WEBVTT 1 00:00:04.000 --> 00:00:07.960 What's up everyone, and welcome back to the program. Judge 2 00:00:08.000 --> 00:00:12.240 Hipler recently shot down Brian Colberger's motion for a continuance, 3 00:00:12.599 --> 00:00:14.240 and in this episode, we're going to take a look 4 00:00:14.279 --> 00:00:16.679 at that order as we begin to ramp up our 5 00:00:16.760 --> 00:00:21.440 coverage of the Brian Colberger trial. Case number CR zero 6 00:00:21.519 --> 00:00:24.920 one DASH twenty four DASH three one sixty sixty five 7 00:00:25.960 --> 00:00:29.879 redacted memorandum Decision and order on Defendant's motion to continue 8 00:00:30.440 --> 00:00:34.280 State of Idaho Plaintiff first, Brian C. Coberger. The defendant 9 00:00:35.000 --> 00:00:38.520 introduction before the court is defendant's motion to continue the 10 00:00:38.560 --> 00:00:43.039 trial in this matter. The basis for the motion is threefold. First, 11 00:00:43.039 --> 00:00:45.799 he asserts that the volume of discovery continues to pose 12 00:00:45.840 --> 00:00:49.520 a challenge to his counsel's ability to timely and meaningfully 13 00:00:49.560 --> 00:00:52.719 review all of it. Second, he asserts that there is 14 00:00:52.799 --> 00:00:57.479 penalty phase investigation and preparation that still needs to be done. Third, 15 00:00:57.520 --> 00:01:00.560 he asserts that recent and forthcoming publicity on the case 16 00:01:00.640 --> 00:01:05.280 is highly prejudicial. Maintaining the current trial setting under these circumstances, 17 00:01:05.439 --> 00:01:11.040 he argues, will render any conviction and sentence unconstitutional. The 18 00:01:11.079 --> 00:01:14.159 State responds that defendant's motion is untimely and that he's 19 00:01:14.159 --> 00:01:17.400 failed to show either good cause for continuing the trial 20 00:01:17.840 --> 00:01:21.319 or prejudice that would result from maintaining the current trial setting. 21 00:01:22.359 --> 00:01:25.319 Oral argument on the motion was held on June eighteenth, 22 00:01:25.319 --> 00:01:28.200 twenty twenty five, after which the Court took the matter 23 00:01:28.359 --> 00:01:32.239 under advisement. The court finds a continuance is not warranted 24 00:01:32.560 --> 00:01:34.879 as defendant has not made a showing that there is 25 00:01:34.920 --> 00:01:38.239 good cause to continue the trial or that his substantial 26 00:01:38.319 --> 00:01:43.560 rights will be prejudiced by proceeding to trial is scheduled standard, 27 00:01:43.920 --> 00:01:46.439 a motion for continuance of trial is addressed to the 28 00:01:46.480 --> 00:01:51.000 sound discretion of the trial court State Versuchoa one sixty nine, Idaho, 29 00:01:51.040 --> 00:01:55.359 twenty twenty two. On discretionary matters, the trial court must 30 00:01:55.400 --> 00:01:59.319 one correctly perceive the issue as one of discretion to 31 00:01:59.560 --> 00:02:02.400 act with in the outer boundaries of its discretion, three 32 00:02:02.879 --> 00:02:07.040 consistently with the legal standards applicable to the specific choice 33 00:02:07.040 --> 00:02:10.280 available to it, and four reached its decision by the 34 00:02:10.360 --> 00:02:17.319 exercise of reason Lundberg vers My Fun Life, twenty eighteen. Analysis. 35 00:02:18.439 --> 00:02:21.400 Under Idaho law, a criminal defendant seeking a continuance of 36 00:02:21.400 --> 00:02:25.000 a trial must demonstrate that his or her substantial rights 37 00:02:25.199 --> 00:02:29.159 will be prejudiced absent a continuance State vs. Kegel one 38 00:02:29.280 --> 00:02:33.680 twenty six, nineteen ninety five. Unless an appellant shows that 39 00:02:33.719 --> 00:02:36.599 his or her substantial rights have been prejudiced by reason 40 00:02:36.599 --> 00:02:39.759 of a denial of his or her emotion for continuance, 41 00:02:40.240 --> 00:02:43.120 appellate courts can only conclude that there was no abuse 42 00:02:43.360 --> 00:02:48.120 of discretion. Trial judges necessarily require a great deal of 43 00:02:48.199 --> 00:02:52.439 latitude in scheduling trials, the burden of assembling the witnesses, lawyers, 44 00:02:52.439 --> 00:02:55.599 and jurors at the place in time for trial counsels 45 00:02:55.599 --> 00:02:59.400 against continuances. Except for the most compelling reasons, there are 46 00:02:59.400 --> 00:03:02.280 no mechountical tests for deciding when a denial of a 47 00:03:02.319 --> 00:03:06.360 continuance is so arbitrary as to violate due process. The 48 00:03:06.439 --> 00:03:10.479 answer must be found in the circumstances present in every case, 49 00:03:10.840 --> 00:03:13.800 particularly in the reasons presented to the trial judge at 