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Mega Edition: Bryan Kohberger And The State Of Idaho Clash Over A Continuance (8/25/26) · Beyond The Horizon

0:00
Speaker 1: What's up everyone, and welcome back to the program. I
0:03
Speaker 1: know we've been spending a lot of time on what's
0:05
Speaker 1: going on with Diddy recently, but that doesn't mean that
0:08
Speaker 1: things aren't moving up in Moscow. And in this episode,
0:12
Speaker 1: we're going to keep the conversation going as the State
0:15
Speaker 1: of Idaho has now responded to Brian Kolberger and his
0:18
Speaker 1: motion to continue case number CR zero one Dash twenty
0:25
Speaker 1: four DASH three one sixty sixty five. State's opposition to
0:29
Speaker 1: defendant's motion to continue introduction it is time to try
0:34
Speaker 1: this case. Defendant was arrested in late December of twenty
0:37
Speaker 1: twenty two and was indicted in May of twenty twenty three.
0:41
Speaker 1: He successfully moved to transfer venue to Ada County. In
0:45
Speaker 1: October twenty twenty four, this court entered its scheduling order
0:49
Speaker 1: setting deadlines for pre trial motions and expert disclosures. Defendant
0:53
Speaker 1: complied with those deadlines without having or moving for a continuance,
0:57
Speaker 1: including by disclosing six expert reports for the penalty phase,
1:02
Speaker 1: disclosing over twenty one hundred pages of purported mitigation materials,
1:07
Speaker 1: listing fifty five penalty phase witnesses, and identifying one hundred
1:11
Speaker 1: and thirty two exhibits he may introduce during the penalty
1:15
Speaker 1: phase of his trial. But now, after all discovery deadlines
1:18
Speaker 1: have passed and after the court conducted the pre trial conference,
1:22
Speaker 1: Defendant seeks a trial continuance of unspecified length. He bases
1:27
Speaker 1: his request on his claim that his mitigation investigation is incomplete.
1:32
Speaker 1: While state is unable to see whether defendants ex parte
1:36
Speaker 1: filing to the court contains specifics his motion does not.
1:40
Speaker 1: Defendant has not shared what new evidentary materials he seeks
1:44
Speaker 1: to obtain or how additional investigation will actually produce them. Overall,
1:48
Speaker 1: the record before the court shows that Defendant's investigation has
1:52
Speaker 1: already plowed the necessary ground. While Defendant is fully entitled
1:57
Speaker 1: to due process, this court should exercise its broad discretion
2:00
Speaker 1: to deny Defendant's eleventh hour motion. First, defendant cannot show
2:05
Speaker 1: good cause for prejudice, even under the heightened non binding
2:08
Speaker 1: ABAA standards he seeks to impose on the court. His
2:12
Speaker 1: counsel's resources and investigation to date have been adequate. Even
2:17
Speaker 1: setting aside, the defense team still has more time to
2:21
Speaker 1: prepare its mitigation case. Moreover, Idaho's constitution also grants the
2:25
Speaker 1: victims the right to a timely disposition of the case.
2:29
Speaker 1: The court should give these victims right substantial weight in
2:33
Speaker 1: considering the motion. Finally, while the publicity surrounding this trial
2:37
Speaker 1: is a challenge, defendant has not shown and cannot show,
2:41
Speaker 1: the continuing this trial will make things any easier. It
2:45
Speaker 1: is just as likely that the delay will make it
2:48
Speaker 1: harder to see the jury. For all these reasons, the
2:51
Speaker 1: court should deny Defendant's motion. Procedural and factual background, defendant
2:57
Speaker 1: was appointed as lead counsel in December of twenty twenty
2:59
Speaker 1: ti two. In March of twenty twenty three, a second
3:03
Speaker 1: attorney was appointed to represent him. Then in February of
3:07
Speaker 1: this year, a third attorney was appointed to the defense team.
3:11
Speaker 1: The first District Public defender has also been participating in
3:14
Speaker 1: the defense. In addition to his lawyers and their staff,
3:18
Speaker 1: defendant has two experienced investigators and a mitigation specialists working
3:23
Speaker 1: on his behalf. In January of twenty twenty four, defendant
3:27
Speaker 1: moved for a change of venue from Leayta County due
3:30
Speaker 1: to the publicity surrounding the case and the size of
3:33
Speaker 1: Layta County. His motion was granted and the case was
3:36
Speaker 1: moved to Ada. County. On October ninth, twenty twenty four,
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Speaker 1: this court issued the Operative Scheduling Order that contained deadlines
3:44
Speaker 1: for motions, expert disclosures, and pre trial filings. More recently,
3:50
Speaker 1: at the pre trial motions hearing on April ninth, twenty
3:52
Speaker 1: twenty five, the court advised defendant's counsel to ask for
3:56
Speaker 1: more resources if the defense team needed assistance reviewing discuss
4:00
Speaker 1: The state does not know if this occurred. Throughout the case,
4:04
Speaker 1: Defendant has been able to comply with the deadlines in
4:07
Speaker 1: the scheduling order, pertinent to the instant motion defendant has.
4:12
Speaker 1: On January twenty third, twenty twenty five, made his Guilt
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Speaker 1: Phase expert disclosures, consisting of reports from sixteen experts, including
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Speaker 1: a psychologist who conducted a mental health examination of defendant
4:25
Speaker 1: and a forensic psychiatrist who researched his life history. On
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Speaker 1: March third, twenty twenty five, supplemented his Guild Phase expert
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Speaker 1: disclosures with reports from two additional experts. As of June
4:37
Speaker 1: twenty twenty five, had disclosed in discovery over twenty five
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Speaker 1: hundred photos and videos, over thirty five hundred pages of
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Speaker 1: investigative materials, and many megabytes of electronic data related to
4:50
Speaker 1: the guild phase. On March thirty first, twenty twenty five,
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Speaker 1: he made his penalty phase expert disclosures, consisting of amended
4:57
Speaker 1: reports from doctor Or and the Doctor Ryan, respectively, plus
5:01
Speaker 1: reports from four additional experts, three of whom are behavioral
5:05
Speaker 1: health neurology professionals, and as of June twenty twenty five,
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Speaker 1: had disclosed approximately twenty one hundred pages of reported mitigation
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Speaker 1: material and identified fifty five defense witnesses and one hundred
5:18
Speaker 1: and thirty two defense exhibits for potential use during the
5:22
Speaker 1: penalty phase. In this case, defendant also opposed the state's
5:26
Speaker 1: motion for examination of defendant pursuant Idaho Code Section eighteen
5:31
Speaker 1: Dash two O seven for an extension of time to
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Speaker 1: complete rebuttal penalty phase expert disclosures, argued May fifth, twenty
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Speaker 1: twenty five. At that time, defendant did not preview for
5:42
Speaker 1: the state or the court what he would seek trial continuance,
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Speaker 1: and the court denied the state's request for a personality
5:49
Speaker 1: testing by its expert in part because the pending trial
5:53
Speaker 1: date conflicted with the time that would be necessary to
5:56
Speaker 1: explore the issue legal background. Trial judges necessarily require a
6:02
Speaker 1: great deal of latitude in scheduling trials. State vers. Cagel, Idaho,
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Speaker 1: nineteen ninety five. Accordingly, the decision to grant or deny
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Speaker 1: a motion for a continuance rests within the sound discretion
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Speaker 1: of the trial court. State verse. Ransom, Idaho, nineteen ninety three.
