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Judge rules Bryan Kohberger’s defense team can continue juror survey in murder case

Second District Judge John Judge speaks during a court hearing in Latah County District Court on Sept. 13, 2023, in Moscow, Idaho, for Bryan Kohberger, who is accused of killing four University of Idaho students in November 2022.  (Ted S. Warren/Associated Press/Pool)
By Angela Palermo Idaho Statesman

The judge in the University of Idaho student murder case has lifted the court’s order prohibiting contact with prospective jurors and ruled that Bryan Kohberger’s defense team can continue its surveys, without modification, in its effort to justify a change of venue.

Judge John Judge of Idaho’s 2nd Judicial District in Latah County admonished Anne Taylor, Kohberger’s lead public defender, at an April 4 hearing over the defense’s phone poll of hundreds of potential jurors that prosecutors argued likely defied the court’s gag order. Taylor alleged that Judge violated her client’s constitutional rights by halting the poll.

Judge said he first learned of the poll after it was finished.

“This was a total shock to me,” Judge told Taylor at the hearing. “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 March court order. But he ordered Friday that the defense may continue its surveys without changing the questions. The polling is part of the defense’s efforts to justify a change of venue out of the county for Kohberger’s anticipated capital murder trial.

Latah County Prosecutor Bill Thompson said the poll’s questions could prejudice the local jury pool. He didn’t take issue with the survey itself, but with certain questions the poll asked of 400 Latah County residents who could be called as jurors in the trial.

The defense plans to conduct surveys in two additional counties.

Thompson cited nine questions from the initial survey that concerned prosecutors. Those included inquiries about the facts surrounding Kohberger’s arrest at his parents’ home in eastern Pennsylvania; law enforcement finding a leather knife sheath at the crime scene and DNA located on it reportedly matching Kohberger’s; and whether the defendant drove the same type of car that was seen on video recorded in the neighborhood where the homicides took place, the Idaho Statesman previously reported.

The questions are now part of the court record.

Two questions with false information at issue

The defense said the questions were formulated by defense expert Bryan Edelman from reading and watching various news articles and broadcasts, as well as from social media reports. Edelman is the co-founder of California-based jury consultancy Trial Innovations.

They argued the questions didn’t violate the gag order because they constituted information contained in the public record.

“… Some of the questions on the survey are not rooted in fact or supported by admissible evidence but are simply rumors in the media and on social media, while other questions were formulated based on information from the public probable cause affidavit filed by the state,” the Friday court order stated.

Information for six of the nine questions came from the probable cause affidavit. One question was not based on evidence but instead asked about the feelings of the Moscow community.

The remaining two questions were based on information that “may not be true,” according to the order.

At a hearing April 11, Edelman said he did not dispute that two of his survey questions, specifically those concerning whether Kohberger had stalked or followed the victims on social media, included false information. Attorneys on both sides of the case agreed that the defendant did not stalk one of the victims. Reports that he had followed one of the victims on social media were deemed false.

“Because the information is now in the public record, the court does not see any benefit in preventing the defense from continuing its surveys or requiring that the two questions at issue be eliminated,” Judge wrote in his ruling. He reminded attorneys involved in the case that any extrajudicial statements must comply with the gag order.

Kohberger, 29, is a former Washington State University graduate student. He’s accused of killing four U 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.