Latest / Beyond The Horizon / Mega Edition: The Media Battles For Their Right To Intervene In The Kohberger Case (9/2/26)

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Mega Edition: The Media Battles For Their Right To Intervene In The Kohberger Case (9/2/26) · Beyond The Horizon

• 0:01
  Speaker 1: What's up everyone and welcome back to the program. Recently,
• 0:06
  Speaker 1: we saw that over 30 media organizations banded together and
• 0:10
  Speaker 1: petitioned the court in Idaho over the vastness and the
• 0:14
  Speaker 1: broad scope of the gag order. Well, those organizations are
• 0:19
  Speaker 1: still waiting for a response from the court and it's
• 0:22
  Speaker 1: going to be very interesting to see how this all goes.
• 0:27
  Speaker 1: This gag order obviously is put in place with the
• 0:30
  Speaker 1: hopes of protecting the integrity of the case overall. But
• 0:34
  Speaker 1: at the same time, it is up to the court
• 0:36
  Speaker 1: to make sure that they're respecting the rights of the
• 0:39
  Speaker 1: people and the community as a whole. And to do that,
• 0:43
  Speaker 1: there has to be some kind of transparency here. And
• 0:47
  Speaker 1: that's what the media organizations have banded together to try
• 0:51
  Speaker 1: and get. So they've taken their case to the Supreme Court,
• 0:55
  Speaker 1: and now they're waiting on a reply from the Idaho
• 0:59
  Speaker 1: Supreme Court as to what's going to happen with this
• 1:03
  Speaker 1: gag order. Is it going to stand as is, or
• 1:06
  Speaker 1: is the judge going to have to go back and
• 1:09
  Speaker 1: trim the fat a little bit and make it a
• 1:12
  Speaker 1: little less restrictive? Today we have an article from the
• 1:16
  Speaker 1: Daily Evergreen, which is the student voice of Washington State University. Headline,
• 1:22
  Speaker 1: Court documents submitted challenging gag order in state of Idaho
• 1:26
  Speaker 1: versus Brian Koberger. The coalition is awaiting a response from
• 1:31
  Speaker 1: the Idaho Supreme Court. This article was authored by Puneet Basanti.
• 1:40
  Speaker 1: The attorney representing the coalition challenging the non-dissemination order in
• 1:45
  Speaker 1: the state of Idaho versus Brian Kohlberger said, submitted court
• 1:48
  Speaker 1: documents to the Idaho State Supreme Court on February 6th.
• 1:53
  Speaker 1: And now that it's been a little bit over a week,
• 1:55
  Speaker 1: I would expect the court to respond at the very
• 1:58
  Speaker 1: latest next week sometime. So my guess is we'll have
• 2:01
  Speaker 1: a little bit more movement and more of an idea
• 2:04
  Speaker 1: about the gag order come next week. Brian Koberger, a
• 2:09
  Speaker 1: former Washington State University criminology graduate student, was arrested on
• 2:14
  Speaker 1: December 30th for the stabbings of four University of Idaho students.
• 2:19
  Speaker 1: He is currently awaiting his preliminary hearing, which will start
• 2:23
  Speaker 1: on June 26th. The coalition, which is made up of
• 2:26
  Speaker 1: various local and national media organizations, announced their petition on
• 2:32
  Speaker 1: January 20th. They're requesting Latah County Magistrate Judge Megan Marshall
• 2:38
  Speaker 1: to narrow down the current non-dissemination, or gag order, which
• 2:42
  Speaker 1: prevents law enforcement, attorneys of the case, and others associated
• 2:46
  Speaker 1: with the case, from speaking on it to the public
• 2:49
  Speaker 1: and media. And for the media, obviously, they're trying to
• 2:53
  Speaker 1: drive traffic. That's their goal. That's what they're looking to do.
• 2:56
  Speaker 1: But for the public, this is how the court system
• 2:59
  Speaker 1: is supposed to work. We're supposed to have a look
• 3:02
  Speaker 1: inside of what's going on so we can follow along
• 3:05
  Speaker 1: and make sure everything's on the up and up. And
• 3:08
  Speaker 1: when things are done in secret like this, well, it
• 3:10
  Speaker 1: opens up a whole ass avenue for people to start
• 3:14
  Speaker 1: talking about things not going right, Things being done behind
• 3:17
  Speaker 1: the scenes that aren't being exposed to the light of day.
• 3:22
  Speaker 1: And when there's a lack of transparency, obviously, there's a
• 3:26
  Speaker 1: lack of trust. They're requesting Judge Marshall to narrow down
• 3:33
  Speaker 1: the amended gag order. This gag order... not only prevents
• 3:37
  Speaker 1: law enforcement, attorneys of the case, and others associated with
• 3:40
  Speaker 1: the case from speaking on it to the public and media,
• 3:44
  Speaker 1: but also attorneys who represent witnesses, victims, and victims' families
• 3:49
  Speaker 1: of the case. And that's where the big problem is
• 3:52
  Speaker 1: for me. I don't think that family members should be
• 3:55
  Speaker 1: denied the right to talk about whatever they want to
• 3:58
  Speaker 1: talk about. As long as they're not getting any information
• 4:01
  Speaker 1: from the investigators themselves or from the trial. then they
• 4:06
  Speaker 1: should be free to say whatever they want. As long
• 4:09
  Speaker 1: as nobody who is working on the case, as far
• 4:12
  Speaker 1: as the prosecution or the defense, has anything to say
• 4:15
  Speaker 1: to the media, then I think that should be enough
• 4:17
  Speaker 1: for the gag order. The whole amended portion of it
• 4:23
  Speaker 1: that became way too overbroad, that's the part that I
• 4:26
  Speaker 1: have a problem with. The gag order in general, I
• 4:29
  Speaker 1: understand completely. I might not like it, but I understand
• 4:32
  Speaker 1: why it's there. But when you get a bit overbroad
• 4:36
  Speaker 1: like this and you exceed the scope of what the
• 4:41
  Speaker 1: gag orders are supposed to be and what they're supposed
• 4:44
  Speaker 1: to do, that's when I take issue. Despite great public
• 4:50
  Speaker 1: interest in the investigation of the murders and now the
• 4:53
  Speaker 1: prosecution of Mr. Kohlberger, there have not been any notable
• 4:56
  Speaker 1: leaks or dissemination of extrajudicial information that would prejudice Mr.