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Speaker 1: When reviewing a trial court's decision for an abusive discretion,
6:22
Speaker 1: Idaho appellate courts analyze whether the trial court one correctly
6:26
Speaker 1: perceived the issues as one a discretion, two acted within
6:30
Speaker 1: the outer boundaries of its discretion, three acted consistently with
6:34
Speaker 1: the legal standards applicable to the specific choice available to it,
6:38
Speaker 1: and four reached its decision by the exercise of reason.
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Speaker 1: State vers. Rod Do, Idaho, twenty twenty five. The State
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Speaker 1: Supreme Court has held that the denial of a motion
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Speaker 1: for a continuance is grounds for relief only where the
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Speaker 1: trial court's action is so arbitrary as to violate due
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Speaker 1: process Hunger verst. Sapphafyite, three seventy six, nineteen sixty four. Similarly,
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Speaker 1: under Idaho law, unless an appellent shows that his or
7:05
Speaker 1: her substantial rights have been prejudiced by reason of a
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Speaker 1: denial of his or her motion for a continuance. Appellate
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Speaker 1: courts can only conclude that there was no abuse of
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Speaker 1: discretion Cagel eight ninety one, at ten fifty seven. The
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Speaker 1: bare claim that additional investigation could have been conducted is
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Speaker 1: not sufficient to demonstrate unfair prejudice as to support a
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Speaker 1: motion for continuance. State Verstapia, Idaho, nineteen ninety five, Roe
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Speaker 1: First Kadovich August twenty six, twenty fourteen, California, reviewing Ninth
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Speaker 1: Circuit case law and explaining that there are no mechanical
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Speaker 1: tests for deciding when such denial violates due process, but
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Speaker 1: that at a minimum, some showing of actual prejudice must
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Speaker 1: be made in exercising their discretion. Trial courts are also
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Speaker 1: guided by the Victim Rights Amendment to the Idaho Constitution,
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Speaker 1: Article one, section twenty two and Idaho Codes Section nineteen
8:02
Speaker 1: fifty three oh six. Both provisions and title victims to
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Speaker 1: a timely disposition of the case. Section nineteen fifty three
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Speaker 1: oh six three expressly provides that this right shall apply
8:14
Speaker 1: equally to the immediate families of homicide victims. The argument
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Speaker 1: defendant couches his motion in terms of his constitutional rights
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Speaker 1: to due process, to effective assistance of counsel, to an
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Speaker 1: individualized sentencing determination, and to a fair trial in light
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Speaker 1: of intense media coverage. But he has not demonstrated that
8:35
Speaker 1: these rights, which must be evaluated alongside the victims' rights
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Speaker 1: and the overall administration of justice, will be violated if
8:43
Speaker 1: this case proceeds as currently scheduled. For the reasons discussed below,
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Speaker 1: the Court should deny the motion. One, the Court should
8:51
Speaker 1: exercise its discretion to deny the defendant's motion because he
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Speaker 1: has not shown good cause for a continuance or that
8:58
Speaker 1: he will be prejudiced that trial. Well, the Court shot
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Speaker 1: denied defendant's motion because he cannot show good cause or
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Speaker 1: potential prejudice Procedurally. He does not explain why he waited
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Speaker 1: to see continuance until after discovery closed, expert disclosure deadlines passed,
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Speaker 1: and the pre trial conference happened. Substantively, he ignores Idaho
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Speaker 1: Supreme Court death penalty precedent, holding that council is not
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Speaker 1: required to investigate a defendant's entire life before he can
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Speaker 1: be tried or sentenced State Verse Row, nineteen ninety eight.
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Speaker 1: He neither specifies additional areas for investigation nor explains what
9:34
Speaker 1: concrete investigatory steps will bear new fruit at either the
9:38
Speaker 1: guilt phase or the penalty phase. As such, defendant's motions
9:43
Speaker 1: amount to a request for a perpetual continuance so that
9:47
Speaker 1: his counsel can go down every rabbit hole until defendant,
9:51
Speaker 1: rather than the court deems himself ready for trial. The
9:54
Speaker 1: law requires no such thing. See Mayhaffe, first page one
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Speaker 1: fifty one three dot D six seventy one six eighty five,
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Speaker 1: seven Circuit nineteen ninety eight, vacated in part by one
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Speaker 1: sixty two ft three d forty one, Seventh Circuit, nineteen
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Speaker 1: ninety nine. A reasonable investigation does not mandate a scorch
10:15
Speaker 1: the earth's strategy or requirement that would fail to consider
10:19
Speaker 1: the limited time and resources that defense lawyers have in
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Speaker 1: preparing for a sentencing hearing. The court should deny the
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Speaker 1: motion because defendants team has had the time to prepare
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Speaker 1: and has adequately addressed the issues he claims need more attention.
10:34
Speaker 1: A defendant's motion is untimely given the procedural posture of
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Speaker 1: the case. The scheduling order granted the party sample time
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Speaker 1: for trial preparation, and it also set several interim deadlines
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Speaker 1: along the way, including for penalty phase experts disclosures and
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Speaker 1: mitigation disclosures, which is the primary basis for defendants motion.
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Speaker 1: The state also understands that the court set the pre
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Speaker 1: trial conference more than two months before the trial in
11:02
Speaker 1: order to give parties sufficient time to prepare for trial
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Speaker 1: after discovery closed and pre trial disclosures in motion practice
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Speaker 1: were completed. If defendant was having trouble meeting deadlines, finding experts,
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Speaker 1: or pursuing red flags, he should have sought a discovery
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Speaker 1: extension or a trial continuance long before now c. Marquez
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Speaker 1: seven seventy two f. Dot two D five point fifty six,
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Speaker 1: stating that the court should consider a defendant's diligence and
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Speaker 1: the inconvenience to the court and prosecution when reviewing a
11:34
Speaker 1: motion to continue, he did not do so. Instead, defendant
11:38
Speaker 1: retained over a dozen guilt phase experts, six penalty phase experts,
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Speaker 1: a mitigation specialist, and has identified over twenty one hundred
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Speaker 1: pages of purported mitigation material, and leading up to the
11:51
Speaker 1: pre trial conference, he exchanged witness lists and exhibit lists
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Speaker 1: with the state without stating that he would be moving
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Speaker 1: for a continuance. While the defendant relies on the death
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Speaker 1: as different mantra and argues that extraordinary measures must be
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Speaker 1: taken to protect his rights. He cites no authority for
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Speaker 1: the proposition that reasonable scheduling orders should not be enforced
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Speaker 1: in death penalty cases. Indeed, defendant recently argued that the
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Speaker 1: state improperly delayed in seeking an extension for time for
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Speaker 1: its rebuttal phase expert disclosures. Objection to state's motion for
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Speaker 1: examination of defendant pursuant to Idaho Codes Section eighteen two
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Speaker 1: seven and for an extension of time to complete rebuttal
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Speaker 1: penalty phase expert disclosures, the state is not provided the
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Speaker 1: necessary proof of good cause to warrant and extension of
12:42
Speaker 1: such a significant deadline so close to the trial date,
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Speaker 1: the same principle should apply to him. Defendant's motion is
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Speaker 1: untimely and weighs in favor of its rejection. All right,
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Speaker 1: we're going to wrap up right here, and in the
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Speaker 1: next episode we're going to pick up with b. Defendant's
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Speaker 1: purported need to conduct additional investigation is unsupported and does
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Speaker 1: not establish prejudice warranting a continuance. All of the information
13:07
Speaker 1: that goes with this episode can be found in the
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Speaker 1: description box. What's up everyone, and welcome back to the program.
