Media outlets refile Idaho lawsuit seeking withdrawal of Moscow homicide case gag order

·4 min read
Kevin Fixler/

Legal efforts to abandon a wide-ranging gag order issued by the judge overseeing the case against Moscow homicide suspect Bryan Kohberger have been renewed after a ruling last week from Idaho’s high court that denied one of the petitions.

Attorneys for more than two dozen media outlets, including the Idaho Statesman, resubmitted filings Monday evening in the 2nd Judicial District Court in Latah County after the Idaho Supreme Court dismissed the complaint on procedural grounds. They seek an end to the nondissemination order, arguing that it suppresses First Amendment rights.

“Following the Idaho Supreme Court’s guidance, intervenors now ask this court to vacate the gag order because it is vague, overbroad, unduly restrictive and not narrowly drawn,” the complaint signed by Boise-based attorney Wendy Olson read. “The gag order thus should be vacated.”

The petition was initially filed with the state Supreme Court in February. The five justices, however, ruled against accepting the case, and unanimously decided they did not find “extraordinary circumstances” warranting the skipping of legal steps. The complaint should first be filed in Idaho district court, the opinion penned by Justice Gregory W. Moeller said.

Latah County Magistrate Judge Megan Marshall issued the gag order in January after Kohberger’s arrest. Two weeks later, she expanded the parties to whom it applies. Presently, the order restricts law enforcement, attorneys for the prosecution and defense, as well as attorneys for witnesses, victims and the victims’ families from commenting about the case outside of court filings.

Four University of Idaho students were found stabbed to death at an off-campus rental home in Moscow in November. The victims were Madison Mogen, 21, of Coeur d’Alene; Kaylee Goncalves, 21, of Rathdrum; Xana Kernodle, 20, of Post Falls; and Ethan Chapin, 20, of Mount Vernon, Washington.

Kohberger, 28, who at the time was a Washington State University graduate student, was arrested just under seven weeks later on Dec. 30. He is charged with four counts of first-degree murder and one count of felony burglary in a case that qualifies for Idaho’s death penalty.

Judge says gag order preserves right to fair trial

The shocking homicides almost immediately garnered national and international attention. In issuing the expanded gag order, Marshall said that it was necessary to preserve Kohberger’s right to a fair trial.

“There is balance between protecting the right to fair trial for all parties involved and the right to free expression as afforded under both the United States and Idaho Constitution,” she wrote.

Kohberger’s attorney, Anne Taylor, chief of the Kootenai County Public Defender’s Office, and Latah County Prosecutor Bill Thompson supported maintaining the gag order as it is written in court filings.

Olson, a former U.S. attorney for the District of Idaho who is now with the private law firm Stoel Rives, filed the lawsuit on behalf of the media coalition. The group is led by The Associated Press and also includes The New York Times, Washington Post and a dozen Idaho news outlets.

“While we are disappointed that the (Supreme) Court denied the petition, the media coalition now has a clear path under Idaho law to challenge the gag order and vindicate these important First Amendment rights,” Cory Carone, Olson’s co-counsel in the case, told the Statesman last week in an emailed statement.

Victim’s family also challenges gag order

Four days before Olson filed the media petition with the Idaho Supreme Court, the attorney for the Goncalves family filed a separate challenge to Marshall’s order in her 2nd Judicial District Court. But Marshall put that petition on hold until after the high court’s ruling.

Shanon Gray, the Goncalves’ attorney, requested that Marshall amend the gag order to remove attorneys for victims’ family from being barred from commenting. Gray argued that he is not a party to the case.

“I am not an attorney of record involved in this case. I have played no part in the investigation, prosecution or defense of the case. Neither the state nor the defense has shared any information regarding the case,” Gray wrote in his February filing, adding that Marshall’s nondissemination order is “overbroad and vague.”

Following the state Supreme Court’s decision, Gray’s case now moves forward, with the appeal scheduled for a hearing in Marshall’s court at 10 a.m. on May 25. A date has yet to be set for the case involving the media coalition.