• 5:02
  Speaker 1: Kohlberger's right to a fair trial. said Wendy Olson, the
• 5:05
  Speaker 1: attorney representing the coalition, in a statement to the court,
• 5:09
  Speaker 1: and she's correct. All of the so-called quote-unquote leaks that
• 5:14
  Speaker 1: we have seen so far, they really aren't going to
• 5:17
  Speaker 1: bear much, right? They're not going to turn the case
• 5:19
  Speaker 1: one way or the other. All they have done is
• 5:22
  Speaker 1: filled in some gaps, telling us that Brian Kohlberger was
• 5:26
  Speaker 1: at the Mad Greek, that he was following them on Instagram,
• 5:30
  Speaker 1: that he was at the University of Idaho campus, that
• 5:33
  Speaker 1: sort of stuff. We haven't heard anything tangible about evidence
• 5:37
  Speaker 1: in the case that has been leaked directly from investigators.
• 5:41
  Speaker 1: The petition said that the amended gag order has restrained
• 5:45
  Speaker 1: the coalition's rights to gather and publish newsworthy information about
• 5:49
  Speaker 1: the case. The petition argues there is also no evidence
• 5:53
  Speaker 1: collected from the district court that pretrial publicity will prejudice
• 5:57
  Speaker 1: Brian Kohlberger's Sixth Amendment right to a fair trial. And
• 6:01
  Speaker 1: I think some people are getting a bit carried away
• 6:03
  Speaker 1: with all of that. about how he's not going to
• 6:06
  Speaker 1: get a fair trial, yada, yada, yada, as if this
• 6:09
  Speaker 1: is the first high-profile trial we have ever seen. Ghislaine Maxwell,
• 6:14
  Speaker 1: she got a fair trial. Alec Murdoch, he's getting a
• 6:17
  Speaker 1: fair trial. And the list goes on and on and
• 6:20
  Speaker 1: on and on. So all of this hubbub, all of
• 6:23
  Speaker 1: this preening right now about Brian Kohlberger and his Sixth
• 6:27
  Speaker 1: Amendment rights and that he's not going to get a
• 6:29
  Speaker 1: fair trial, I find it all to be laughable. Because
• 6:33
  Speaker 1: when all is said and done, and all of the
• 6:35
  Speaker 1: posturing is over, it's going to be time to present
• 6:38
  Speaker 1: evidence in the courtroom. The petition said that the gag
• 6:44
  Speaker 1: order suppresses the petitioner's First Amendment rights and violates Article 1,
• 6:49
  Speaker 1: Section 9 of the Idaho Constitution, which states that every
• 6:53
  Speaker 1: person has the right to speak freely. In the court
• 6:57
  Speaker 1: document brief, the petitioners are arguing that the court violated
• 7:00
  Speaker 1: these rights by issuing a gag order without first finding
• 7:04
  Speaker 1: the prohibited speech will prejudice a criminal defendant's right to
• 7:08
  Speaker 1: a fair trial and any prejudice caused by the prohibited
• 7:12
  Speaker 1: speech cannot be prevented or through less restrictive means. The
• 7:17
  Speaker 1: Idaho Statesman is one of the news outlets that signed
• 7:20
  Speaker 1: on the coalition. Angela Palermo, a reporter for the newspaper,
• 7:25
  Speaker 1: said they believe the gag order violates their right to
• 7:28
  Speaker 1: free speech. Now, Brian Koberger certainly has his rights. But
• 7:33
  Speaker 1: us as a society and we as citizens, we certainly
• 7:37
  Speaker 1: have rights as well. So it's up to the court
• 7:40
  Speaker 1: to balance that fine line and make sure everybody's rights
• 7:44
  Speaker 1: are being respected. And when you have the broad scope
• 7:48
  Speaker 1: of a gag order like this, I don't think that's
• 7:50
  Speaker 1: what's happening. As usual, though, my opinion, your opinion, it
• 7:54
  Speaker 1: means squat. All that really matters is what the Supreme
• 7:57
  Speaker 1: Court ends up deciding. Palermo, a former University of Idaho
• 8:02
  Speaker 1: student who is one of the reporters covering the story,
• 8:05
  Speaker 1: said one of her colleagues was trying to get information
• 8:07
  Speaker 1: from law enforcement... about how many prison cells were in
• 8:28
  Speaker 1: the Latah County Prison where Kohlberger is being held. However,
• 8:32
  Speaker 1: they did not answer her question. And this is what
• 8:35
  Speaker 1: I said earlier, too. What they're going to do is
• 8:38
  Speaker 1: use this gag order to not answer any questions. And
• 8:41
  Speaker 1: that's not what it was supposed to be there for.
• 8:43
  Speaker 1: But that's how the state is going to roll. They're
• 8:46
  Speaker 1: going to say, oh, well, this is under gag. This
• 8:48
  Speaker 1: is an ongoing investigation. We can't give you that information. Meanwhile,
• 8:53
  Speaker 1: they can give you that information. They don't want to.
• 8:57
  Speaker 1: So you see, that's the issue when there's no transparency, right?
• 9:00
  Speaker 1: When you have a overarching gag order like this that
• 9:05
  Speaker 1: is really restrictive, it lets the state get away with
• 9:09
  Speaker 1: a lot of nonsense. And there's no way that how
• 9:14
  Speaker 1: many jail cells are in the county jail is covered
• 9:17
  Speaker 1: under that gag order. They wouldn't even answer that. And
• 9:21
  Speaker 1: that seems like the gag order wouldn't apply to something
• 9:24
  Speaker 1: like that. There's been a few instances where it seems
• 9:27
  Speaker 1: like court officials or police officers have kind of brushed
• 9:30
  Speaker 1: off questions saying that saying that we can't answer because
• 9:33
  Speaker 1: of the gag order, even though in that certain instance,
• 9:37
  Speaker 1: the gag order wouldn't apply, she said. And that's going
• 9:39
  Speaker 1: to be something that everyone's going to have to deal
• 9:42
  Speaker 1: with as far as the media and people covering this case.