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Speaker 1: In this episode, we're going to pick up where we
13:15
Speaker 1: left off with the State of Idaho in their response
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Speaker 1: to Brian Coolberger's motion for a continuance. B Defendant's purported
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Speaker 1: need to conduct additional investigation is unsupported and does not
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Speaker 1: establish prejudice warranting a continuance. Defendant bases his motion on
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Speaker 1: a claim of insufficient resources and the need to conduct
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Speaker 1: more investigations prior to trial, but he has not yet
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Speaker 1: demonstrated that he is being deprived of anything that he seeks. Thus,
13:44
Speaker 1: defendant claims that the current state of the defense team's
13:48
Speaker 1: preparations are a matter of speculation and not the type
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Speaker 1: of demonstrable reality needed to support a continuance. Based on
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Speaker 1: the defendants constitutional rights us versus first Hand d. Three
14:01
Speaker 1: fifty one, nineteen fifty six one, Defendants' legal resources have
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Speaker 1: been more than adequate. Defendant has three trial attorneys, including
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Speaker 1: lead attorney who has represented them from day one, two investigators,
14:15
Speaker 1: and the assistance of at least one additional public defense attorney.
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Speaker 1: He also engaged in outside mitigation specialists to assist in
14:23
Speaker 1: obtaining materials for use during the penalty phase. This record
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Speaker 1: reflects that the defense team has been working hard for
14:30
Speaker 1: defendant and, as explained below, has met the professional standards
14:34
Speaker 1: for the defense of a death penalty case. Yet defendant
14:38
Speaker 1: still claims that the court is cutting off his review
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Speaker 1: of discovery. This is unfounded. Defendant's attorneys have had sufficient
14:46
Speaker 1: time to review discovery and have not established any discovery
14:49
Speaker 1: violations by the state. They have been able to identify
14:54
Speaker 1: over one thousand exhibits and nearly two hundred witnesses for trial. Indeed,
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Speaker 1: the court also recently admonished defendant's counsel to seek additional
15:02
Speaker 1: resources from the Resource Judge if they needed more assistance
15:06
Speaker 1: to review discovery and prepare for trial. Defendant has not
15:10
Speaker 1: claimed that he sought more resources and was denied neither
15:14
Speaker 1: the size of his legal team nor the need to
15:17
Speaker 1: continue to review discovery from a valid basis for a
15:20
Speaker 1: continuance two defendants expert witness resources have been more than adequate.
15:26
Speaker 1: Defendant has been able to retain a large retinue of experts,
15:30
Speaker 1: including six experts focused on mitigation for the penalty phase.
15:34
Speaker 1: Five of these experts are mental health professionals, both a
15:37
Speaker 1: psychologist and a forensic psychiatrist have examined defendant on multiple occasions,
15:43
Speaker 1: reviewed his social and medical history, and diagnosed him with autism, OCD,
15:48
Speaker 1: and ADHD. Collectively, these experts took a deep dive into
15:52
Speaker 1: defendant's entire life, including by interviewing his family, teachers, co workers,
15:57
Speaker 1: and even a psychologist who evaluated defender as a child.
16:01
Speaker 1: The extensive investigations by these experts contradict defendant's claim that
16:06
Speaker 1: he needs more time to complete a social history investigation.
16:10
Speaker 1: In the cases that he cites, counsel was ineffective for
16:13
Speaker 1: failing to explore mental health conditions or for failing to
16:17
Speaker 1: provide mental health experts with sufficient background information. In contrast, here,
16:23
Speaker 1: defendants mental health experts have that access to a significant
16:26
Speaker 1: amount of people and materials and have created folsome histories
16:30
Speaker 1: through their own investigations. Defendants claim that his team needs
16:35
Speaker 1: to follow up on red flags is also unsubstantiated. In
16:39
Speaker 1: their reports, neither his psychologists nor his forensic psychiatrists indicated
16:44
Speaker 1: they could not render opinions because of unexplored areas. In fact,
16:49
Speaker 1: the forensic psychiatrists concluded that defendant showed no signs of
16:53
Speaker 1: other serious psychotic disorders and at a recent hearing, defendant
16:57
Speaker 1: represented that he would not seek to introduce evidence of
17:01
Speaker 1: this unexplored topic. Telling lead Defendant did not seek an
17:05
Speaker 1: extension of the penalty phase expert disclosure deadline. Defendants claim
17:09
Speaker 1: that more expert testimony is needed is speculative and does
17:13
Speaker 1: not identify what new information would be uncovered by further investigation.
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Speaker 1: This is fatal to Defendant's motion ce Ero twenty fourteen
17:22
Speaker 1: at two, affirming denial of a continuance where it would
17:26
Speaker 1: not have served a useful purpose because counsels sought information
17:29
Speaker 1: based on a mere speculation. Three. Defendant's council investigation into
17:35
Speaker 1: his life story has been more than adequate and his
17:38
Speaker 1: reliance on the ABA guidelines is misplaced. There's no authority
17:42
Speaker 1: to support defendant's desire for more time to conduct a
17:45
Speaker 1: scorch of the Earth life history investigation see Mahafi one
17:49
Speaker 1: fifty one ft three d at six eighty five. Courts
17:53
Speaker 1: recognize that all cases, including death penalty cases, are constrained
17:57
Speaker 1: by limited time and resources c Ero at ten eighty
18:02
Speaker 1: two and dire verse Calderon at ninth Circuit nineteen ninety seven,
18:07
Speaker 1: vacated on other grounds one fifty one f dot three
18:10
Speaker 1: D nine seventy ninth Circuit, nineteen ninety eight. We have
18:14
Speaker 1: never held that council has a duty to uncover every
18:17
Speaker 1: aspect of a defendant's past and to present all evidence
18:21
Speaker 1: that might bolster a defendants mitigation case. Rather, trial council's
18:26
Speaker 1: resources are limited to the strategic decision to emphasize certain
18:30
Speaker 1: aspects of a defendant's background at the expense of investigating
18:33
Speaker 1: others in both reasonable and wholly acceptable. Face. With this authority,
18:39
Speaker 1: defendant turns to straw man arguments and non binding guidelines
18:43
Speaker 1: to conjure up alleged prejudice. First, he cites cases where
18:47
Speaker 1: death penalty sentences were overturned because lower courts failed to
18:50
Speaker 1: consider mitigation evidence. But there is no danger of that here.
18:54
Speaker 1: Starting the trial instead of allowing defendant to pursue a
18:58
Speaker 1: mitigation investigation with no in sight does not amount to
19:02
Speaker 1: denying him the right to present a constitutionally adequate mitigation case.
19:08
Speaker 1: In any event, the current issue before the court is
19:10
Speaker 1: a request for a continuance, not the admissibility of mitigation
19:14
Speaker 1: evidence or the performance of the council. The court's decision
19:18
Speaker 1: remains a matter of discretion. See Michael's versus Chappelle, California,
19:24
Speaker 1: December twenty fourteen, affirming Trial court in a petition for
19:28
Speaker 1: habeas corpus because the defendant failed to demonstrate that the
19:31
Speaker 1: state court's rejection of a continuance was objectively reasonable. Home
19:36
Speaker 1: versus Kirka Garden, October ninth, twenty nineteen, Montana, finding that
19:42
Speaker 1: the trial court's denial of a last minute continuance did
19:45
Speaker 1: not violate defendant's rights. The court will be well within
19:49
Speaker 1: its discretion to bring this case to trial after two
19:52
Speaker 1: years and an already robust defense investigation. See Dixon vers. Ryan,
19:57
Speaker 1: nine thirty two ft three d seven eighty nine, Ninth Circuit,
20:01
Speaker 1: twenty nineteen, affirming the decision to deny emotion for a continuance,
20:06
Speaker 1: where the trial court cited the overall length of the case,
20:09
Speaker 1: the interests of the victims, and the mitigation investigation done
20:12
Speaker 1: by prior council. Second defendant relies on the ABA guidelines
20:17
Speaker 1: for the appointment and performance of defense counsel and death
20:20
Speaker 1: penalty proceedings to list all the things that his council
20:23
Speaker 1: needs to accomplish. This exercises meritless as a matter of
20:28
Speaker 1: law and the fact as to the law the Idaho
20:31
Speaker 1: Supreme Court has declined the invitation to adopt these guidelines
20:36
Speaker 1: see Porter, nineteen ninety seven. See also Halver State twenty eleven,
20:41
Speaker 1: repudiating the guidelines in the context of post conviction discovery
20:45
Speaker 1: and rejecting a claim that the heightened procedural safeguards should
20:49
Speaker 1: be employed in discovery in capital cases Ashleman verse State, Idaho,
20:56
Speaker 1: nineteen ninety nine, recognizing that failing to comply with the
21:00
Speaker 1: ABA guidelines is not in effective assistance of counsel per se.
