Judge considers challenge to silence order in University of Idaho killings

A judge presiding over the case against Bryan Kohberger, who is charged in the killings of four University of Idaho students last fall, heard arguments with news reporters Friday over a gag order that largely bars lawyers and other parties involved in the case to speak.

A coalition of more than 30 media organizations challenged the order, saying it violated constitutional guarantees of free speech and free press, as did a lawyer for one of the victim's families. But prosecutors and the defendant's lawyers insist this is necessary to prevent biased reporting that could harm Kohberger's right to a fair trial.

“It remains appropriate to have an order reminding attorneys and their representatives of the rules of engagement in this country and that we try cases in court and not in the press,” one of Kohberger's attorneys, Jay Weston Logsdon, wrote in a memo to the court this week.

Second District Judge John C. Judge indicated that he would later rule on the silence order and on a separate issue of whether cameras should be allowed in the courtroom as proceedings continue.

Kohberger, 28, is charged with four counts of first-degree murder and first-degree burglary in connection with the Nov. 13, 2022, stabbing in Moscow, Idaho. The judge entered a not guilty plea on his behalf last month. Prosecutors have not said whether they will seek the death penalty.

The bodies of Madison Mogen, Kaylee Goncalves, Xana Kernodle and Ethan Chapin were found in a rental home across from the University of Idaho campus. The killings shocked the rural community in Idaho and neighboring Pullman, Washington, where Kohberger was a graduate student studying criminology at Washington State University.

The case has attracted widespread attention, and in January Latah County Magistrate Judge Megan Marshall issued a “non-disclosure” order barring attorneys, law enforcement and others involved in the case from speaking to the press speak or make statements, unless they quote directly from a court document.

The Idaho Supreme Court declined to overturn the silence order in April, saying news organizations, including The Associated Press, should have first asked the lower court to overturn the order. The justices did not weigh in on whether the gag order violated First Amendment rights.

The news organizations then asked the lower court to revoke the order, and the judge scheduled proceedings for Friday. The media coalition says that while the court respects the defendant's right to a fair trial under the Sixth Amendment, the court should not have issued a gag order without evidence that the right was violated by the opportunity to speak to those in the case speaking to the lawyers involved would be violated.

“The interveners agree that this case has and will continue to attract significant public attention,” the coalition’s lawyers wrote. “But advertising alone is not harmful. …The State's and Mr. Kohberger's failure to provide evidence of prejudicial coverage and the Court's failure to consider alternative measures means that the competing constitutional rights here have not been properly balanced and the gag order should be struck down. “

Gag orders that prohibit journalists from writing about certain cases are considered extremely problematic under the First Amendment. But the U.S. Supreme Court and other appeals courts have upheld some that prohibit lawyers, police or others involved in a case – those who have confidential information about it – from speaking to reporters in advance so as not to influence potential jurors or otherwise jeopardize a defendant's right to a fair trial.

Shanon Gray, an attorney for the Goncalves family, has also asked the judge to lift the gag order, saying he should be allowed to speak on behalf of the family.

During Friday's argument, Wendy Olson, an attorney for the media group, argued that even if the gag order is lifted, ethics rules for lawyers will remain that prohibit them from making public statements that have a “substantial likelihood of materially affecting” the case.

Olson suggested that allowing prosecutors and defense attorneys to speak to reporters – if they wanted to – to explain, for example, court procedures or conditions, would improve coverage of the case for the benefit of the public.

Logsdon disagreed, denigrating the press at length and insisting that reporters were only interested in generating clicks online.

“The reality is that if they spoke to us, they would pick and choose from what we said, they would twist what we said into things we never meant, and they would continue to spin the same narrative “that gets them clicks,” he said.

Anna Harden

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