MOSCOW, Idaho — For the second straight week, Latah County Judge John Judge has deferred a decision on whether or not quadruple-murder suspect Bryan Kohberger’s defense team violated the case’s gag order while completing a community attitude survey to make their case as to why Kohberger cannot get a fair trial in Latah County.
Wednesday’s hearing followed a contentious impromptu hearing last Thursday, 13 days after Judge John Judge put an emergency halt on the Kohberger team’s comparative survey to see if Latah County residents were too biased to handle the case. The survey, which had already been given over the phone to 400 residents of Latah County, asked residents how much they had heard about the case, and Kohberger’s team planned to interview two other counties in Idaho to compare the results before the survey was stopped.
Judge’s decision came after the prosecution team presented a transcript from an audio recording obtained from someone who was interviewed, revealing the survey included loaded questions with specific details about the case, such as, “Have you read, seen, or heard if police found a knife sheath on the bed next to one of the victims?”
Latah County Prosecutor Bill Thompson argued this was a violation of the gag order preventing either side from talking about the case to the public, and could taint potential jurors who would no longer be allowed to serve on a jury in this case. On the contrary, Defense Attorney Ann Taylor argued Judge’s pause on the survey violated Kohberger’s right to due process, an argument Judge dismissed quickly.
The follow-up hearing started off in a similar contentious manner, with Thompson starting by raising objections to a presentation given to him five hours before the meeting by the author of the survey, trial consultant Bryan Edelman. Judge said he hadn’t seen the presentation before the hearing, and Thompson said it included a partial survey and an argument about moving the trial, something not being discussed today. After 25 minutes of argumentation, Judge decided to allow the entire presentation.
Edelman’s testimony opened with an explanation of his role, saying his role as a trial consultant would be to advocate for a client. Still, in this case he’s an expert on change of venue, meaning he’s an impartial fact finder who could either support or oppose moving the case from Latah County depending on the evidence he collects. At one point, he said his expertise has led him to learn that open-ended questions, such as a broad “what do you know” leads to survey respondents withholding information.
Through other high-profile cases, Edelman said the first thing he does is go through media coverage and see if it’s prejudicial, for example if untrue or inadmissible evidence is presented at trial. If he finds there is prejudicial coverage, the next question he asks is how the coverage impacted the jury pool, the purpose of the community attitude survey.
Edelman says he looks at media outlets that would be viewed by people living in Latah County to gauge what potential jurors might be seeing. Edelman also said he was aware of the non-dissemination order, but it didn’t affect his work in this case, saying everything he used in the survey was widely reported in the media.
At one point in Edelman’s attached presentation, which Thompson objected to being used several times, there was a video of Thompson telling the media that the probable cause documents would be coming out soon, and that media should share the details with their viewers when unsealed, back from Dec. 30, 2022. He also pulled out screenshots from another local television station after the probable cause documents were unsealed, claiming the community was loaded with prejudicial coverage.
Seeing the supposedly prejudicial coverage, Edelman says they used a random digit dial survey which he modeled off surveys that have been done for decades that has been used hundreds of times, including in the Oklahoma City bombing case, the Boston Marathon bombing case, the George Floyd case and the Parkland shooting case. He laid out a four-step process:
Checking the survey respondents’ eligibility for jury duty.Seeing the community’s attitudes towards criminal justice.Seeing how much the respondent knows about the case and how much they’ve prejudged the outcome.Seeing the demographics and media consumption habits of the juror area.
He said the third part is the meat of the survey, asking respondents widely reported facts, and then asking innocence or guilt questions based on the facts. Edelman also said if the respondents say they’ve never heard of the case, the case-specific questions are skipped entirely and the survey goes straight to media consumption and demographic questions.
When asked by Taylor if he would change the survey by just throwing out the case-specific questions, Edelman said he wouldn’t because an open-ended question always ends up with people not being able to recall all the details they actually know about the case.
Edelman said the questions in the survey were valid for several reasons in regard to the Kohberger case. He said only 3-4% of respondents didn’t know about the case at all, also saying respondents who did know provided 1.6 details about the case with the open-ended question, but on average recognized six of the nine case-specific media questions. 96% of respondents knew at least one more detail than provided initially. He also presented numbers stating people who knew more facts were much more likely to think Kohberger is guilty.
Edelman said even the coverage of last week’s hearing, in his opinion accusing the defense team and himself of wrongdoing, adds to more prejudicial information against Kohberger. Taylor’s questioning of Edelman ended with him saying he was offended by Thompson’s allegations, and he would only continue work on this case if the court allowed him to do his survey the way he intended to do it initially.
In a brief, contentious cross-examination, Thompson said his primary focus is Edelman’s survey tainting the jury pool with fact-specific information, including what he says is a false question about Kohberger stalking one of the victims. Edelman responded by saying he doesn’t care whether or not the case-specific details are true or not, but whether or not they have created prejudice in the case.
After an hour and a half with Edelman on the stand, Judge weighed in and said the non-dissemination order was specifically designed to prevent details not in the probable cause documents, such as the stalking claim, from coming out.
For the purposes of finishing the comparative survey in other counties, Edelman proposed to Judge the potential of using the case-specific questions, but throwing out the ones not based on the probable cause affidavit.
Appearing conflicted about the validity of the survey, Judge started asking Edelman questions about his survey, including if there were any biases since there’s a specific type of person who would pick up the phone for a random number and how many more people he’d have to interview in Ada and Bonneville counties.
After Edelman left the stand, the defense presented Judge with an argument about why they should be allowed to continue their survey. They said the media has spun information from the affidavit, even if the false information is not directly found from the document.
Judge replied asking the defense what the non-dissemination order is even about if not for this, but the defense said they wanted to silence the prosecutor, law enforcement and the press. They also said “you can’t taint what’s tainted,” saying the survey didn’t do anything to affect a potential jury pool since such a high percentage are already tainted.
They also argued that the survey should be allowed to continue with false information since they are trying to prove that Latah County is saturated with false, prejudiced information. They closed by saying Judge has two choices: either allow the survey to continue or to hear how Latah County is biased without having any comparison.
In response, Thompson hammered home his point, saying he understands why Edelman’s survey was written the way it was, but that it still violated the non-dissemination order. He said there’s a simple solution to fixing the survey, re-do it completely while removing the objectionable questions.
In response to Thompson, the defense said indignantly that they did not violate the non-dissemination order. Judge responded by saying he understands the reasoning for the survey, but that two of the questions were clearly never in the public record, and if the defense wants to point out where it is, he would be open to them doing so.
Judge said he doesn’t expect to make a decision this week, but would like to make a decision as soon as possible given the time-sensitive nature of the survey. The hearing about moving the case from Latah County, which was scheduled for mid-May, was rescheduled for June 27 at 10 a.m.