21:04
Speaker 1: For its part, the US Supreme Court has ruled that
21:07
Speaker 1: the ABA guidelines are just that only guides Strickland versus Washington,
21:11
Speaker 1: twenty eleven. Beyond the general requirement of reasonableness, specific guidelines
21:17
Speaker 1: are not appropriate as a factual matter. Even if the
21:21
Speaker 1: Court looks to the ABA guidelines, the record reveals that
21:25
Speaker 1: defendant's council has complied with them Table one. In Table two,
21:29
Speaker 1: attached to the brief, cross reference the list of tasks
21:32
Speaker 1: defendants set forth from the ABA Guidelines with the actual
21:36
Speaker 1: record in the case. The results show that the appellate
21:39
Speaker 1: Court will be exceedingly hard pressed to rely on the
21:43
Speaker 1: ABA guidelines or any other basis to find that the
21:46
Speaker 1: defendant has suffered prejudice if trial proceeds as scheduled. It
21:51
Speaker 1: also shows that extending defendants mitigation investigation will not serve
21:55
Speaker 1: a useful purpose because at this point any new information
21:58
Speaker 1: Council hopes to find is based on mere speculation. Row
22:02
Speaker 1: twenty fourteen WL two four four three three six at
22:06
Speaker 1: two four. Defendant's xparte filing should not cause the court
22:12
Speaker 1: to grant his motion. Defendant file X parte an additional
22:16
Speaker 1: document that purports to outline what new evidence he might
22:19
Speaker 1: seek and what strategies or tactics he might use to
22:22
Speaker 1: obtain the evidence. Initially, the Court expressed skepticism that the
22:27
Speaker 1: defendant's motion was properly filed X PARTAI and ordered the
22:30
Speaker 1: defendant to provide a redacted copy of this filing to
22:34
Speaker 1: the State for it to address in this response. Defendant
22:37
Speaker 1: then objected to that order, and the state now understands
22:40
Speaker 1: that the Court has decided not to require disclosure of
22:44
Speaker 1: the xparte filing. While the State does not concede that
22:47
Speaker 1: defendant has valid grounds for his objection, it will not
22:50
Speaker 1: address the objection given the court's decision. The State does, however,
22:56
Speaker 1: require and request that if the Court has identified a
22:59
Speaker 1: base in the expartei filing to grant defendant's motion, that
23:03
Speaker 1: the Court allow the state to respond to that particular
23:06
Speaker 1: issue regardless of the xpartei filing. The Court deny defendants
23:11
Speaker 1: motion because of the resources he has at his disposal
23:15
Speaker 1: and the significant work already done to support his mitigation.
23:19
Speaker 1: Case two. The Idaho Constitution Victim Rights Amendment is another
23:23
Speaker 1: basis to deny defendant's motion. While Defendant's reasons for a
23:28
Speaker 1: continuance are unpersuasive, there is another reason to deny his motion.
23:33
Speaker 1: The victims in this case, including the immediate family members
23:36
Speaker 1: of the homicide victims, have a right under the Idaho
23:39
Speaker 1: Constitution and Idaho Code to the timely disposition of this case.
23:44
Speaker 1: Idaho Constitution Article one, Section twenty two I see Section
23:49
Speaker 1: nineteen fifty three oh six one c. Three. Given that
23:53
Speaker 1: it has been nearly two and a half years since
23:56
Speaker 1: defendant's arrest, the victim's rights and their desire for justice
23:59
Speaker 1: will in favor proceeding to trial is scheduled. While the
24:04
Speaker 1: term timely disposition is not defined, it must mean that
24:07
Speaker 1: at some point a trial court can decide that the
24:10
Speaker 1: administration of justice out ways a defendant's desire to continue
24:14
Speaker 1: preparing his defense. That is one of the purposes of
24:18
Speaker 1: the Idaho Victim Rights Amendment and is consistent with Idaho
24:21
Speaker 1: cases requiring a defendant to show actual prejudice in order
24:26
Speaker 1: to successfully challenge a decision to deny a motion to continue.
24:31
Speaker 1: In his motion, defendant sites many cases where a council
24:34
Speaker 1: fail to adequately prepare for trial or sentencing, but he
24:38
Speaker 1: cites no case where a court found that over two
24:40
Speaker 1: years was an inadequate amount of time to prepare, nor
24:44
Speaker 1: could he. He concedes that the sixth Amendment only means
24:48
Speaker 1: that a defendant is entitled to a reasonable period of
24:51
Speaker 1: time before a trial during which council might prepare a defense.
24:55
Speaker 1: While he appears to want unlimited time, defendant has already
24:59
Speaker 1: had none reasonable amount of time to prepare, as demonstrated
25:02
Speaker 1: by the substantial quantity of evidence his attorneys have amassed.
25:06
Speaker 1: Against this backdrop, the court can properly rely on the
25:10
Speaker 1: victim's constitutional rights as a basis to deny his motion. Three.
25:15
Speaker 1: Despite intense publicity, the court should exercise its discretion to
25:19
Speaker 1: deny defendant's motion to proceed to trial using its carefully
25:23
Speaker 1: planned jury selection process. There is no doubt that the
25:27
Speaker 1: publicity surrounding this case, including but not limited to, a
25:30
Speaker 1: recent Dateline TV show containing non public evidence, poses challenges
25:35
Speaker 1: for the Court and both parties. The state reaffirms its
25:39
Speaker 1: commitment to comply with the Court's non dissemination order, to
25:43
Speaker 1: everything in its power to prevent leaks, and to assist
25:46
Speaker 1: in determining which person or persons provided non public information
25:50
Speaker 1: to Dateline. However, defendant's reliance on the Dateline episode to
25:54
Speaker 1: support his motion is misplaced for several reasons. First, the
25:58
Speaker 1: question of whether a defendant can receive a fair trial
26:02
Speaker 1: is not answered by the amount of the nature of
26:05
Speaker 1: pre trial publicity. Rather, it depends on whether affair an
26:08
Speaker 1: impartial jury can be seated, As the U. S. Supreme
26:12
Speaker 1: Court is said to hold that the mere existence of
26:15
Speaker 1: any preconceived notion as to the guilt or innocence of
26:18
Speaker 1: an accused without more is sufficient to rebut the presumption
26:22
Speaker 1: of a prospective jurors impartiality would be to establish an
26:26
Speaker 1: impossible standard. It is sufficient if the juror can lay
26:30
Speaker 1: aside his impression or opinion and render a verdict based
26:33
Speaker 1: on the evidence presented in court. Accordingly, the Idaho Supreme
26:38
Speaker 1: Court has long recognized that trial courts can successfully select
26:42
Speaker 1: an impartial jury despite widespread publicity State Verse Windsor Idaho
26:46
Speaker 1: eighty five. In State verse Federally Idaho eighty five, a
26:51
Speaker 1: death penalty case, the Idaho Supreme Court disagreed with the
26:55
Speaker 1: defendant's claim that extensive publicity prior to trial deprived them
26:59
Speaker 1: of the oppera ortunity to be tried before an impartial
27:02
Speaker 1: jury id At twelve oh five. Because each juror was
27:06
Speaker 1: extensively questioned to determine the degree of their exposure to
27:10
Speaker 1: pre trial publicity, defendants' rights were preserved when the defendant
27:14
Speaker 1: later sought federal habeas corpus relief. The Ninth Circuit examined
27:18
Speaker 1: the Vardeer process and found no prejudice, even though on
27:22
Speaker 1: the day of jury selection the case was covered on
27:25
Speaker 1: the front page of the local newspaper as well as
27:28
Speaker 1: on TV and radio. Here, the court carefully crafted jury
27:32
Speaker 1: selection process has every chance to produce an impartial jury.