• 9:46
  Speaker 1: They're going to use that gag order and they're going
• 9:48
  Speaker 1: to use it to their advantage. Anytime they don't want
• 9:50
  Speaker 1: to answer any questions, they'll just refer to the gag
• 9:53
  Speaker 1: order and say we're restricted from answering that question, even
• 9:57
  Speaker 1: if they're not. In another instance, Palermo's colleague asked the
• 10:02
  Speaker 1: Moscow Police Department how many cell towers were in the
• 10:06
  Speaker 1: area where the homicides occurred. However, they refused to answer
• 10:10
  Speaker 1: that question. I think there's also some officials who, because
• 10:13
  Speaker 1: the gag order is really broad and they're not able
• 10:16
  Speaker 1: to really clarify any of the specifics. So I think
• 10:19
  Speaker 1: some people are concerned about saying something where the gag
• 10:22
  Speaker 1: order could be applied in that scenario and when you're
• 10:26
  Speaker 1: in contempt of court, she said. The petition is requesting
• 10:29
  Speaker 1: the Idaho Supreme Court to recognize and hear their case,
• 10:33
  Speaker 1: arguing the court should promptly stop any further irreparable harm
• 10:38
  Speaker 1: by vacating or nullifying the amended gag order. Not the
• 10:42
  Speaker 1: original gag order, but the amended gag order. And this
• 10:46
  Speaker 1: is something that's going to be popping up all over
• 10:49
  Speaker 1: this case with officials using the gag order as a
• 10:52
  Speaker 1: crutch to not answer any questions or to be transparent
• 10:56
  Speaker 1: with the public. So for all of the people that
• 11:00
  Speaker 1: want to talk about how the gag order is protecting
• 11:02
  Speaker 1: rights and the integrity of the case, yada, yada, yada.
• 11:06
  Speaker 1: What about the constitutional rights of everybody else? So it
• 11:11
  Speaker 1: has to be that fine line. And I think that
• 11:13
  Speaker 1: when the Supreme Court takes a look at the gag order,
• 11:16
  Speaker 1: we'll see it get peeled back a little bit. Is
• 11:18
  Speaker 1: it going to go away completely? I doubt that. But
• 11:22
  Speaker 1: I think you'll see it get pared back a bit.
• 11:24
  Speaker 1: But to what extent, that's anyone's guess at this point.
• 11:28
  Speaker 1: Either way, we'll keep following along with it and we'll
• 11:31
  Speaker 1: see where it all ends up. All right, folks, that's
• 11:35
  Speaker 1: going to do it for this one. All of the
• 11:37
  Speaker 1: information that goes with this episode can be found in
• 11:40
  Speaker 1: the description box. What's up everyone and welcome back to
• 11:44
  Speaker 1: the program. In this episode, we're gonna take a look
• 11:47
  Speaker 1: at some more court documents and these documents have to
• 11:51
  Speaker 1: do with the non-dissemination order and the challenge to it
• 11:55
  Speaker 1: by the media. So let's dive in and see what's up.
• 11:59
  Speaker 1: The first document we have is the motion to intervene.
• 12:04
  Speaker 1: Case number CR29-22-2805. The state of Idaho plaintiff, Brian Kohlberger,
• 12:12
  Speaker 1: the defendant. Last week, the Idaho Supreme Court held that
• 12:17
  Speaker 1: a vague, overbroad, unduly restrictive or not narrowly drawn gag
• 12:22
  Speaker 1: order is an unconstitutional obstacle to interveners gathering information about
• 12:27
  Speaker 1: this case. In Petition for Writ of Mandamus or Writ
• 12:32
  Speaker 1: of Prohibition, number 50482-2023-WL3050829, at Star 5, Idaho, April 24, 2023.
• 12:45
  Speaker 1: But on procedural grounds, the Idaho Supreme Court decided that
• 12:49
  Speaker 1: this court should have a chance in the first instance
• 12:52
  Speaker 1: to vacate the amended non-dissemination order entered January 18, 2023,
• 12:58
  Speaker 1: the gag order. That is, the Idaho Supreme Court declined
• 13:03
  Speaker 1: to exercise its original jurisdiction because both the state and
• 13:07
  Speaker 1: federal courts often permit the media to to intervene in
• 13:11
  Speaker 1: criminal cases on a limited basis or at least file
• 13:15
  Speaker 1: a motion as interested parties in the defense of public
• 13:19
  Speaker 1: access and free speech, including in Idaho. Following the Idaho
• 13:24
  Speaker 1: Supreme Court's directive and for the reasons provided in the memorandum,
• 13:29
  Speaker 1: a coalition of media companies, the Associated Press, Radio Television,
• 13:34
  Speaker 1: Digital News Association, Sinclair Media of Boise, LLC, KBOI-TV, Boise,
• 13:42
  Speaker 1: States Newsrooms, DBA, Idaho Capital Sun, Tegna Incorporated, KREM Spokane,
• 13:49
  Speaker 1: KTVB Boise, and King Seattle, EastIdahoNews.com, The Lewiston Tribune, Washington
• 13:56
  Speaker 1: State Association of Broadcasters, Idaho Press Club, Idaho Education News, KXLY-TV4,
• 14:03
  Speaker 1: News Now, and KAPP, KVEW-TV, Morgan Murphy Media, KXLY-TV4, News Now,
• 14:12
  Speaker 1: Scripps Media, Inc., KIVI-TV, a Delaware corporation, The Spokesman Review,
• 14:19
  Speaker 1: CALS Corporation, The New York Times Company, Law News, Inc., ABC, Inc.,
• 14:25
  Speaker 1: WP Company, LLC, The Washington Post, Society of Professional Journalists,
• 14:31
  Speaker 1: The McClatchy Company, LLC, and The Seattle Times, collectively, interveners.
• 14:37
  Speaker 1: moved to intervene for the limited purpose of vindicating their
• 14:41
  Speaker 1: First Amendment rights by filing a contemporaneous motion to vacate
• 14:46
  Speaker 1: the amended non-dissemination order. This was dated on May 1st, 2023,
• 14:52
  Speaker 1: and it was signed by Wendy Olson, who is the
• 14:55
  Speaker 1: attorney for the interveners. The next document we have is
• 14:59
  Speaker 1: the motion to vacate the amended non-dissemination order. Case number,
• 15:05
  Speaker 1: CR 29-22-2805. State of Idaho Plaintiff, Brian Kohlberger, the defendant.
• 15:13
  Speaker 1: Last week, the Idaho Supreme Court held that a vague, overbroad,
• 15:18
  Speaker 1: unduly restrictive, or not narrowly drawn gag order, and is
• 15:23
  Speaker 1: an unconstitutional obstacle to interveners gathering information about this case.
• 15:28
  Speaker 1: Petition for writ of mandamus or writ of prohibition number 50482-2023-WL3050829.
• 15:40
  Speaker 1: But on procedural grounds, the Idaho Supreme Court decided that
• 15:44
  Speaker 1: this court should have a chance in the first instance
• 15:47
  Speaker 1: to vacate the amended non-dissemination order entered January 18th, 2023.