50 00:03:13.800 --> 00:03:17.319 the time the request is denied. Matter of one one 51 00:03:17.439 --> 00:03:21.240 seventy Idaho, nineteen sixty four. Where a continuance is sought 52 00:03:21.280 --> 00:03:24.479 based on the late disclosure or discovery of evidence, the 53 00:03:24.520 --> 00:03:28.240 alleged tardiness of the discovery must be shown to sole 54 00:03:28.280 --> 00:03:31.919 prejudice the defendant's case. Preparation that a fair trial will 55 00:03:31.960 --> 00:03:36.479 be denied State Verse tap Yo one twenty seven, Idaho 56 00:03:36.960 --> 00:03:41.400 nineteen ninety five. The bare claim that additional investigation could 57 00:03:41.439 --> 00:03:44.680 have been conducted is not sufficient to demonstrate on fair 58 00:03:44.759 --> 00:03:49.960 prejudice so as to support a motion for a continuance. Additionally, 59 00:03:49.960 --> 00:03:52.319 where a continuance is sought for the potential receipt of 60 00:03:52.319 --> 00:03:56.280 evidence from further investigation, the motion is properly denied if 61 00:03:56.319 --> 00:04:01.800 based on speculation. Row versu Katovich, California, August twenty six, 62 00:04:01.840 --> 00:04:06.319 twenty fourteen. Defendant argues the continuance is necessary for him 63 00:04:06.520 --> 00:04:10.439 to sufficiently review relevant discovery, conduct a full and complete 64 00:04:10.439 --> 00:04:15.400 investigation of mitigation evidence, particularly claim newly revealed evidence that 65 00:04:15.479 --> 00:04:20.199 allegedly raise red flags, and remedy the prejudice caused by 66 00:04:20.279 --> 00:04:23.639 recent and upcoming inflammatory publicity and the alleged leak of 67 00:04:23.639 --> 00:04:28.639 information to the media. Moving forward with the trial, he warns, 68 00:04:28.680 --> 00:04:31.839 will violate his rights under the United States and Idaho 69 00:04:31.920 --> 00:04:35.120 Constitution a due process to be free from cruel and 70 00:04:35.279 --> 00:04:39.279 unusual punishment, to a fair trial, to effective assistance of counsel, 71 00:04:39.879 --> 00:04:43.000 to present a defense and confront witnesses, and to affair 72 00:04:43.360 --> 00:04:49.360 and reliable sentencing determination absent from defendant's materials. However, is 73 00:04:49.399 --> 00:04:52.560 any good cause for the continuance or legitimate showing of 74 00:04:52.600 --> 00:04:58.480 prejudice should the trial proceed as scheduled. A defendant has 75 00:04:58.480 --> 00:05:03.839 not demonstrated a continuance of warranted to review discovery. Defendant 76 00:05:03.839 --> 00:05:06.040 first contends that the vast amount of discovery in the 77 00:05:06.040 --> 00:05:09.240 case renders it impossible for the defense team to review 78 00:05:09.279 --> 00:05:12.480 the necessary and relevant discovery in a manner that allows 79 00:05:12.519 --> 00:05:16.839 for it to comprehensively integrate it into his defense. He 80 00:05:16.959 --> 00:05:20.319 further argues, without any support or explanation, that there are 81 00:05:20.319 --> 00:05:23.240 a myriad of reasons that continue to arise from the 82 00:05:23.319 --> 00:05:27.199 state failing to comply with discovery and expert disclosure deadlines, 83 00:05:27.959 --> 00:05:31.240 a continuance, he argues, as necessary for a council to 84 00:05:31.319 --> 00:05:35.879 mount an effective defense. The court, however, rejected this same 85 00:05:35.959 --> 00:05:38.759 argument two months ago when defendants sought to strike the 86 00:05:38.759 --> 00:05:43.279 death penalty and impose discovery obligations upon the state. In 87 00:05:43.319 --> 00:05:45.680 its order, the court observed the utter lack of any 88 00:05:45.720 --> 00:05:50.279 proof supporting defendant's accusations of discovery violations by the state. 89 00:05:51.079 --> 00:05:55.120 More importantly, the court found defendant's complaints of being unable 90 00:05:55.160 --> 00:05:59.959 to meaningfully review discovery entirely unconvincing, pointing out that Council 91 00:06:00.199 --> 00:06:04.279 struggled to articulate in any meaningful way what evidence, let 92 00:06:04.279 --> 00:06:08.360 alone relevant evidence, counsel had been unable to review over 93 00:06:08.399 --> 00:06:11.560 the past two plus years, and why efforts to facilitate 94 00:06:11.560 --> 00:06:15.199 discovery review were not made long ago through this court 95 00:06:15.439 --> 00:06:19.040 and the resource. Judge defend in second round to this 96 00:06:19.199 --> 00:06:22.759 argument fares no better. He again fails to identify the 97 00:06:22.800 --> 00:06:26.120 relevant discovery that his council has yet to review. He 98 00:06:26.160 --> 00:06:29.240 also fails to identify any steps his council has taken, 99 00:06:29.519 --> 00:06:33.199 particularly since the court's prior order to aid and processing 100 00:06:33.240 --> 00:06:37.759 the yet unreviewed discovery. Moreover, he does not explain why 101 00:06:37.759 --> 00:06:41.120 he waited to seek a continuance until after discovery closed, 102 00:06:41.720 --> 00:06:45.319 expert disclosure deadlines passed, and the pre trial conference occurred. 