27:36
Speaker 1: Because of the sensitive nature of the court's Vardeer procedures.
27:39
Speaker 1: The state will not address the mechanics of jury selection
27:43
Speaker 1: in this public filing, but suffice it to say, if
27:46
Speaker 1: an individual has been so impacted by the dateline episode
27:50
Speaker 1: or any other publicity that they cannot be impartial, they
27:53
Speaker 1: will not be seated as a jur Indeed, this case
27:56
Speaker 1: is not the Ata County Judiciary's first experience with highly
28:00
Speaker 1: publicized trials in recent years, like the Court and Valodabell trial,
28:04
Speaker 1: the court is well equipped to select a jury to
28:07
Speaker 1: handle ongoing media coverage and conduct a fair trial, and
28:10
Speaker 1: the Ada County Courthouse second. The Idaho Supreme Court is
28:14
Speaker 1: rejected defendant's theory that a continuance is necessary to allow
28:18
Speaker 1: media coverage to dissipate. See Federally seven ten at twelve
28:23
Speaker 1: oh six. Federally argues that the trial judge should have
28:27
Speaker 1: granted a continuance to allow the harmful press coverage to dissipate. However,
28:31
Speaker 1: is stated above, there is every indication that an impartial
28:35
Speaker 1: jury was unpaneled and that Federally received a fair trial.
28:39
Speaker 1: As the Court correctly noted at the pre trial conference,
28:42
Speaker 1: Delaying this trial will only allow more opportunities for pre
28:45
Speaker 1: trial publicity. There's no reason to think the media coverage
28:49
Speaker 1: in the case will dissipate, so proceeding to trial as
28:52
Speaker 1: scheduled may actually avoid any negative consequences from future publicity defendants.
28:59
Speaker 1: Dissipation cases occurred in the nineteen sixties and involved communities
29:03
Speaker 1: where it was presumed or demonstrated that residents had already
29:08
Speaker 1: formed opinions about the case based on local media reports. Here,
29:12
Speaker 1: venue has already been moved, and the court will use
29:16
Speaker 1: a much larger pool of potential jurors than in defendant
29:19
Speaker 1: sided cases. This case is also proceeding in a highly
29:23
Speaker 1: fractured media landscape that bears little resemblance to what prevailed
29:26
Speaker 1: in the sixties. What happened in the defendant sided cases
29:30
Speaker 1: has no bearing on whether the court can select sufficient
29:33
Speaker 1: number of impartial jurors in this case. The court should
29:36
Speaker 1: deny defendant's motion because he has not shown that the
29:39
Speaker 1: publicity surrounding this case will prevent a fair trial conclusion.
29:44
Speaker 1: For the foregoing reasons, the Court should deny the defendant's
29:47
Speaker 1: motion to continue. This document was signed on June fifth,
29:51
Speaker 1: and it was signed by William Thompson. All of the
29:54
Speaker 1: information that goes with this episode can be found in
29:57
Speaker 1: the description box. What's up Everyone, and then welcome back
30:00
Speaker 1: to the program. Recently we saw that the State of
30:04
Speaker 1: Idaho responded to Brian Colberger's motion to continue, and now
30:09
Speaker 1: Brian Colberger has responded to that response. So let's dive
30:15
Speaker 1: in case number CR zero one Dash twenty four DASH
30:20
Speaker 1: three one sixty sixty five State of Idaho Plaintiff first,
30:24
Speaker 1: Brian C. Coburger, the defendant. Defendant's reply to the State's
30:29
Speaker 1: opposition to Defendant's motion to continue comes now Brian C.
30:34
Speaker 1: Coburger buying through his attorneys of record, and hereby submits
30:37
Speaker 1: this reply to the State's opposition to Defendant's motion to continue,
30:42
Speaker 1: filed with the Court on June fifth, twenty twenty five.
30:46
Speaker 1: The State's objection to mister Colberger's motion invites reversible error.
30:50
Speaker 1: Prosecutors have an ethical and legal obligation to seek justice
30:54
Speaker 1: over conviction. See Burger versus US nineteen thirty five Idolho
31:00
Speaker 1: Rules of Professional Conduct, Rule three dot eight Special duties
31:04
Speaker 1: of a prosecutor. When defense counsel requires a continuance to
31:08
Speaker 1: complete the constitutionally required mitigation investigation, the state has no
31:13
Speaker 1: legitimate interest in objecting. For any conviction and or death
31:17
Speaker 1: sentence obtained under such circumstances would rest on a constitutionally
31:22
Speaker 1: defective foundation. As such, courts reviewing death sentences recognize that
31:27
Speaker 1: when an attorney error amounts to constitutionally and effective assistance
31:31
Speaker 1: of council, that error is imputed to the state. Coleman
31:35
Speaker 1: versus Thompson, nineteen ninety one. For when a state obtains
31:39
Speaker 1: a conviction against the defendant who was denied the effective
31:43
Speaker 1: assistance of council, it is a state that unconstitutionally deprives
31:47
Speaker 1: the defendant of his liberty Cohler vers. Sullivan, nineteen eighty
31:53
Speaker 1: deck verse Steel two forty nine, twenty seventeen, reversed on
31:57
Speaker 1: procedural grounds by dec Verse Jennings, nine seventy eight, eight
32:01
Speaker 1: Circuit twenty twenty one. Compliance with the Court scheduling order
32:06
Speaker 1: does not fulfill mister Colberger's right to effective assistance of council.
32:10
Speaker 1: In a capital case, the state suggests that counsel's prior
32:14
Speaker 1: compliance with the court scheduling order somehow weighs against the
32:18
Speaker 1: president request for a continuance, but defense council's adherence to
32:22
Speaker 1: deadlines demonstrates diligence, not finality. Compliance was a good faith
32:27
Speaker 1: effort to meet the court's expectations, not a concession that
32:31
Speaker 1: the defense investigation is complete, the defense has now identified
32:35
Speaker 1: information and developments that make clear additional time is necessary
32:39
Speaker 1: to meet the minimum standards of effective assistance of council
32:43
Speaker 1: under Strickland versus Washington four sixty six US nineteen eighty four,
32:48
Speaker 1: and to fulfill the capital defense duties articulated in Wiggins
32:52
Speaker 1: verus Smith two thousand and three and other Supreme Court cases.