• 15:54
  Speaker 1: Following the Idaho Supreme Court's guidance and for the reasons
• 15:58
  Speaker 1: provided in the memorandum, interveners now ask this court to
• 16:03
  Speaker 1: vacate the gag order because it is vague, overbroad, unduly restrictive,
• 16:08
  Speaker 1: and narrowly drawn. This was dated on May 1st and
• 16:13
  Speaker 1: it was signed by Wendy Olson. The next document we
• 16:17
  Speaker 1: have is the memorandum in support of motion to intervene.
• 16:22
  Speaker 1: Case number CR 29-22-2805. State of Idaho, Plaintiff. Brian C. Kohlberger, Defendant.
• 16:33
  Speaker 1: Intervenors are a coalition of media companies that, but for
• 16:37
  Speaker 1: the amended non-dissemination order dated January 18, 2023, would gather
• 16:43
  Speaker 1: more information about Mr. Kohlberger's arrest and prosecution and make
• 16:48
  Speaker 1: editorial decisions about whether or and when to publish that information.
• 16:53
  Speaker 1: The state and Mr. Koberger, the parties stipulated to what
• 16:58
  Speaker 1: ultimately became the gag order and interveners were not given
• 17:02
  Speaker 1: an opportunity to submit any written or oral objections in
• 17:07
  Speaker 1: the approximately one hour between the parties submitting their stipulation
• 17:11
  Speaker 1: and the court issuing the original gag order in this case.
• 17:15
  Speaker 1: Because the gag order violates Intervenors' rights under the U.S.
• 17:20
  Speaker 1: and Idaho constitutions, they petitioned the Idaho Supreme Court to
• 17:24
  Speaker 1: vacate the gag order. Last week, the Idaho Supreme Court
• 17:28
  Speaker 1: held a vague, overbroad, unduly restrictive or not narrowly drawn
• 17:33
  Speaker 1: gag order is an unconstitutional obstacle to intervenors gathering information
• 17:39
  Speaker 1: about this case. In petition of writ for Mendamus or
• 17:44
  Speaker 1: writ of prohibition, number 50482-2023, WL30508-829. But on procedural grounds,
• 17:54
  Speaker 1: the Idaho Supreme Court decided that this court should have
• 17:58
  Speaker 1: a chance in the first instance to vacate the gag order.
• 18:02
  Speaker 1: That is, the Idaho Supreme Court declined to exercise its
• 18:06
  Speaker 1: original jurisdiction because interveners have an available remedy. The Idaho
• 18:12
  Speaker 1: Supreme Court acknowledged that Idaho's rules of criminal procedure do
• 18:16
  Speaker 1: not provide a specific mechanism for third parties to intervene
• 18:20
  Speaker 1: in a criminal case, but they observed that both the
• 18:23
  Speaker 1: state and federal courts often permit the media to intervene
• 18:28
  Speaker 1: in criminal cases on a limited basis, or at least
• 18:32
  Speaker 1: file a motion as interested parties in the defense of
• 18:36
  Speaker 1: public access and free speech, including in Idaho. following the
• 18:41
  Speaker 1: Idaho Supreme Court's direction to first seek relief before this court,
• 18:45
  Speaker 1: interveners now move to intervene for the limited purpose of
• 18:50
  Speaker 1: contemporaneously filing their motion to vacate the amended non-dissemination order.
• 18:56
  Speaker 1: This was dated on May 1st, 2023 and signed by
• 19:00
  Speaker 1: Wendy Olson. And the next document we have is the
• 19:04
  Speaker 1: order vacating hearing and setting scheduling conference for motions amended
• 19:10
  Speaker 1: non-dissemination order. Originally, remember, Brian Kohlberger was supposed to appear
• 19:15
  Speaker 1: on the 25th of May. Now that has been moved
• 19:19
  Speaker 1: a couple of days forward. And instead, he'll be appearing
• 19:23
  Speaker 1: on May 22nd. Case number, CR 29-22-2805. State of Idaho
• 19:32
  Speaker 1: plaintiff versus Brian Kohlberger, the defendant. A motion to appeal, amend,
• 19:37
  Speaker 1: or clarify the amended non-dissemination order and a memorandum in
• 19:42
  Speaker 1: support of motion for appeal and or clarification of amended
• 19:46
  Speaker 1: non-dissemination order were filed by counsel for the Gonsalves family
• 19:50
  Speaker 1: on February 3rd, 2023. A petition for a writ of
• 19:55
  Speaker 1: mandamus or a writ of prohibition was filed with the
• 19:58
  Speaker 1: Idaho Supreme Court docket number 50482-2023 on February 6th, 2023
• 20:02
  Speaker 1: titled the Associated Press and etc. v. 2nd Judicial District
• 20:12
  Speaker 1: of the State of Idaho, County of Latah, Honorable Megan E. Marshall,
• 20:16
  Speaker 1: Magistrate Judge, related to the amended non-dissemination order in this case.
• 20:22
  Speaker 1: A memorandum of points and authorities relating to non-dissemination order
• 20:27
  Speaker 1: and affidavit of Latah County Prosecutor William W. Thompson Jr.
• 20:32
  Speaker 1: were filed by the State of Idaho on February 8, 2023.
• 20:37
  Speaker 1: An objection to motion to appeal, amend and or clarify
• 20:41
  Speaker 1: non-dissemination order was filed by counsel for Mr. Koberger on
• 20:45
  Speaker 1: February 9th, 2023. On February 27th, 2023, the court issued
• 20:52
  Speaker 1: a notice regarding a hearing date on motion to appeal,
• 20:56
  Speaker 1: amend and or clarify amended non-dissemination order, providing notice that
• 21:02
  Speaker 1: the Gonsalves motion would be set for hearing on upon
• 21:05
  Speaker 1: the issuance of the Idaho Supreme Court's decision in the
• 21:09
  Speaker 1: Associated Press v. 2nd Judicial District. On April 24, 2023,
• 21:15
  Speaker 1: the Idaho Supreme Court issued an opinion dismissing the Associated
• 21:20
  Speaker 1: Press and their petition for a writ of mandamus or
• 21:23
  Speaker 1: a writ of prohibition. On April 28, 2023, the court
• 21:28
  Speaker 1: issued a notice of hearing setting the Gonsalves motion to appeal, amend,
• 21:33
  Speaker 1: and or clarify the amended non-dissemination order for a hearing
• 21:37
  Speaker 1: on May 25th, 2023. On May 2nd, 2023, the Associated
• 21:43
  Speaker 1: Press filed a motion to intervene and a motion to
• 21:46
  Speaker 1: vacate the amended non-dissemination order. The Gonsalves motion and the
• 21:51
  Speaker 1: Associated Press motion concern the same subject matter, the amended
• 21:56
  Speaker 1: non-dissemination order, and should be set for hearing at the
• 22:00
  Speaker 1: same time for judicial efficiency. Therefore, After due consideration, it
• 22:05
  Speaker 1: is hereby ordered that the motion hearing, Gonsalves' motion to appeal, amend,
• 22:10
  Speaker 1: and or clarify amended non-dissemination order scheduled for May 25,
• 22:17
  Speaker 1: 2023 is vacated. It is further ordered that the scheduling conference,
• 22:22
  Speaker 1: Gonsalves' motion to appeal, amend, and or clarify amended non-dissemination order,
• 22:28
  Speaker 1: and the Associated Press motion to intervene and motion to
• 22:31
  Speaker 1: vacate The amended non-dissemination order will be held on May 22nd,
• 22:36
  Speaker 1: 2023 at 10 a.m. via Zoom. It is further ordered
• 22:41
  Speaker 1: that any recording or live streaming of the Zoom's proceedings
• 22:45
  Speaker 1: is prohibited. This was signed by Judge Marshall. All right, folks,
• 22:50
  Speaker 1: so there it is. That's why there was a scheduling
• 22:53
  Speaker 1: change for Brian Kohlberger from May 25th to May 22nd.