103 00:06:46.160 --> 00:06:49.759 If defense counsel was truly struggling with discovery review, this 104 00:06:49.879 --> 00:06:53.639 motion should have been made when the claim problem became apparent, 105 00:06:54.000 --> 00:06:56.959 and certainly should have been brought prior to the expiration 106 00:06:57.199 --> 00:07:02.519 of discovery, all expert deadlines, and the final pre trial conference. Instead, 107 00:07:02.839 --> 00:07:07.439 defense counsel has robustly litigated the case, retaining approximately two 108 00:07:07.439 --> 00:07:11.639 dozen experts and a full mitigation team, engaging in extensive 109 00:07:11.720 --> 00:07:15.759 motion practice, and disclosing witness and exhibit lists with nearia 110 00:07:15.839 --> 00:07:20.079 whisper that a continuance would be sought. These actions belie 111 00:07:20.079 --> 00:07:25.600 as Counsel's ongoing and ultimately empty discovery complaints. Without more, 112 00:07:25.720 --> 00:07:28.920 the court can only conclude that the Defense Council is 113 00:07:29.040 --> 00:07:32.680 using the volume of discovery measured in terabytes as a 114 00:07:32.720 --> 00:07:35.800 tactic to delay the preceding at the eleventh hours, simply 115 00:07:35.839 --> 00:07:38.959 for the sake of delay, rather than a legitimate threat 116 00:07:38.959 --> 00:07:44.079 of prejudice to defendants substantial rights. Perhaps even more problematic 117 00:07:44.240 --> 00:07:46.920 and more telling is the utter failure of the Defense 118 00:07:46.920 --> 00:07:50.959 Council now or at any time, to specify not only 119 00:07:51.240 --> 00:07:54.399 what needs to be reviewed, but importantly when that review 120 00:07:54.439 --> 00:07:59.120 would be complete and defendant ready for trial. Instead, defendant 121 00:07:59.160 --> 00:08:02.600 seeks and on bounded continuance with no apparent plan to 122 00:08:02.639 --> 00:08:06.800 complete the review of unspecified evidence that Council claims it 123 00:08:06.839 --> 00:08:10.879 has yet to review. This is not sufficient to warrant 124 00:08:11.040 --> 00:08:16.519 a continuance b Defendant is not established a continuance is 125 00:08:16.600 --> 00:08:20.839 necessary to conduct a more thorough life history investigation and 126 00:08:20.959 --> 00:08:26.480 identify necessary experts. Defendant next argues he needs additional time 127 00:08:26.519 --> 00:08:30.360 to investigate and prepare mitigation evidence, which he contends is 128 00:08:30.480 --> 00:08:35.799 necessary to uphold his constitutional rights, particularly those under the 129 00:08:35.840 --> 00:08:40.279 Eighth and six Amendments. Specifically, the defense team claims that 130 00:08:40.600 --> 00:08:44.559 to be effective, counsel must conduct an exhaustive and comprehensive 131 00:08:44.600 --> 00:08:49.240 dive into defendants life history for additional mitigation evidence, analyze 132 00:08:49.240 --> 00:08:53.200 the information into a cohesive narrative for the jury, and 133 00:08:53.320 --> 00:08:57.960 identify any additional behavioral, cultural, scientific, and or mental health 134 00:08:58.000 --> 00:09:02.000 experts that may be necessary Mary to develop the mitigation presentation. 135 00:09:03.080 --> 00:09:06.559 Despite having hired a mitigation team two years ago, defense 136 00:09:06.600 --> 00:09:11.080 counsel contends that recently discovered redacted have raised red flags 137 00:09:11.399 --> 00:09:16.639 that defendant may have redacted. According to defendant's primary mitigation investigator, 138 00:09:16.720 --> 00:09:20.120 Attorney redacted, her team of four have been diligent in 139 00:09:20.159 --> 00:09:24.840 their investigation into defendant's life history, but there have been redacted. 