32:57
Speaker 1: The fact that the prior deadlines were met to not
33:00
Speaker 1: somehow negate the need for a continuance where the timeline
33:03
Speaker 1: is insufficient to complete the investigation and presentation of a
33:08
Speaker 1: constitutionally adequate penalty phased defense. Defense counsel has provided a
33:13
Speaker 1: detailed showing of good cause and necessity, including specific investigative
33:18
Speaker 1: avenues that case law explicitly establishes as constitutionally required in
33:23
Speaker 1: a capital case, through the X PARTA pleading and an
33:27
Speaker 1: accompanying affidavit from the mitigation specialist. The purpose of the
33:31
Speaker 1: X PARTAI pleading was to provide the court with this
33:34
Speaker 1: critical context without revealing privilege where product and trial strategy
33:39
Speaker 1: to the prosecution. The Court is therefore apprized of the
33:43
Speaker 1: scope and necessity of the additional investigation and the record
33:47
Speaker 1: does not support the state's assertion that all relevant ground
33:50
Speaker 1: has already been plowed. Two. Mister Coberger's case has been
33:55
Speaker 1: pending for less than two and one half years. That's
33:58
Speaker 1: a short duration can be heard to other capital cases.
34:03
Speaker 1: The state's suggestion that the defendant is seeking a perpetual
34:06
Speaker 1: continuance mischaracterizes the request. The defense is not seeking an
34:12
Speaker 1: indefinite delay. It's seeking a reasonable and necessary adjustment of
34:17
Speaker 1: the trial schedule to allow constitutionally required mitigation investigation to
34:22
Speaker 1: be completed. The absence of a proposed new trial date
34:25
Speaker 1: simply reflects that the next appropriate step would be for
34:29
Speaker 1: the court to vacate the current trial date and enter
34:32
Speaker 1: a revised scheduling order based on input from all parties,
34:36
Speaker 1: as is customary. It is both common and appropriate in
34:41
Speaker 1: capital cases for trial schedules to be revised as new
34:44
Speaker 1: facts emerge or as the defense becomes aware that essential
34:48
Speaker 1: task cannot be completed in the time originally allotted. The
34:51
Speaker 1: defense identified specific areas of investigation that are outstanding and
34:57
Speaker 1: has submitted those to the Court Expartei for review. The
35:00
Speaker 1: precise amount of time needed will depend, in part on
35:04
Speaker 1: the results of those ongoing efforts. The state's assertion that
35:07
Speaker 1: over two years should be presumed sufficient time ignores the
35:11
Speaker 1: law and practical realities of capital litigation and the high
35:14
Speaker 1: profile nature of this case. The sixth Amendment right to
35:19
Speaker 1: effective assistance of counsel does not impose a rigid calendar requirement.
35:23
Speaker 1: It guarantees a meaningful opportunity for counsel to prepare and
35:27
Speaker 1: investigate under the facts and complexities of the individual case.
35:32
Speaker 1: Denying this continuance based solely on the passage of time
35:35
Speaker 1: without considering the specific barriers, scope of investigation, and recent developments,
35:41
Speaker 1: would be an abuse of discretion. However, even engaging with
35:45
Speaker 1: the state's flawed argument, two years and three months between
35:48
Speaker 1: indictment and trial is less time than many run of
35:51
Speaker 1: the mill capital cases that are not high profile. The
35:55
Speaker 1: Federal Death Penalty Resource Council tracks federal capital cases and
35:59
Speaker 1: public resource in twenty twenty one, tracking the amount of
36:03
Speaker 1: time it took for cases brought to trial between twenty
36:06
Speaker 1: ten and twenty twenty. Prior to the pandemic which flowed
36:10
Speaker 1: everything down, the average time between indictment and the beginning
36:14
Speaker 1: of trial was one thousand, two hundred and ninety nine days,
36:17
Speaker 1: or three and a half years. See declaration of ben
36:20
Speaker 1: Cohen regarding time period between indictment and trial in federal
36:25
Speaker 1: death penalty cases between twenty ten and twenty twenty attached
36:29
Speaker 1: as Exhibit A. And recent high profile capital cases have
36:34
Speaker 1: taken longer to get to trial. For example, defendant Nicholas
36:37
Speaker 1: Cruz in Florida was pre trial for more than four years.
36:41
Speaker 1: This is true even though he fled guilty, leaving the
36:44
Speaker 1: penalty decision of life without parole or death penalty as
36:48
Speaker 1: the sole issue to be decided three This capital case
36:52
Speaker 1: is extraordinary, both in complexity and media attention. Mister Kolberger's
36:56
Speaker 1: case is not an ordinary capital case. The defense has
36:59
Speaker 1: had to navigate extraordinary barriers, including reluctant or traumatized lay witnesses,
37:05
Speaker 1: difficulty retaining qualified experts because it's a highly publicized and
37:09
Speaker 1: controversial case, ongoing prejudicial media coverage, including violations of cord
37:15
Speaker 1: orders that have required legal and strategic attention, and logistical
37:20
Speaker 1: delays in a complex mitigation investigation across multiple institutions and jurisdictions.
37:27
Speaker 1: Even though three and a half years represents an average
37:29
Speaker 1: pre trial timeline in capital litigation, that average does not
37:33
Speaker 1: account for the added complexity, resistance, and logistical challenges inherent
37:38
Speaker 1: in this case. At the current trial setting, mister Coberger's
37:42
Speaker 1: case will be less than two years and three months
37:44
Speaker 1: from indictment. Rushing this case to trial on the schedule
37:48
Speaker 1: that is both shorter than average capital cases and without
37:51
Speaker 1: flexibility to account for the added complexity, will compromise the
37:56
Speaker 1: fundamental rights guaranteed to mister Coburger under the sixth, eighth
37:59
Speaker 1: and fourteenth Amendment and make any resulting conviction and or
38:03
Speaker 1: death sentence vulnerable to reversal. Four. The recent Dateline episode
38:09
Speaker 1: and media leaks are uniquely prejudicial and distinct from ordinary
38:13
Speaker 1: media coverage. The state's argument that the Dateline episode does
38:16
Speaker 1: not require a continuance, and that, in fact, proceeding to
38:20
Speaker 1: trial as scheduled may actually avoid any negative consequences from
38:24
Speaker 1: future publicity completely misses the point. The defense is not
38:29
Speaker 1: asking for a continuance based on ordinary publicity that attends
38:33
Speaker 1: high profile criminal proceedings, such as coverage of court dates
38:36
Speaker 1: and public filings. This is something wholly different. A highly
38:41
Speaker 1: dramatized TV special, complete with ominous music and narrations, first
38:46
Speaker 1: person testimonials, faue experts, and non public information that was
38:51
Speaker 1: leaked in violation of the court's non dissemination order. It
38:55
Speaker 1: was a choreographed narrative broadcast to millions of viewers and
38:58
Speaker 1: advertised to millions more. It aired nationally and was promoted
39:02
Speaker 1: heavily across commercial breaks, streaming platforms, and social media, maximizing
39:08
Speaker 1: its visibility and impact. It was designed to provoke strong
39:12
Speaker 1: emotional reaction, which is exactly the influence that tains Jerry
39:16
Speaker 1: Pools and risk depriving mister Cooberger of a fair trial
39:20
Speaker 1: were still. A book that claims to contain the most
39:23
Speaker 1: comprehensive narrative of the investigation and evidence to date is
39:27
Speaker 1: set to be published on July fourteenth, twenty twenty five.
39:31
Speaker 1: It promises information based on interviews with local law enforcement.
39:36
Speaker 1: Its release will almost certainly trigger another wave of media
39:40
Speaker 1: coverage just two weeks before Jerry's selection is set to begin,
39:43
Speaker 1: and if the publisher's claims are accurate, that coverage will
39:47
Speaker 1: likely include non public information presented not under oath or
39:51
Speaker 1: subject across examination, but packaged in a narrative designed to
39:56
Speaker 1: provoke public interest and sell books. If the book contains
40:00
Speaker 1: no new leaks of further investigation into the source of
40:03
Speaker 1: those disclosures will be necessary. The book is not the
40:06
Speaker 1: end of what is to come as the trial begins
40:10
Speaker 1: as currently scheduled. Amazon Prime Video is releasing a docu
40:14
Speaker 1: series on July eleventh, twenty twenty five, called One Night
40:17
Speaker 1: Night iaho the College Murders. It's a four part series.
