BOISE, Idaho — Attorneys for Moscow homicide defendant Bryan Kohberger seek to pause his court proceedings while they await delivery of contested records from last month’s grand jury indictment that pushed the closely watched case to a trial scheduled for October.
Kohberger’s defense team may consider challenging the indictment of their client by the confidential panel, which the prosecution sat exclusively for this case. The defense requested the details of those grand jury hearings, including all transcripts and recordings, presented evidence and the jurors’ names, to decide how to move forward, according to court records.
Three days after the announcement of the indictment, the defense asked for a detailed list of 34 pieces of information included in grand jury records. And for several weeks, the prosecution and defense in the case have been at odds over some of the records, and whether state law or court precedent allows their release.
Judge John Judge of Idaho’s 2nd Judicial District Court in Latah County, who is overseeing the case, scheduled a June 27 hearing to decide what the defense will be allowed to review — and also what it might not.
Anne Taylor, Kohberger’s lead public defender, asked last week in a filing that Judge at that time also rule on the defense’s request for a pause. Led by Latah County Prosecutor Bill Thompson, the prosecution objected on procedural grounds.
“Mr. Kohberger seeks to stay the proceedings,” Taylor wrote in a court filing. “He is exercising his due diligence to discover the grounds upon which to file a motion to dismiss related to how the grand jury was selected. He is being delayed through no fault of his own.”
Kohberger, 28, stayed silent when asked to enter a plea at his May 22 arraignment to retain his right to dispute the indictment based on probable cause, Taylor wrote in the filing. The decision led Judge to automatically enter a plea of not guilty for the man charged with the November stabbing deaths of four University of Idaho students.
The victims were Madison Mogen, 21, Kaylee Goncalves, 21, Xana Kernodle, 20, and Ethan Chapin, 20. They were each found dead in the women’s off-campus rental home on Nov. 13. Chapin was Kernodle’s boyfriend and stayed over for the night.
Questions over grand jury impartiality
In response, the prosecution argued that certain pieces of information in records sought by Kohberger’s defense are not available for review under Idaho law. A judge must determine if the defense has demonstrated “good cause” to warrant release of “more than what the rules expressly allow,” Thompson said in a filing.
“The Idaho Supreme Court has explained that ‘grand jury proceedings are intended, to the extent possible, to be secret,’ ” Thompson argued, citing a 2015 case. “… (T)he appropriate course of action at this point is for the court to enter an order for preparation and release of transcript of the grand jury proceedings.”
In a follow-up filing, Thompson said that he agreed that the records made available to the defense should meet their request for the grand jury selection process.
“(B)ecause this grand jury was empaneled specifically for the case at bar, the state believes that the transcript/record should include the jury selection process,” he wrote.
The prosecution previously moved to seal from the public the names of all witnesses who testified before the grand jury, citing possible threats, harassment and intimidation that could “undermine not only the integrity of this case, but the parties’ prospective rights to fair trial with an impartial jury.” The defense, which will have access to the information, did not object, and Judge issued the seal order.
Edwina Elcox, a Boise-based criminal defense attorney, said the request for grand jury records from Kohberger’s attorneys goes beyond what is typically made available. They’re doing so to review possible ways to toss their client’s indictment, she said.
“When the state elects to sit a grand jury, they’re supposed to ensure that there’s certain procedural safeguards,” said Elcox, also a former Ada County deputy prosecutor. “Defense attorneys are doing their job and need to vet that out, because we have no way of doing that, because the proceedings are so secret, unless you give us that information.”
Retired Judge Jay Gaskill, previously of Idaho’s 2nd Judicial District Court in Nez Perce County, presided over the grand jury, according to court records.
Depending on what Kohberger’s attorneys find in the grand jury records, there could be several pathways to upending the planned trial, Elcox said. One possible strategy, she said, could be to argue that Latah County was too heavily impacted by the students’ deaths, including intense media scrutiny of the investigation that led to Kohberger’s arrest, that an unbiased grand jury made up of local residents was unachievable.
“To empanel a grand jury that is really impartial to decide if there’s probable cause would be a real uphill battle,” Elcox said. “Unfortunately the grand jury system does not afford checks and balances to make those assurances because the defense can’t even minimally participate in that process.”
Given the stakes, still with the possibility that the prosecution may seek the death penalty, Kohberger’s defense aims for a favorable ruling from Judge concerning the grand jury records, and pause of court proceedings in the meantime. Their client’s murder trial is currently set to start in 15 weeks.
“Jury trial is scheduled to begin Oct. 2, 2023. Time is of the essence,” Taylor wrote.
