and an assumption that the witness will likely be material.
• 33:57
  Speaker 1: Such assumptions are not grounds for a continuance, particularly given
• 34:01
  Speaker 1: there is no guarantee if and when it will be
• 34:04
  Speaker 1: confirmed or debunked. This trial cannot be held hostage indefinitely
• 34:08
  Speaker 1: to the outcome of the investigation, particularly given the very
• 34:12
  Speaker 1: significant chance the leakers may never be discovered. Thus, the
• 34:17
  Speaker 1: Court will continue the trial pending the results of an
• 34:19
  Speaker 1: investigation based on speculation and it will be successful, and
• 34:24
  Speaker 1: the hope that impeachment evidence may be uncovered as a result.
• 34:27
  Speaker 1: Order based on the foregoing defendant's motion to continue is denied.
• 34:32
  Speaker 1: This was dated June twenty sixth and it was signed
• 34:36
  Speaker 1: by Judge Hitler. All of the information that goes with
• 34:39
  Speaker 1: this episode can be found in the description box.