Judge rebukes Kohberger defense team for juror phone survey

BOISE — The man charged with murder in the University of Idaho student homicides returned to court Thursday for a hearing over his defense paying a survey firm to contact potential jurors as his attorneys try to build arguments that an impartial jury is not possible in the county where the crime took place. 

Led by Latah County Prosecutor Bill Thompson, state attorneys objected to public defenders for Bryan Kohberger asking certain types of questions in a phone poll of 400 county residents who could be called as jurors in the capital murder trial. Doing so could prejudice the local jury pool, he argued during the hastily scheduled and lightly attended hearing. 

“We don’t care about surveys. We care about these particular questions asked in this particular survey,” Thompson told the court Thursday. “Just because they’re put in the form of a question doesn’t change the fact that they are affirmative representation of a fact, that if the listener was not aware of it now they have been tainted by it.”

Thompson alleged the defense had, whether willfully or inadvertently, violated the court’s standing gag order that prohibits the attorneys in the case from public statements about it. 

Judge John Judge of Idaho’s 2nd Judicial District in Latah County, who is overseeing the Kohberger case, seemed to side with prosecutors on the issue, though he did not issue a ruling Thursday. On Thompson’s urging last month, he barred attorneys on both sides from contacting possible jurors in a court order issued ahead of Thursday’s hearing.

Kohberger, 29, is accused of killing four U of I students in November 2022. Prosecutors plan to seek the death penalty if a jury convicts him, though a date trial has yet to be set.

The victims were seniors Kaylee Goncalves and Madison Mogen, both 21, and junior Xana Kernodle and freshman Ethan Chapin, both 20. The three women rented the off-campus house in Moscow where they were stabbed to death while Chapin was staying the night with Kernodle, his girlfriend. 

Kohberger’s defense, led by public defender Anne Taylor, objected and argued that Judge’s decision to stop their community survey work before a court hearing violated Kohberger’s rights under the 14th Amendment guaranteeing due process. Judge, heated at points, rejected the allegation. 

“I am being accused — directly accused, OK? — by you in your brief, that I violated his due process rights,” Judge fired at Taylor. “Now, that’s not what the law says and that’s not what the facts are.” 

Taylor acquiesced when challenged, but vented frustration over a legal process that did not allow the defense to continue its work ahead of a looming deadline later this month to file briefs justifying its position for a change of venue. 

She did not write or preview the survey firm’s questions beforehand, she said, and sought to avoid scrapping the already completed poll work, which was intended for comparison with responses in at least two other counties before Judge halted it with his order.

“Doing these surveys is not an anomaly,” Taylor told the court Thursday. “This is something that’s done in these high-profile cases.” 

She accepted responsibility for not ensuring that the survey firm had received a copy of Judge’s gag order in the case as it prepared poll questions. She emailed the firm a copy of the order, Taylor said, but didn’t follow through to confirm it had received it, which the company had not, for unknown reasons.

Judge, unsure of how exactly to move forward, pushed a ruling out until after another scheduled hearing on the issue next Wednesday. He said he planned to delay the deadlines for filing change of venue arguments by two weeks.

The decision also could delay a scheduled May 14 hearing for arguments on whether to move Kohberger’s murder trial to another county in the state. The defense had been working toward an April 17 deadline to file their briefs with support for the request, which was the basis of the phone surveys. The state’s response was to be due May 1. 

Also due April 17 is Kohberger’s alibi if his attorneys plan to argue such a defense.

Earlier this week, the family of Kaylee Goncalves took aim at the extended timeline for Kohberger to file an alibi. They again voiced their frustration that Judge has yet to set a trial date.

“To me, it’s simple: WHERE WERE YOU DURING THESE TIMES ON THIS DAY????” the family posted to their dedicated Facebook page. “Not sure why the judge keeps allowing more time for this either. If we can’t get past some of the simplest things, how will we ever get to trial?”