140 00:09:25.919 --> 00:09:28.279 She believes that with time, she will be able to 141 00:09:28.279 --> 00:09:33.600 overcome these barriers. By redacted XPARTE declaration, May twentieth, twenty 142 00:09:33.679 --> 00:09:38.360 twenty five, Defendant has not demonstrated a continuance to accommodate 143 00:09:38.399 --> 00:09:43.960 further investigation is constitutionally required. The Eighth Amendment requires that 144 00:09:44.000 --> 00:09:47.360 a capital defendant be allowed to present all relevant evidence 145 00:09:47.360 --> 00:09:51.600 in mitigation State Verse Pain one twenty three, two thousand 146 00:09:51.639 --> 00:09:55.080 and eight. See also Ettings versus Oklahoma nineteen eighty two. 147 00:09:56.000 --> 00:09:58.559 Jerry must be allowed to consider all of the capital 148 00:09:58.600 --> 00:10:04.120 defendants mitigating character evidence. In addition, a capital defendant has 149 00:10:04.159 --> 00:10:07.159 a sixth Amendment right to affair trial and effective assistance 150 00:10:07.200 --> 00:10:10.600 a council in both the guilt and penalty phases of 151 00:10:10.679 --> 00:10:14.679 a capital murder trial. The assertion that the council needs 152 00:10:14.679 --> 00:10:18.720 a continuance to conduct an exhaustive and comprehensive dive into 153 00:10:18.759 --> 00:10:22.919 defendant's life history for additional mitigation evidence over states the 154 00:10:23.000 --> 00:10:29.120 extent of his council's constitutional obligations. Council's investigation into mitigation 155 00:10:29.200 --> 00:10:34.440 evidence must be reasonable. The Idaho Supreme Court and the 156 00:10:34.559 --> 00:10:37.840 United States Supreme Court hold that defense council is not 157 00:10:37.919 --> 00:10:41.399 required to investigate a defendant's entire life in order to 158 00:10:41.440 --> 00:10:47.039 present constitutionally sufficient mitigation evidence State Verse Row one point 159 00:10:47.039 --> 00:10:51.360 thirty one, Idaho and Wiggins versus Smith, two thousand and three. 160 00:10:52.559 --> 00:10:55.360 We emphasize that Strickland does not require a council to 161 00:10:55.440 --> 00:10:59.279 investigate every conceivable line of mitigating evidence, no matter how 162 00:10:59.360 --> 00:11:03.279 unlikely the effort would be to assist the defendant at sentencing. 163 00:11:03.919 --> 00:11:07.679 While defendant notes that ABA guidebines for mitigation function of 164 00:11:07.759 --> 00:11:11.120 defense team and death penalty cases urge council in death 165 00:11:11.159 --> 00:11:16.759 penalty cases to conduct an ongoing, exhaustive and independent investigation 166 00:11:16.879 --> 00:11:20.559 of every aspect of the client's character, history, records, and 167 00:11:20.679 --> 00:11:24.840 any circumstances of the offense. To meet their constitutional obligations, 168 00:11:25.200 --> 00:11:28.919 courts look not to what is prudent or appropriate, but 169 00:11:29.120 --> 00:11:34.919 only what is constitutionally compelled. See State verse Dunlap, twenty thirteen, 170 00:11:35.120 --> 00:11:38.919 quoting Burger verse Chemp, nineteen eighty seven, Hall verse State 171 00:11:38.960 --> 00:11:43.759 twenty eleven, rejecting argument that heightened procedural safeguards should be 172 00:11:43.799 --> 00:11:48.720 employed at discovery in capital cases. Roe a capital case 173 00:11:48.759 --> 00:11:52.279 is instructive here on post conviction, Rowe argued her council 174 00:11:52.679 --> 00:11:56.039 was deficient because they failed to perform an adequate investigation 175 00:11:56.360 --> 00:11:59.840 into Roe's background in search of mitigating evidence one thirty 176 00:11:59.840 --> 00:12:04.840 one on Idaho at ten ninety two. Specifically, Rowe argued 177 00:12:05.039 --> 00:12:08.039 counsel should have investigated her life from birth to sentencing, 178 00:12:08.519 --> 00:12:12.159 hearing that council were deficient in presenting her mental health 179 00:12:12.200 --> 00:12:15.919 work up The court rejected this claim, holding that Council 180 00:12:16.039 --> 00:12:19.919 was not required to investigate rose entire life in order 181 00:12:19.960 --> 00:12:25.440 to objectively and reasonably present Rose mitigation evidence. The court 182 00:12:25.519 --> 00:12:29.159 further noted that great lengths Council underwent to investigate and 183 00:12:29.159 --> 00:12:32.960 present mitigating evidence from several of Roe's friends, health and 184 00:12:33.000 --> 00:12:36.919 welfare records, letters from friends and family, and veterans, administration 185 00:12:37.039 --> 00:12:41.080 records concerning Rose, husband's previous injuries, and the couple's relationship. 