• 22:58
  Speaker 1: All of the information that goes with this episode can
• 23:01
  Speaker 1: be found in the description box. What's up everyone and
• 23:04
  Speaker 1: welcome back to the program. In this episode, we're going
• 23:07
  Speaker 1: to dive back into those court documents and take a
• 23:10
  Speaker 1: look at a few of the new court documents to
• 23:13
  Speaker 1: hit the docket. And the first document we're going to
• 23:16
  Speaker 1: look at is the motion to intervene. Case number CR 29-22-2805.
• 23:20
  Speaker 1: State of Idaho plaintiff. Brian C. Koberger, the defendant. On
• 23:30
  Speaker 1: June 23rd, 2023, this court entered an order allowing 20
• 23:35
  Speaker 1: media outlets, with the Associated Press as the lead media outlet,
• 23:39
  Speaker 1: to intervene in this case for the limited purpose of
• 23:42
  Speaker 1: challenging the then-in-place amended non-dissemination order. Order granting motion to
• 23:49
  Speaker 1: intervene for limited purpose at 1 and 2. A nearly
• 23:53
  Speaker 1: identical media coalition, at this time consisting of 13 outlets,
• 23:58
  Speaker 1: outlets again seeks to intervene, this time for the limited
• 24:01
  Speaker 1: purpose of opposing Brian C. Kohlberger's motion to remove cameras
• 24:06
  Speaker 1: from the courtroom. Filed August 24, 2023, and currently set
• 24:09
  Speaker 1: for hearing on September 1, 2023. And for any other proceedings...
• 24:17
  Speaker 1: affecting media access to the proceedings, including whether cameras will
• 24:21
  Speaker 1: be allowed in the courtroom at trial. The Idaho Supreme
• 24:27
  Speaker 1: Court in the Associated Press v. 2nd Judicial District 529 P. 3D
• 24:34
  Speaker 1: 1259 Idaho 2023 made clear that even absent a specific
• 24:39
  Speaker 1: rule in Idaho, intervention by the media on a limited
• 24:43
  Speaker 1: basis is appropriate and to defend the public's right to
• 24:47
  Speaker 1: access and free speech. Idaho at 1267. Here intervention is
• 24:53
  Speaker 1: particularly appropriate where the court previously sought input from the
• 24:58
  Speaker 1: media coalition regarding cameras in the courtroom, but ultimately a
• 25:03
  Speaker 1: reserve ruling. Given the high profile nature of this case,
• 25:07
  Speaker 1: the public's interest in watching what is happening in the
• 25:10
  Speaker 1: courtroom is and Koberger's fundamental right to a fair trial
• 25:14
  Speaker 1: by an impartial jury. Order reserving ruling on the issue
• 25:18
  Speaker 1: of cameras in courtroom at 2. Mr. Koberger asks this
• 25:22
  Speaker 1: court to remove cameras in the courtroom on the grounds
• 25:25
  Speaker 1: that the media have failed to heed the court's admonishment
• 25:29
  Speaker 1: not to focus strictly on Mr. Koberger and to show
• 25:32
  Speaker 1: a wide shot of the courtroom if they wish to
• 25:35
  Speaker 1: continue filming court proceedings live. Motion at 2. Mr. Koberger's
• 25:41
  Speaker 1: subsequent citations to various media and social media publications do
• 25:46
  Speaker 1: not support his position, however. For example, Mr. Koberger cites
• 25:51
  Speaker 1: to a Fox News article that describes the court statement
• 25:55
  Speaker 1: to photographers and camera persons that they should not focus
• 25:59
  Speaker 1: exclusively on Mr. Koberger. That Fox News story does not
• 26:04
  Speaker 1: focus strictly on Mr. Koberger, however. It includes photos of A, Mr.
• 26:09
  Speaker 1: Kohlberger and defense counsel Jay Logsdon entering the courtroom. B,
• 26:14
  Speaker 1: defense counsel Ann Taylor and Alyssa Massoth entering the courtroom. C,
• 26:20
  Speaker 1: Latah County prosecuting attorney Bill Thompson in the courtroom. And D,
• 26:26
  Speaker 1: the murder victims. E, Mr. Kohlberger entering the courtroom. And F,
• 26:31
  Speaker 1: a still photo from... Video of an Indiana law enforcement
• 26:35
  Speaker 1: stop of the vehicle Mr. Koberger and his father were
• 26:38
  Speaker 1: in on December 15th, 2022. In addition, although Mr. Koberger
• 26:45
  Speaker 1: argues that he is entitled to defend himself against capital
• 26:48
  Speaker 1: charges without cameras focused on his fly motion at five.
• 26:53
  Speaker 1: That assertion misstates the role that courtroom camera coverage played
• 26:58
  Speaker 1: in the ex-formerly Twitter social media post that appears at
• 27:02
  Speaker 1: page three of his motion. No photographs or camera coverage
• 27:07
  Speaker 1: focused on Mr. Koberger's fly. Rather, one random ex-user modified
• 27:12
  Speaker 1: a photo showing Mr. Koberger and a deputy entering the
• 27:16
  Speaker 1: courtroom by cropping it to a very small size, focused
• 27:20
  Speaker 1: on his belt, and adding a reference to Mr. Kohlberger's fly.
