Petition opposes Kohberger gag order
Feb. 8—Attorneys on Tuesday filed a petition with the Idaho Supreme Court opposing a gag order that prohibits law enforcement and attorneys from talking publicly about the Bryan Kohberger case.
Kohberger is in Latah County Jail facing four counts of first-degree murder and one count of burglary in the November stabbing deaths of University of Idaho students Kaylee Goncalves, Madison Mogen, Xana Kernodle and Ethan Chapin. He awaits his June 26 preliminary hearing.
Days after Kohberger's arrest on Dec. 30, Latah County Magistrate Judge Megan Marshall signed the nondissemination order, or gag order, that prohibited law enforcement and attorneys associated with the case from talking about it to the media and public. That order was later amended to include attorneys representing survivors, witnesses and the victims' family members.
The amended gag order states there is a balance between protecting the right to a fair trial and the right to free expression.
"To preserve the right to a fair trial some curtailment of the dissemination of information in this case is necessary and authorized under the law," it states.
A coalition of media organizations that includes the Moscow-Pullman Daily News and the Lewiston Tribune filed a petition to vacate this amended gag order on the belief it violates the First Amendment.
The coalition is being represented by Wendy Olson and Cory Carone of Boise law firm Stoel Rives LLP. Olson is the former U.S. Attorney for the District of Idaho.
On Thursday, the attorney for the Goncalves family, filed a motion to appeal for an amended gag order arguing that it should not apply to the victims' families as they are not parties in the case.
In the petition submitted by Olson and Carone, it claims Latah County District Court made no factual findings explaining why the gag order was necessary. The petition argues there is no evidence the pretrial publicity will prejudice Kohberger's right to a fair trial.
"More speech does not mean a less fair trial; the speech at issue must be the kind that could prejudice a jury," Olson and Carone argue. "And even when publicity may cause prejudice, the answer is not always to suppress the speech. Other remedies like the passing of time, a change in venue, voir dire, jury instructions, and jury sequestration can cleanse any jury taint without offending the right to speech."
The petition lists several examples of officials like Moscow Mayor Art Bettge, the Moscow Police Department and Washington State University Police Chief Gary Jenkins refusing to communicate with reporters because of the gag order.
The petition argues that the gag order wrongly assumes all speech about the case is prejudicial against Kohberger.
"As a result, sources of newsworthy information have declined to provide information about topics like how the Moscow community is healing, how many cellphone towers are around where the murder occurred, the size of Mr. Kohberger's cell, the meals Mr. Kohberger receives, and Mr. Kohberger's job applications to the Pullman Police Department because of the gag order or the amended gag order," it states. "Those topics of speech, while arguably subject to the amended gag order, are unlikely to prejudice Mr. Kohberger. Yet they are suppressed."
Other media outlets that are part of the coalition include The Seattle times, The New York Times and The Washington Post.
According to Carone, the Idaho Supreme Court typically schedules an oral argument for the petition, though it does not have to.
Kuipers can be reached at akuipers@dnews.com.