186 00:12:42.279 --> 00:12:45.919 The investigation Defendant experts have undertaken over the past two 187 00:12:45.919 --> 00:12:49.120 plus years far exceeds that in Row, and in fact 188 00:12:49.159 --> 00:12:53.519 readily applies and appears to satisfy the relevant ABA guidelines 189 00:12:53.759 --> 00:12:58.120 cited by the defendant. It includes, but is not limited to, 190 00:12:58.600 --> 00:13:03.279 defendants kindergarten through PEA VD, education records including coursework, interviews, 191 00:13:03.279 --> 00:13:08.320 and correspondent defendant's mental health and medical records, including redacted 192 00:13:09.120 --> 00:13:13.000 records related to a childhood car accident, defendant's employment records, 193 00:13:13.200 --> 00:13:17.639 mental health, education and employment records of defendant sisters, mental 194 00:13:17.639 --> 00:13:22.080 health records for defendant's parents, fathers, military records, and social 195 00:13:22.159 --> 00:13:26.639 security records. Court records from multiple generations of Coburger's family. 196 00:13:26.919 --> 00:13:31.720 Paternal side VA records and death certificates from maternal and 197 00:13:31.799 --> 00:13:36.559 paternal uncles. Multiple interviews with defendant and each immediate family member. 198 00:13:37.320 --> 00:13:40.960 Interviews of two of defendant's fourth grade teachers, former boxing coach, 199 00:13:41.159 --> 00:13:44.559 and psychologists who evaluated defendant in two thousand and five. 200 00:13:45.799 --> 00:13:49.440 Interviews with multiple members of defendants extended family on maternal 201 00:13:49.440 --> 00:13:53.559 and paternal side, Interviews with defendants professor and advisor at 202 00:13:53.600 --> 00:13:58.960 the Sales University, interview of defendant's former co worker, interviews 203 00:13:58.960 --> 00:14:01.879 of at least one family friend, and letters and jail 204 00:14:01.960 --> 00:14:06.240 calls between defendant and his family. It's evident from the 205 00:14:06.279 --> 00:14:10.200 report of defendant's mitigation expert doctor Orr, doctor Ryan, and 206 00:14:10.320 --> 00:14:14.320 doctor Brahms that they have developed an expansive understanding of 207 00:14:14.360 --> 00:14:19.440 defendant's family environment, social development history, family history both nuclear 208 00:14:19.440 --> 00:14:24.279 and extended over multiple generations, educational history, and mental health 209 00:14:24.279 --> 00:14:28.039 and medical history. From this evidence, these experts have rendered 210 00:14:28.080 --> 00:14:32.240 several current diagnoses and identified other diagnoses for which the 211 00:14:32.279 --> 00:14:36.799 defendant met criteria at some point in his life. Despite 212 00:14:36.840 --> 00:14:41.279 such an extensive investigation, defendant claims additional investigation is warranted 213 00:14:41.600 --> 00:14:47.159 to identify one redacted and two redacted. However, defendant has 214 00:14:47.159 --> 00:14:52.440 not established that such investigation is constitutionally compelled, particularly given 215 00:14:52.480 --> 00:14:56.799 the extensive work already completed. Rather, the claim need is 216 00:14:56.840 --> 00:15:02.080 based on unqualified speculation by redacted. Defendant has not offered 217 00:15:02.120 --> 00:15:06.159 any declaration by any of his disclosed mitigation experts opining 218 00:15:06.200 --> 00:15:09.600 the same, nor has he pointed to anything in their 219 00:15:09.639 --> 00:15:14.519 expert reports that would support redacted speculation. As noted, a 220 00:15:14.559 --> 00:15:17.639 continuance of trial is not warranted to chase down mere 221 00:15:17.679 --> 00:15:23.399 speculation that potential evidence exists Road twenty fourteen at two. Further, 222 00:15:23.559 --> 00:15:27.039 defendant is not set forth a plan for continued investigation, 223 00:15:27.399 --> 00:15:29.840 how much time it will take, what his team expects 224 00:15:29.840 --> 00:15:33.559 the investigation will reveal why it's necessary to uphold his 225 00:15:33.679 --> 00:15:37.320 constitutional rights and why these matters are only now being 226 00:15:37.399 --> 00:15:40.799 raised with the court. Additionally, assuming guilt is found, the 227 00:15:40.840 --> 00:15:43.840 penalty phase of the case will not begin until late 228 00:15:43.879 --> 00:15:48.320 October or early November. Thus, there remains significant time for 229 00:15:48.559 --> 00:15:52.519 redacted enter team to continue their investigation and to supplement 230 00:15:52.720 --> 00:15:57.039 expert disclosures if warranted. All right, We're going to wrap 231 00:15:57.120 --> 00:15:59.039 up right here and to the next episode. We're going 232 00:15:59.120 --> 00:16:01.440 to pick up where we left off. All of the 233 00:16:01.480 --> 00:16:04.759 information that goes with this episode can be found in 234 00:16:04.799 --> 00:16:07.759 the description box. What's up everyone, and welcome back to 235 00:16:07.799 --> 00:16:10.559 the program. In this episode, we're getting right back to 236 00:16:10.679 --> 00:16:15.240 Judge Hipler's order denying Brian Coolberger's motion for a continuance. 