• 27:24
  Speaker 1: Motion at three. Even the crop photo itself does not
• 27:28
  Speaker 1: focus on Mr. Kohlberger's fly. And a broader review of
• 27:33
  Speaker 1: media coalition stories. Following this court's June 27th, 2023 statement
• 27:39
  Speaker 1: shows that media coalition participants and other longtime media outlets
• 27:44
  Speaker 1: have followed the court's direction. For example, A KTVB story
• 27:49
  Speaker 1: covering the August 23, 2023 hearing showed a variety of
• 27:54
  Speaker 1: camera shots, including a broad shot that showed the entire courtroom,
• 27:58
  Speaker 1: both counsel tables, and the bench. B, a close-up of
• 28:02
  Speaker 1: the judge. C, a slightly zoomed-in shot of Mr. Koberger
• 28:07
  Speaker 1: and his counsel, in which the Zoom feed could also
• 28:10
  Speaker 1: be seen. D, still shots of the victims. And E,
• 28:14
  Speaker 1: an interview of a legal analyst. And ABC News coverage
• 28:19
  Speaker 1: on Good Morning America in August showed a variety of
• 28:22
  Speaker 1: shots of the courtroom and the defendant with still photos
• 28:26
  Speaker 1: and stock footage of earlier developments in the case. The
• 28:30
  Speaker 1: coverage also provided balanced coverage of the state's and Mr.
• 28:34
  Speaker 1: Kohlberger's position on the motion before the court. These stories
• 28:39
  Speaker 1: did not focus exclusively on footage or close-ups of Mr. Kohlberger. Finally,
• 28:45
  Speaker 1: Many of the outlets who seek to intervene have significant
• 28:48
  Speaker 1: experience broadcasting live courtroom proceedings, including in high-profile trials that
• 28:54
  Speaker 1: resulted in both acquittals, Wisconsin v. Kyle Rittenhouse, Ohio v.
• 29:00
  Speaker 1: Skylar Richardson, and Conviction, South Carolina v. Alec Murdaugh. Their
• 29:06
  Speaker 1: camera equipment and operators are experienced, and not the large, clunky,
• 29:10
  Speaker 1: numerous camera equipment and operators that the Supreme Court expressed
• 29:15
  Speaker 1: concern about in Estes v. State of Texas, 381 U.S. 532, 1965.
• 29:22
  Speaker 1: In Estes, there were at least 12 camera operators in
• 29:27
  Speaker 1: the courtroom for a pretrial hearing, and the equipment journalists
• 29:30
  Speaker 1: used was noisy, required cables lying through the courtroom, and
• 29:35
  Speaker 1: that trial involved some newsreel-style cameras. Idaho at 5.30. The
• 29:41
  Speaker 1: court can take judicial notice that similar equipment is not
• 29:44
  Speaker 1: involved here. Plainly, the Supreme Court's concerns in Estes do
• 29:49
  Speaker 1: not require removal of the more modest, less intrusive camera
• 29:53
  Speaker 1: equipment being used by reporters in this case. Accordingly, The
• 29:58
  Speaker 1: Media Coalition seeks to intervene for the limited purpose of
• 30:02
  Speaker 1: opposing Mr. Kohlberger's motion to remove cameras from the courtroom
• 30:06
  Speaker 1: and to make full argument and briefing on this issue.
• 30:10
  Speaker 1: This was signed by Wendy J. Olson, who is the
• 30:14
  Speaker 1: lawyer for the Media Coalition. The next document we have
• 30:19
  Speaker 1: is the order regarding notice of hearing Zoom information. Case
• 30:24
  Speaker 1: number CR29-22-2. dash 2805. State of Idaho plaintiff versus Brian C. Koberger,
• 30:32
  Speaker 1: the defendant. The court is mindful that limited courtroom capacity
• 30:37
  Speaker 1: and potential travel restrictions may interfere with the victim's and
• 30:41
  Speaker 1: the defendant's family's ability to observe the court proceedings in
• 30:45
  Speaker 1: this case on September 1st, 2023 at 1 p.m. Pacific time. Therefore,
• 30:52
  Speaker 1: in the event that they are unable or prefer not
• 30:55
  Speaker 1: to attend the proceeding in person, the court finds it
• 30:58
  Speaker 1: necessary to make the court proceedings available via Zoom for
• 31:02
  Speaker 1: the victims and the defendant's immediate family members under the
• 31:06
  Speaker 1: following restrictions. It is hereby ordered that 1. The victims
• 31:11
  Speaker 1: and the defendant's immediate family members may observe the court
• 31:14
  Speaker 1: proceedings in person or via Zoom. 2. The Zoom information
• 31:19
  Speaker 1: above shall not be disseminated to anyone other than the
• 31:24
  Speaker 1: victims and the defendant's immediate family members. Number three, any
• 31:29
  Speaker 1: recording or live streaming of the proceeding is prohibited. And
• 31:33
  Speaker 1: this document was dated on August 29th, 2023, and also
• 31:38
  Speaker 1: signed by Judge Judge. And the final document for this
• 31:42
  Speaker 1: episode is the notice of intent not to cross-examine defense witnesses,
• 31:47
  Speaker 1: district court decision, and records to explain witness contact. Case
• 31:53
  Speaker 1: number CR 29-22-2805. State of Idaho Plaintiff, 1st Brian C. Koberger,
• 32:01
  Speaker 1: the defendant. At the hearing on the state's motion for
• 32:06
  Speaker 1: a protective order and the defendant's third motion to compel,
• 32:09
  Speaker 1: held on August 18, 2023, the court allowed the state
• 32:13
  Speaker 1: to reserve cross-examination of two witnesses. Gabriela Vargas, who the
• 32:19
  Speaker 1: defense disclosed without a CV the day before the hearing,
• 32:22
  Speaker 1: and Leah Larkin, for whom the defense disclosed a PowerPoint
• 32:26
  Speaker 1: presentation for the first time during her direct examination. The
• 32:31
  Speaker 1: state has determined that it need not cross-examine either of
• 32:35
  Speaker 1: these witnesses. And in addition, the state mentioned during its
• 32:39
  Speaker 1: argument at the hearing that Judge Whitney in Canyon County
• 32:43
  Speaker 1: ruled on a similar issue one week prior to the
• 32:46
  Speaker 1: hearing and and that the state would provide the written
• 32:49
  Speaker 1: ruling once available. The transcript of that hearing is now available,
• 32:53
  Speaker 1: and the relevant portion of the transcript is attached as
• 32:57
  Speaker 1: Exhibit A. Finally, at the hearing on August 23, 2023,
• 33:01
  Speaker 1: defense counsel suggested in open court that the state had
• 33:06
  Speaker 1: improperly contacted Ms. Vargas. The state has attached under seal
• 33:11
  Speaker 1: as Exhibit B the reports and other records that explain
• 33:15
  Speaker 1: the contact. The state would ask this court to grant
• 33:19
  Speaker 1: the requested protective order or permit the state to present
• 33:23
  Speaker 1: the information it seeks to protect the court in an
• 33:26
  Speaker 1: in-camera hearing. This was signed by Jeff Nye and William Thompson,
• 33:33
  Speaker 1: and it was dated on August 29th of 2023. All right, folks,
• 33:38
  Speaker 1: that's going to do it for this one. All of
• 33:40
  Speaker 1: the information that goes with this episode can be found
• 33:44
  Speaker 1: in the description box. What's up, everyone, and welcome back
• 33:48
  Speaker 1: to the program. In this episode, we're going to dive
• 33:52
  Speaker 1: back into some more of the court documents. And this time,
• 33:55
  Speaker 1: we're going to take a look at the brief in
• 33:58
  Speaker 1: opposition by the intervener, the state of Idaho. And like
• 34:04
  Speaker 1: the other larger court filings, we're going to do this
• 34:08
  Speaker 1: one in two parts as well. So skipping straight through
• 34:11
  Speaker 1: the table of contents, we're going to get right into
• 34:14
  Speaker 1: the meat of the filings. Section 1, Introduction. Free speech
• 34:21
  Speaker 1: and fair trials are two of the most cherished policies
• 34:25
  Speaker 1: of our civilization, and it would be a trying task
• 34:28
  Speaker 1: to choose between them. Bridges v. California, 314, U.S. 252, 260, 1941.
