Judge in U of I murder case rebukes Bryan Kohberger defense team for juror phone survey

MOSCOW (Idaho Statesman) — The judge in the University of Idaho student murder case admonished Bryan Kohberger’s attorney at a hearing Thursday over the defense’s survey of potential jurors that prosecutors argued likely defied the court’s gag order, and for alleging he violated her client’s constitutional rights by halting the poll.

Judge John Judge of Idaho’s 2nd Judicial District in Latah County chided Anne Taylor, Kohberger’s lead public defender, for the types of questions included in the survey of county residents, as well as for the way in which he learned about it from prosecutors after a phone poll of hundreds of prospective jurors was already finished. The survey is part of the defense’s efforts to justify a change of venue out of the county for Kohberger’s anticipated trial.

“This was a total shock to me,” Judge told Taylor on Thursday. “Because this is a big deal, and I take it very, very seriously. And I was surprised, OK, that this was happening behind our backs — my back.”

At the urging of prosecutors, Judge barred attorneys on both sides from contacting possible jurors in a court order last month.

“Now I’m being accused of violating a due process, which is a whole big issue for me,” Judge said.

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 trial date 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 attended the hearing in a black suit and tie, seated next to Taylor with no other defense attorneys present in the courtroom. Latah County Prosecutor Bill Thompson was joined by Ashley Jennings, his office’s senior deputy prosecutor, for the hastily scheduled and lightly attended hearing.

MOSCOW POLICE INVESTIGATED SURVEY

Held at the Latah County Courthouse in Moscow, the hearing was livestreamed on YouTube. At its peak, the hour and a half hearing had nearly 2,500 viewers.

Led by Thompson, prosecutors objected to Kohberger’s defense team commissioning the poll that asked certain types of questions 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.

He listed off specific questions of significant concern to prosecutors from the survey. They included inquiries about the facts surrounding Kohberger’s arrest at his parent’s home in eastern Pennsylvania; law enforcement finding a leather knife sheath at the crime scene and DNA located on it matching Kohberger; and whether the defendant drove the same type of car as was seen on video recorded in the neighborhood where the homicides took place.

“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.”

He said the 400 people who were surveyed would likely have to be disqualified from being called as prospective jurors in the Kohberger case if the trial stays in the county. Judge indicated he agreed.

When prosecutors learned of the poll last month, they contacted Moscow police to investigate, Thompson said. They suspected the defense was behind it, but waited to lodge their complaint with Judge until they had enough information to understand whether or not it may be problematic, he said.

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

“I can guarantee that if I went down to the bar and had a few drinks and was talking with some people and saying, ‘Hey, did you know this about the Kohberger case?’ and the defense found out about it, they would go ballistic,” Thompson said. “And for good reason. That should never happen.”

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 and exasperated at others, rejected the allegation.

“Now, that’s not what the law says and that’s not what the facts are,” Judge said. “I have no doubt that I did not violate due process rights of Mr. Kohberger.”

DEFENSE: JURY SURVEYS COMMON IN HIGH-PROFILE CASES

Taylor acquiesced when challenged by Judge, 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 also pushed back against suggestions that the questions in the poll broke with the requirements of Judge’s gag order, and stated the 400 residents surveyed represented less than 1% of the county’s population.

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

Taylor said she did not write or preview the survey firm’s questions beforehand, and they were instead based on information that already is in the news media. She sought to avoid scrapping the already completed poll work, which was intended for comparison with responses in at least two other counties before Judge stopped it with his prior ruling.

The defense’s survey firm has already determined that Latah County is biased against Kohberger, Taylor acknowledged to Judge.

“I anticipate he’s going to recommend the changed venue for that reason,” Taylor said.

Provided Prospective trial destinations could be Ada County or either Bannock or Bonneville counties in southeast Idaho, she said. The Kohberger case isn’t on the front page of the newspaper each day on that side of the state, Taylor said, and Ada County has the state’s largest airport and has a history of handling other major criminal cases.

Taylor 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 said she emailed the firm a copy of the order, but didn’t follow up to confirm it had received it, which the company had not, for unknown reasons.

Thompson asked Judge to rule that any further polling by the defense must have questions vetted by the court, and that the results from the initial survey in Latah County be thrown out.

Unsure of how exactly to move forward, Judge pushed a ruling 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.

“I mean, I could just make the decision right now, but I’m not an expert about surveys,” he said. “I want to make the best decision I can, if possible.”

Judge’s decision to extend the filing deadline also could delay a scheduled May 14 hearing for arguments on whether to move Kohberger’s murder trial elsewhere. 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 at trial.

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?”