237 00:16:16.240 --> 00:16:21.360 One speculation that defendant redacted is simply that speculation built 238 00:16:21.679 --> 00:16:26.840 on circumstantial evidence. Next part, redacted conditions which are currently 239 00:16:26.840 --> 00:16:30.879 attributed to his own mitigation experts to his asd OCD 240 00:16:31.240 --> 00:16:35.840 and or ADHD are consistent with childhood trauma. And five, 241 00:16:36.159 --> 00:16:40.919 there is evidence of poverty, both generational and familial according 242 00:16:40.960 --> 00:16:45.720 to redacted. Notably missing from Redacted's declaration is an indication 243 00:16:46.159 --> 00:16:49.440 as to how she intends to confirm her suspicions or 244 00:16:49.480 --> 00:16:53.080 how long she expects it to take, be that months, years, 245 00:16:53.320 --> 00:16:57.240 or even decades. Defendant has been subjected to multiple lengthy 246 00:16:57.279 --> 00:17:01.080 interviews by several different experts over the past two years. 247 00:17:01.120 --> 00:17:04.559 Based on the expert reports reviewed by the court, Redacted's 248 00:17:04.559 --> 00:17:09.039 defendant's family has likewise been extensively interviewed, and there has 249 00:17:09.240 --> 00:17:13.880 been redacted and no report of that redacted. None of 250 00:17:13.880 --> 00:17:18.599 defendants redacted have raised the alarm that redacted, despite having 251 00:17:18.599 --> 00:17:22.880 the same information redacted relies upon. Next section completely redacted 252 00:17:23.519 --> 00:17:28.160 instead it's an invitation for a perpetual continuance. More importantly, 253 00:17:28.200 --> 00:17:31.279 aside from the redacted, all of this information has been 254 00:17:31.279 --> 00:17:34.720 available and documented in the record for months. Yet again, 255 00:17:34.759 --> 00:17:37.880 the defendant is now only moving for a continuance for 256 00:17:37.960 --> 00:17:44.480 further investigation into redacted unsupported suspicion smacks of tactical gamesmanship 257 00:17:44.519 --> 00:17:49.839 and delay. Absent more compelling evidence that Redacted redacted on 258 00:17:50.000 --> 00:17:53.000 covering it and a reasonable timeline to do so, there 259 00:17:53.039 --> 00:17:57.920 is no constitutional basis for further investigation, particularly on an 260 00:17:57.920 --> 00:18:00.440 open ended basis with no plan to bring the matter 261 00:18:00.519 --> 00:18:05.359 home two. Redacted Council's argument that more time is needed 262 00:18:05.400 --> 00:18:11.920 to investigate whether Redacted likewise squarely unsupported Redacted. Defendant has 263 00:18:11.960 --> 00:18:15.039 never moved for an extension to his disclosure deadline for 264 00:18:15.119 --> 00:18:18.480 penalty phase experts so as to follow further opinions in 265 00:18:18.519 --> 00:18:23.200 this regard. Nevertheless, Redacted, who again is not even marginally 266 00:18:23.279 --> 00:18:27.279 qualified to opine redacted, believes that there is evidence that 267 00:18:27.400 --> 00:18:31.160 redacted and seeks additional time to unearth it her support, 268 00:18:31.240 --> 00:18:34.400 which has not been provided to the court. Redacted, again, 269 00:18:34.519 --> 00:18:37.480 not one of defendant's redacted experts who have had the 270 00:18:37.480 --> 00:18:42.200 same information has identified has submitted a declaration stating that 271 00:18:42.279 --> 00:18:48.480 they may change their diagnosis based on further investigation Redacted. Rather, 272 00:18:48.680 --> 00:18:53.440 it's based on redacted speculation that further investigation might change Redacted. 273 00:18:54.720 --> 00:18:58.200 Such speculation is not grounds for a continuance next section 274 00:18:58.440 --> 00:19:02.319 completely redacted. Not only is their lack of support in 275 00:19:02.400 --> 00:19:06.759 the record for Redacted's anticipation that more investigation into redacted 276 00:19:07.079 --> 00:19:10.960 to change their minds, and Redacted, her team and Defense 277 00:19:11.000 --> 00:19:15.079 Council have known since November of twenty twenty four that Redacted. 