• 34:35
  Speaker 1: The court need not engage in the delicate balancing of
• 34:41
  Speaker 1: these rights where the sole basis of the claimed infringement
• 34:45
  Speaker 1: is access to interviews by the media. See Pell v. Proconier,
• 34:52
  Speaker 1: 417 U.S. 817, 834-35, 1974. For the rights of the
• 34:59
  Speaker 1: media to gather information are no greater than those of
• 35:03
  Speaker 1: the general public. This case involves the duty of the court,
• 35:07
  Speaker 1: counsel for the accused, and prosecutor to safeguard the rights
• 35:11
  Speaker 1: of the parties to a fair trial and impartial jury.
• 35:16
  Speaker 1: On January 18th, 2023, Respondent Judge Megan E. Marshall entered
• 35:22
  Speaker 1: an amended non-dissemination order in the case of State of
• 35:26
  Speaker 1: Idaho v. Brian C. Koberger, CR 29-22-2805, underlying criminal case,
• 35:36
  Speaker 1: which orders that 1. The attorneys for any interested party
• 35:40
  Speaker 1: in this case, including the prosecuting attorney, defense attorney, and
• 35:44
  Speaker 1: any attorney representing a witness, victim, or victim's family, as
• 35:49
  Speaker 1: well as the parties to the above entitled action, including,
• 35:53
  Speaker 1: but not limited to, investigators, law enforcement personnel, and agents
• 35:58
  Speaker 1: for the prosecuting attorney or defense attorney, are prohibited from
• 36:02
  Speaker 1: making extrajudicial statements, written or oral, concerning this case, except,
• 36:08
  Speaker 1: without additional comment, a quotation from or references to the
• 36:13
  Speaker 1: official public record in the case. Declaration of Wendy J. Olson.
• 36:19
  Speaker 1: Example C, the amended non-dissemination order was issued after an
• 36:24
  Speaker 1: in-chambers meeting between the parties and the attorneys for the
• 36:28
  Speaker 1: victims' families. Declaration of Deborah A. Ferguson, example A. While
• 36:33
  Speaker 1: many may claim to be bound by the amended non-dissemination order,
• 36:38
  Speaker 1: the order specifically limits the speech of attorneys for any
• 36:42
  Speaker 1: interested party, any attorney representing a witness, victim, or victim's family, investigators,
• 36:49
  Speaker 1: law enforcement personnel, and agents for the prosecuting attorney and
• 36:54
  Speaker 1: defense attorney in line with Rule 3.6 of the Idaho
• 36:58
  Speaker 1: Rules of Professional Conduct. Following the entry of the amended
• 37:03
  Speaker 1: non-dissemination order, the petitioners in this case, approximately 30 media companies,
• 37:09
  Speaker 1: filed for the issuance of writ of mandamus or writ
• 37:14
  Speaker 1: of prohibition to vacate or nullify the amended gag order.
• 37:19
  Speaker 1: This case, however, is not about a restriction on speech
• 37:23
  Speaker 1: of the press, a contempt order, or the closure of
• 37:26
  Speaker 1: a court proceeding, but the safeguarding of the right to
• 37:29
  Speaker 1: a fair trial by an impartial jury and the incidental
• 37:33
  Speaker 1: effects of the amended non-dissemination order on the petitioner's ability
• 37:38
  Speaker 1: to to interview certain trial participants. First, the petitioners are
• 37:44
  Speaker 1: not entitled to a writ of mandamus or a writ
• 37:47
  Speaker 1: of prohibition because their First Amendment rights have not been
• 37:51
  Speaker 1: infringed upon by the incidental effects of the amended non-dissemination order.
• 37:56
  Speaker 1: The petitioners are free to seek interviews from witnesses and
• 38:00
  Speaker 1: observe the court proceedings in the underlying case. This court
• 38:05
  Speaker 1: should follow the reasoning of the Ninth and Second Circuit
• 38:07
  Speaker 1: Court of Appeals in Radio and Television News Association of
• 38:12
  Speaker 1: Southern California versus U.S. District Court of Central District of
• 38:16
  Speaker 1: California 781 F. 2D 1143 Ninth Circuit Court 1986 and in
• 38:19
  Speaker 1: the application of Dow Jones and Company Incorporated 842 F. 2D
• 38:21
  Speaker 1: 603 2D Circuit Court 1988. Even if the court were
• 38:37
  Speaker 1: to expand the powers of the media to attack lawful
• 38:41
  Speaker 1: orders in criminal cases which bind those parties involved to
• 38:45
  Speaker 1: the rules of professional conduct, the amended non-dissemination order meets
• 38:50
  Speaker 1: the dictates of strict scrutiny because the order addresses the
• 38:55
  Speaker 1: serious and imminent threat that unrestricted extrajudicial statements posed in
• 39:01
  Speaker 1: a case surrounded by intense publicity. is narrowly drawn to
• 39:05
  Speaker 1: trial participants, and is the least restrictive alternative. See Levine v. U.S.