40:21
Speaker 1: It promises to be told in a captivating, tense and
40:24
Speaker 1: emotionally wrenching detail by people who are likely to be
40:28
Speaker 1: witnesses in trial. The families of Ethan Chapin and Madison
40:32
Speaker 1: Mogan are extensively interviewed for the series, according to press
40:35
Speaker 1: materials in the trailer. Further, James Patterson, author of the
40:40
Speaker 1: aforementioned book, is noted as one of the directors and
40:43
Speaker 1: producers of the docuseries. These publications, dispersed at the time
40:48
Speaker 1: the trial begins, will capture untold attention and will be
40:52
Speaker 1: media fodder, especially as witnesses in the Capitol trial take
40:56
Speaker 1: the stand. Thus, the appropriate remedy is to investigate the
40:59
Speaker 1: sol of the violations and impose accountability, not to force
41:04
Speaker 1: this case to trial in the shadow of tainted public disclosure.
41:08
Speaker 1: Time will both allow this court to reassert control over
41:12
Speaker 1: the fairness of the proceedings by imposing accountability, which will
41:15
Speaker 1: communicate the seriousness of the violation and the importance of
41:19
Speaker 1: a fair process, and will allow the effects of this
41:22
Speaker 1: particularized and inflammatory coverage to subside. Because this is not
41:27
Speaker 1: an objection to the ordinary media coverage of the case,
41:30
Speaker 1: the prosecution's assertion that proceeding now will avoid further prejudice
41:35
Speaker 1: only holds true if one accepts that leaks and violation
41:38
Speaker 1: of court orders will continue. That is not a valid
41:41
Speaker 1: presumption on which to base denial of a continuance. It
41:45
Speaker 1: is a reason for investigation and enforcement. It would be
41:49
Speaker 1: patently unfair for the state's case to be bolstered through
41:52
Speaker 1: the prejudicial coverage that resulted from state actors violating the
41:56
Speaker 1: court's non dissemination order, and then to use that unlawful
41:59
Speaker 1: common induct as justification for rushing to trial, both before
42:03
Speaker 1: the defense can learn where the leak's originated and before
42:07
Speaker 1: the defense is ready. Additionally, thorough investigation into the leaks
42:11
Speaker 1: must occur prior to any trial because it now constitutes
42:15
Speaker 1: an owned source of Brady material. Interviews with dateline producers
42:18
Speaker 1: by Idaho news outlets indicate that it was likely multiple
42:22
Speaker 1: sources who leaks sealed information to the media. If any
42:26
Speaker 1: of these unlawful leaks originated from witnesses the state intends
42:29
Speaker 1: to call, or from others involved in the investigation, that
42:32
Speaker 1: information is relevant to impeaching their credibility. If the leaks
42:37
Speaker 1: were ongoing and collective, it would tend to show a
42:39
Speaker 1: willingness of investigators to violate court orders, bias against the defendant,
42:44
Speaker 1: or even collusion which is not only relevant to credibility
42:48
Speaker 1: but may be exculpatory in nature. And if the investigation
42:52
Speaker 1: reveals the other state agents had information about the leaks
42:55
Speaker 1: but failed to disclose it, the omission itself would constitute
42:59
Speaker 1: a Brady violation, requiring consideration of remedies. Of course, the identity, motives,
43:04
Speaker 1: and actions of those who violated the court's order are
43:08
Speaker 1: a key to the jury's determination of the facts, because
43:10
Speaker 1: this case hinges on whether the police investigation was conducted
43:14
Speaker 1: in a reliable manner or whether it's zoomed in on
43:17
Speaker 1: defendant at expense of all other suspects. In short, the
43:20
Speaker 1: prejudice from the Dayline episode requires the continuance both because
43:24
Speaker 1: of the resulting prejudice that is separate and apart from
43:27
Speaker 1: ordinary media coverage and because trial cannot go forward without
43:32
Speaker 1: a thorough investigation into which person persons leak case information
43:37
Speaker 1: and numerous sealed photographs and videos to the media. All Right,
43:41
Speaker 1: we're going to wrap up right here, and in the
43:42
Speaker 1: next episode, we're going to pick up with five. The
43:46
Speaker 1: current jury selection process does not allow enough time to
43:49
Speaker 1: select affair and impartial jury under the circumstances. All of
43:53
Speaker 1: the information that goes with this episode can be found
43:56
Speaker 1: in the description box. What's up, everyone, and welcome to
44:00
Speaker 1: the program. In this episode, we're picking up where we
44:03
Speaker 1: left off with Brian Kolberger's response to the State's objection
44:08
Speaker 1: to his motion for a continuance five. The current jury
44:13
Speaker 1: selection process does not allow enough time to select affair
44:17
Speaker 1: and impartial jury under the circumstances. The State asserts that
44:21
Speaker 1: the Court's carefully crafted jury selection process has every chance
44:25
Speaker 1: to produce an impartial jury. To the contrary, the Court
44:29
Speaker 1: has only scheduled two weeks for vardar, which is wholly
44:33
Speaker 1: insufficient to conduct the necessary individual vardeer on the vast
44:38
Speaker 1: media coverage as well as death penalty views. Given the
44:42
Speaker 1: popularity of Dateline and the intense public interest in the case,
44:45
Speaker 1: It's not speculative to assume that a significant portion of
44:49
Speaker 1: the jury pool has been exposed to the recent show,
44:52
Speaker 1: either directly or through previews, headlines, or word of mouth.
44:57
Speaker 1: Any discussion of the extremely prejudicial narrative outside of the
45:01
Speaker 1: individual vardeer is likely to tank the entire group. It
45:06
Speaker 1: is not the defense position that no fair jury can
45:08
Speaker 1: ever be impaneled in this case, only that under the
45:11
Speaker 1: current schedule, and in light of this development, the safeguards
45:15
Speaker 1: in place are not sufficient to ensure that process. Relying
45:19
Speaker 1: on Vordere alone, particularly in such a compressed format, is
45:23
Speaker 1: not adequate to protect mister Colberger's right to an impartial
45:26
Speaker 1: jury under the six and fourteenth Amendments, mister Colberger must
45:31
Speaker 1: also be able to conduct expansive warder and not be
45:35
Speaker 1: limited to short time frames and large panels. Constitutionally appropriate
45:40
Speaker 1: vardeer in a capital case takes time. Mister Colberger must
45:44
Speaker 1: have the necessary time to determine a potential juror's ability
45:48
Speaker 1: to sit on this highly publicized capital case. Six The
45:52
Speaker 1: ABA guidelines define the prevailing professional norms for effective assistance
45:57
Speaker 1: and are statutorily adopted in Idaho. The state argues that
46:01
Speaker 1: the court need not consider the ABA guidelines for the
46:04
Speaker 1: appointment and performance of defense council in death penalty cases
46:08
Speaker 1: and its cites as authority State verse Porter ninety eight,
46:12
Speaker 1: nineteen ninety seven and hallverse State, twenty eleven. First, the
46:16
Speaker 1: State mischaracterizes Hall verse State, which does not address the
46:20
Speaker 1: ABA guidelines at all. The only time the ABA guidelines
46:23
Speaker 1: are mentioned are in the parenthetical explaining State verse Porter.