278 00:19:16.000 --> 00:19:19.920 Neither the defense team nor Redacted have articulated what efforts 279 00:19:19.960 --> 00:19:22.839 they have made, if any, since the time to understand 280 00:19:22.839 --> 00:19:26.720 the basis of redacted. Further, they have not indicated what 281 00:19:26.759 --> 00:19:29.759 the plan they have to obtain this information, if a 282 00:19:29.799 --> 00:19:33.319 continuance is granted, or how long it will take. Redacted 283 00:19:34.240 --> 00:19:37.400 in some defendant is not demonstrated that a continuance for 284 00:19:37.440 --> 00:19:42.079 further investigation into potential mitigation evidence is necessary to uphold 285 00:19:42.079 --> 00:19:46.119 his constitutional rights. The right to present mitigation evidence and 286 00:19:46.160 --> 00:19:49.279 the right to effective assistance of counsel do not necessitate 287 00:19:49.319 --> 00:19:53.680 an investigation of his entire history. They simply require that 288 00:19:53.720 --> 00:19:58.720 the investigation be reasonable while easily available mitigation evidence cannot 289 00:19:58.720 --> 00:20:02.799 be ignored. Defendants demonstrates that the evidence they are attempted 290 00:20:02.839 --> 00:20:06.400 to obtain is far from easily available, and in fact 291 00:20:06.640 --> 00:20:09.400 may not even exist don Lap one fifty five at 292 00:20:09.400 --> 00:20:12.920 forty four. Further, the evidence prompting the need for further 293 00:20:12.960 --> 00:20:17.680 investigation has redacted been available for months, yet it only 294 00:20:17.759 --> 00:20:21.599 now that the defendant seeks a continuance. This tactic seems 295 00:20:21.640 --> 00:20:25.079 geared toward achieving delay rather than a good faith effort 296 00:20:25.079 --> 00:20:30.079 to obtain meaningful mitigation evidence. Moreover, defendant provides absolutely no 297 00:20:30.200 --> 00:20:34.279 plan for how further investigation will proceed, who will be interviewed, 298 00:20:34.599 --> 00:20:38.240 or how long it will take. The Constitution does not demand, 299 00:20:38.920 --> 00:20:41.319 and this court is not willing to continue the trial 300 00:20:41.319 --> 00:20:44.720 indefinitely to allow the defense team to embark on a 301 00:20:44.759 --> 00:20:50.039 phishing expedition pulling at every conceivable thread in defendant's familial tapestry. 302 00:20:51.000 --> 00:20:54.119 Counsel's assertion that they will be better prepared with more 303 00:20:54.160 --> 00:20:57.519 time and more evidence is an assertion shared by every 304 00:20:57.599 --> 00:21:02.119 lawyer involved in a trial. At some point, and particularly 305 00:21:02.400 --> 00:21:06.400 after two and one half years of investigation, the defense 306 00:21:06.440 --> 00:21:09.240 team must be satisfied with what they have, which in 307 00:21:09.279 --> 00:21:13.359 this case is extensive. In addition, while the crime victim's 308 00:21:13.440 --> 00:21:17.039 rites to a timely disposition under Article I, Section twenty 309 00:21:17.039 --> 00:21:21.400 two of the Idaho Constitution and IC Section nineteen fifty 310 00:21:21.440 --> 00:21:26.000 three oh six do not trump a defendant's federal constitutional rights, 311 00:21:26.279 --> 00:21:29.559 they provide an additional justification for a proceeding with trial 312 00:21:29.759 --> 00:21:33.880 as scheduled. For these reasons, a continuance is not warranted 313 00:21:34.519 --> 00:21:38.480 See a continuance is not warranted due to pre trial publicity. 314 00:21:39.279 --> 00:21:42.880 Defendant next seeks a continuance due to recent inflammatory pre 315 00:21:42.920 --> 00:21:48.000 trial publicity. On May ninth, twenty twenty five, approximately three 316 00:21:48.000 --> 00:21:51.240 months before a trial is said to begin, Dayline NBC 317 00:21:51.759 --> 00:21:55.680 aired a two hour episode about the case. The episode 318 00:21:55.680 --> 00:21:58.880 included details and materials about the case which, if true, 319 00:21:59.119 --> 00:22:02.400 were not publicly available and which promote a narrative of 320 00:22:02.440 --> 00:22:06.759 guilt defendant who advises that On July ninth, twenty twenty five, 321 00:22:07.079 --> 00:22:09.920 Amazon Prime Video is planning to release a four part 322 00:22:10.160 --> 00:22:13.759 docu series about the homicides, and on July fourteenth, twenty 323 00:22:13.799 --> 00:22:17.039 twenty five, crime author James Patterson is set to release 324 00:22:17.039 --> 00:22:20.680 a book he wrote about the same defendant contends that 325 00:22:20.720 --> 00:22:23.799 this media coverage so close to trial threatens his right 326 00:22:23.839 --> 00:22:26.559 to a fair trial by an impartial jury, which can 327 00:22:26.640 --> 00:22:30.839 only be fixed by a continuance. In addition, defendant argues 328 00:22:30.839 --> 00:22:33.960 that a continuance is necessary to investigate the source of 329 00:22:34.000 --> 00:22:37.680 the leaks to the media and impose accountability. The Court 330 00:22:37.720 --> 00:22:41.920 does not agree that either argument compels a continuance. One 331 00:22:42.039 --> 00:22:44.599 defendant's