• 39:12
  Speaker 1: District Court for Central District of California, 764F. 2D. 590. 567- 601. 1985. Finally, the
• 39:17
  Speaker 1: court should not create a First Amendment right which has
• 39:20
  Speaker 1: not been recognized, the right to access or interview trial participants. Thus,
• 39:33
  Speaker 1: the respondent intervener requests that the court deny the petition
• 39:37
  Speaker 1: for a writ of mandamus or a writ of prohibition.
• 39:43
  Speaker 1: Part 2 Statement of the Case As set out by
• 39:47
  Speaker 1: the respondent, intervener State of Idaho, Latah County Prosecutor, in
• 39:51
  Speaker 1: its February 17, 2023 memorandum, in support of a petition
• 39:56
  Speaker 1: for leave to intervene by the State of Idaho, Latah
• 40:00
  Speaker 1: County Prosecutor, in criminal case number CR 29-22-2805, the defendant,
• 40:08
  Speaker 1: Brian C. Koberger, is charged by criminal complaint of the
• 40:12
  Speaker 1: State of Idaho, with four counts of murder in the
• 40:15
  Speaker 1: first degree and one count of burglary. The case is
• 40:19
  Speaker 1: still in pretrial phase and is set for preliminary hearing
• 40:23
  Speaker 1: on June 26th of 2023. This case and investigation have
• 40:29
  Speaker 1: been the subject of great publicity. In light of such publicity,
• 40:33
  Speaker 1: the parties in the underlying criminal case stipulated to the
• 40:37
  Speaker 1: entry of the non-dissemination order on January 3rd, 2023. That
• 40:43
  Speaker 1: order was later amended on January 18th, 2023, to ensure
• 40:48
  Speaker 1: the balance between protecting the right to a fair trial
• 40:52
  Speaker 1: and for all parties involved. Prior to the issuance of
• 40:56
  Speaker 1: the amended non-dissemination order, the attorneys for the parties in
• 40:59
  Speaker 1: the underlying criminal case and attorneys for the victims' families
• 41:04
  Speaker 1: met with Judge Megan E. Marshall via Zoom on January 13th, 2023.
• 41:10
  Speaker 1: that the order mirrors Idaho rules of professional conduct, Rule 3.6,
• 41:15
  Speaker 1: and that any of the attorneys in the case should
• 41:18
  Speaker 1: not be speculating about what will happen to the media.
• 41:23
  Speaker 1: On February 14, 2023, the petitioners in this case filed
• 41:28
  Speaker 1: a petition for a writ of mandamus, or a writ
• 41:31
  Speaker 1: of prohibition, asking that the Supreme Court vacate or nullify
• 41:36
  Speaker 1: the amended gag order. Respondent Intervener State of Idaho-Latah County
• 41:41
  Speaker 1: Prosecutor was granted leave to intervene on February 23, 2023
• 41:48
  Speaker 1: and submits this brief in opposition to the writ. Part 3.
• 41:54
  Speaker 1: Issue Presented Respondent Intervener State of Idaho-Latah County Prosecutor would
• 42:00
  Speaker 1: reframe the issues for the court as follows. Whether Respondent
• 42:05
  Speaker 1: Judge Megan E. Marshall's amended Nondissemination order adequately balances the
• 42:10
  Speaker 1: Sixth Amendment right to a fair and impartial trial guaranteed
• 42:15
  Speaker 1: by the United States Constitution against the effect on the
• 42:18
  Speaker 1: petitioner's ability to interview the attorneys, investigators, law enforcement personnel
• 42:24
  Speaker 1: and agents for the prosecution and defense in the underlying
• 42:29
  Speaker 1: criminal case. Part four standard of review. as stated in
• 42:37
  Speaker 1: Idaho v. District Court of 4th Judicial District. Article 5,
• 42:43
  Speaker 1: Section 9 of the Idaho Constitution grants this court original
• 42:47
  Speaker 1: jurisdiction to issue writs of prohibition. For the writ of
• 42:51
  Speaker 1: prohibition to issue, it is necessary that two contingencies must
• 42:56
  Speaker 1: be shown. One, that the tribunal, corporation, board, or person
• 43:01
  Speaker 1: is proceeding without or in excess of the jurisdiction of
• 43:06
  Speaker 1: of such tribunal corporation board or person and that there
• 43:10
  Speaker 1: is not a plain speedy and adequate remedy in the
• 43:14
  Speaker 1: ordinary course of law to right of appeal is regarded
• 43:18
  Speaker 1: as a plain and speedy and adequate remedy at law
• 43:22
  Speaker 1: in the absence of a showing of exceptional circumstances or
• 43:26
  Speaker 1: the inadequacy of an appeal to protect existing rights prohibition
• 43:32
  Speaker 1: is primarily concerned with jurisdiction and is not available to
• 43:36
  Speaker 1: review errors committed in the exercise of jurisdiction. A writ
• 43:41
  Speaker 1: of prohibition, like a writ of mandate, will not lie
• 43:44
  Speaker 1: to control discretionary acts of court acting within their jurisdiction.
• 43:49
  Speaker 1: An application bears the burden of showing that the lower
• 43:52
  Speaker 1: court is acting without or in excess of its jurisdiction.
• 43:58
  Speaker 1: Jurisdiction is a question of law over which this court
• 44:02
  Speaker 1: exercises free review. The writ of prohibition is a discretionary
• 44:07
  Speaker 1: remedy under Idaho common law, granted only when the court
• 44:11
  Speaker 1: concludes that the remedy is appropriate. The term jurisdiction has
• 44:16
  Speaker 1: specific meaning in the context of a writ of prohibition.
• 44:20
  Speaker 1: That is, when used in reference to a writ of prohibition,
• 44:24
  Speaker 1: the word jurisdiction includes power or authority confirmed by law. Thus,
• 44:30
  Speaker 1: in the context of a writ of prohibition, the question
• 44:33
  Speaker 1: of jurisdiction is is not merely a question of whether
• 44:37
  Speaker 1: the tribunal had subject matter and personal jurisdiction, but also
• 44:42
  Speaker 1: whether the tribunal had the lawful authority to take the
• 44:45
  Speaker 1: action that it did. All right, folks, that's going to
• 44:49
  Speaker 1: do it for part one of the brief in opposition
• 44:54
  Speaker 1: by the intervener state of Idaho. All of the information
• 44:58
  Speaker 1: that goes with this episode can be found in the
• 45:01
  Speaker 1: description box.