46:28
Speaker 1: The Court's narrow holding in Hall, which is that Idaho
46:32
Speaker 1: law applies standard discovery practices in capital cases in post
46:36
Speaker 1: conviction posture, has no bearing on this case. The state's
46:40
Speaker 1: other cited case in State verse Porter, a nineteen ninety
46:43
Speaker 1: seven case in which Idaho Supreme Court declined to adopt
46:47
Speaker 1: the ABA guidelines. This case predates later US Supreme Court
46:51
Speaker 1: case law that specifically cites the ABA guidelines as evidence
46:55
Speaker 1: that courts rely on when determining whether trial councils performance
47:00
Speaker 1: met the constitutional threshold ce g. Wiggins vs. Smith, five
47:05
Speaker 1: thirty nine, two thousand and three. Thus, the fact that
47:08
Speaker 1: the guidelines were not adopted as binding law and Porter
47:11
Speaker 1: does not diminish their authority as a reflection of the
47:14
Speaker 1: professional consensus about prevailing professional norms. The holding is an
47:20
Speaker 1: unusual The guidelines have not been adopted as binding law
47:24
Speaker 1: by any state supreme court. However, the Idaho Public Defender Statutes,
47:29
Speaker 1: adopted in twenty twenty three, requires the state Public Defender
47:33
Speaker 1: to implement the ABA guidelines for defending attorneys delivering indigent
47:38
Speaker 1: defenses see IC nineteen h six zero zero five to four.
47:43
Speaker 1: The guidelines therefore have even more force in Idaho than elsewhere,
47:47
Speaker 1: though in any jurisdiction they are the most authoritative source
47:51
Speaker 1: of council's professional duties. In a capital case, post conviction,
47:55
Speaker 1: courts will use them as a highly persuasive authority when
47:58
Speaker 1: evaluating whether council conducted in adequate mitigation investigation, whether appropriate
48:04
Speaker 1: experts were consulted, and whether the defense team performed consistent
48:08
Speaker 1: with capital defense norms. The state also relies on a
48:12
Speaker 1: quote from Cullen first Pinhulster that omits critical context. Beyond
48:17
Speaker 1: the general requirements of reasonableness, specific guidelines are not appropriate.
48:22
Speaker 1: The next sentence states that this is because no particular
48:25
Speaker 1: set of detailed rules for council's conduct can satisfactorily take
48:30
Speaker 1: account of the variety of circumstances faced by defense council
48:34
Speaker 1: on the range of legitimate decisions five sixty three, twenty eleven.
48:40
Speaker 1: It goes on to reassert Council's duty to conduct reasonable
48:43
Speaker 1: investigations under the circumstances and the importance of looking to
48:47
Speaker 1: standards of professional practice at the time of trial. Id
48:51
Speaker 1: at one ninety five through ninety seven. That the ABA
48:54
Speaker 1: guidelines will not be read to constitute per se violations
48:58
Speaker 1: of the sixth Amendment does nothing to advance the state's argument.
49:03
Speaker 1: It does not undermine the relevance of the ABA guidelines
49:06
Speaker 1: in assessing prevailing professional norms and the reasonableness of Council's
49:11
Speaker 1: investigation and performance. The state does not and cannot cite
49:15
Speaker 1: any authority holding otherwise. Seven. A continuance is necessary to
49:20
Speaker 1: enforce mister Coberger's state and federal constitutional rights, and these
49:25
Speaker 1: cannot be overridden by the victim's Rights provision. The state
49:30
Speaker 1: asserts that the court should deny a continuance based on
49:33
Speaker 1: the victim's constitutional right to a timely disposition under Article one,
49:37
Speaker 1: section twenty two of the Idaho Constitution, but the provision
49:41
Speaker 1: does not and cannot override the defendants fundamental constitutional rights,
49:46
Speaker 1: including the right to a fair trial and the effective
49:49
Speaker 1: assistance of Council under the sixth and fourteenth Amendments to
49:52
Speaker 1: the US Constitution and Article I, Section thirteen of the
49:56
Speaker 1: Idaho Constitution. Mister Colberger's fundamental constitutional rights are not intentioned
50:02
Speaker 1: with the interests of victims. They are essential to ensuring
50:06
Speaker 1: that any outcome is fair and reliable. A constitutionally sound process,
50:10
Speaker 1: which includes adequate time to develop for cause challenges during
50:15
Speaker 1: vordeer in a capital case, is the only one that
50:18
Speaker 1: can serve the interests of all parties, including the victims
50:21
Speaker 1: and the public. Timeliness is also context dependent. The state
50:26
Speaker 1: voluntarily elected to seek the death penalty, knowing full well
50:30
Speaker 1: that doing so would trigger more demanding investigative and procedural obligations,
50:36
Speaker 1: including a comprehensive mitigation investigation and heightened constitutional standards. The
50:42
Speaker 1: decision necessarily guaranteed a longer, more complex pre trial process
50:47
Speaker 1: and to guarantee that the victims' families would have to
50:49
Speaker 1: wait longer for resolution. These are not unforeseen consequences. They
50:55
Speaker 1: are inherent in the state's pursuit of the most severe
50:57
Speaker 1: punishment available. If the state believes that the wait is
51:01
Speaker 1: too long or that the required procedural rigor is incompatible
51:05
Speaker 1: with a preferred timeline, it has the ability to withdraw
51:07
Speaker 1: its notice of intent to seek death. A non capital
51:11
Speaker 1: trial could occur this summer without inviting constitutional error, reversal
51:15
Speaker 1: and a significantly longer process. Overall, a continuance is necessary
51:20
Speaker 1: if the case remains capital. Notwithstanding the state's superficial chart,
51:25
Speaker 1: the chart merely lists broad topic areas and claims that
51:29
Speaker 1: the defense has some related records. That says nothing about
51:33
Speaker 1: whether the defense is completed in important specific investigation avenues
51:38
Speaker 1: or is in a position to present that information coherently
51:41
Speaker 1: and effectively at trial. The repetitive assertions that family members
51:47
Speaker 1: can testify about this topic at trial and any missing
51:50
Speaker 1: records have been available to defendant and can be obtained
51:53
Speaker 1: prior to the penalty phase likewise holds no weight. This
51:58
Speaker 1: ignores complexity of securing reliable testimony that has been investigated
52:03
Speaker 1: and corroborated, and the real world barriers to obtaining records.
52:08
Speaker 1: The state surface level examination of significant barriers and proposed
52:12
Speaker 1: method of mitigation presentation by defense is exactly what would
52:16
Speaker 1: result in reversal. As explained in the motion to continue,
52:21
Speaker 1: Constitutionally effective mitigation, investigation and presentation require a process that
52:26
Speaker 1: advances as new details emerge, kintextualization and trust building with
52:31
Speaker 1: sources none of which the State accounts. For conclusion, mister
52:36
Speaker 1: Kolberger's motion to continue is grounded in the need for
52:40
Speaker 1: a full investigation of all the mitigating factors reasonably present
52:44
Speaker 1: in his background, as well as his right to present
52:47
Speaker 1: such mitigating factors in his capital case so that the
52:50
Speaker 1: jury has the information necessary to make an individualize sentencing determination. Further,
52:56
Speaker 1: the motion is grounded in mister Colberger's right to affair
52:59
Speaker 1: and impartial trial. As such, his motion to continue must
53:04
Speaker 1: be granted to protect his rights under the state and
53:07
Speaker 1: the United States Constitution. This document was dated on June
53:11
Speaker 1: sixteenth of twenty twenty five, and it was signed by
53:14
Speaker 1: Ann Taylor. All of the information that goes with this
53:17
Speaker 1: episode can be found in the description box.