right to a fair trial is not denied by 332 00:22:44.640 --> 00:22:47.559 the pre trial publicity, which is not likely to subside 333 00:22:47.559 --> 00:22:51.680 with time. The sixth Amendment to the US Constitution affords 334 00:22:51.720 --> 00:22:54.880 all criminal defendants the fundamental right to a fair trial 335 00:22:55.200 --> 00:22:59.720 Strickland versus Washington, nineteen eighty four. This includes the right 336 00:22:59.759 --> 00:23:02.319 to have an impartial jury who knows as little as 337 00:23:02.359 --> 00:23:05.559 possible of the case decide the defendants guilt based on 338 00:23:05.599 --> 00:23:09.240 material admitted into evidence before them. In a court proceeding 339 00:23:09.759 --> 00:23:14.000 on influence by extra judicial statements Genteel verse State Bar 340 00:23:14.039 --> 00:23:18.200 of Nevada, nineteen ninety one. A trial judge has affirmative 341 00:23:18.279 --> 00:23:22.880 duty to minimize the effects of pre trial publicity Shepherd vers. Maxwell, 342 00:23:23.119 --> 00:23:26.400 nineteen sixty six. In Shepherd, which is relied upon by 343 00:23:26.400 --> 00:23:30.599 the defendant, the United States Supreme Court recognized the adverse 344 00:23:30.640 --> 00:23:34.720 effect inflammatory publicity has on the ability to obtain an 345 00:23:34.759 --> 00:23:38.279 impartial jury, and strongly urged trial courts to act quickly 346 00:23:38.559 --> 00:23:42.279 and forcefully in addressing such publicity three eighty four US 347 00:23:42.279 --> 00:23:46.240 at three thirty five, three sixty one. The Court further 348 00:23:46.319 --> 00:23:50.160 advised that where there is reasonable likelihood that prejudicial news 349 00:23:50.359 --> 00:23:53.119 prior to trial will prevent a fair trial, the judge 350 00:23:53.119 --> 00:23:56.039 should continue the case until the threat of bates or 351 00:23:56.599 --> 00:24:00.759 transfer it to another county not so permeated with publicity 352 00:24:01.039 --> 00:24:05.359 idea three sixty three. This statement from Shepherd, however, must 353 00:24:05.359 --> 00:24:08.039 be read in context. The media coverage in the case 354 00:24:08.119 --> 00:24:11.640 is far different from that present here. In Shepherd, news 355 00:24:11.680 --> 00:24:14.960 reporters extensively covered the story of Sam Shepherd, who was 356 00:24:15.000 --> 00:24:18.759 accused of bludgeoning his pregnant wife to death. The court 357 00:24:18.799 --> 00:24:23.359 examined the extensive media fanfare surrounding the case, noting Shepherd 358 00:24:23.440 --> 00:24:25.960 was not granted a change of venue to a locale 359 00:24:26.000 --> 00:24:29.480 away from where the publicity originated, nor was his jury 360 00:24:29.519 --> 00:24:33.279 sequestered for months. The viral and publicity about Shepherd and 361 00:24:33.359 --> 00:24:37.519 the murder had made the case notorious. Charges and counter 362 00:24:37.640 --> 00:24:40.200 charges were aired in the news media beside those for 363 00:24:40.279 --> 00:24:44.119 which Shepherd was called to trial. In addition, only three 364 00:24:44.119 --> 00:24:47.319 months before trial, Shepherd was examined for more than five 365 00:24:47.359 --> 00:24:50.759 hours without counsel during a three day inquest which ended 366 00:24:50.799 --> 00:24:54.319 in a public brawl. The inquest was televised live from 367 00:24:54.319 --> 00:24:58.039 a high school gymnasium, seating hundreds of people. Furthermore, the 368 00:24:58.119 --> 00:25:02.039 trial began two weeks before a hotly contested election at 369 00:25:02.079 --> 00:25:06.240 which both chief Prosecutor Mahone and Judge Blythin were candidates 370 00:25:06.240 --> 00:25:08.759 for judge ships. The court found that there was no 371 00:25:08.839 --> 00:25:12.240 doubt that this deluge of publicity reached at least some 372 00:25:12.279 --> 00:25:14.799 of the jury, given that when the jury was questioned 373 00:25:14.799 --> 00:25:17.599 for the only time, two jurors admitted in open court 374 00:25:17.920 --> 00:25:21.079 to hearing the highly inflammatory charge that a prison inmate 375 00:25:21.119 --> 00:25:25.799 claimed Shepherd was the father of her illegitimate child. Nevertheless, 376 00:25:26.200 --> 00:25:29.599 the trial judge rejected requests by defense counsel for the 377 00:25:29.680 --> 00:25:32.160 jurors to be asked whether they had rhere or heard 378 00:25:32.200 --> 00:25:36.839 specific prejudicial comments about the case. Further the jurors were 379 00:25:36.839 --> 00:25:40.920 subjected to newspaper, radio, and television coverage of the trial 380 00:25:41.160 --> 00:25:43.720 while not taking part in the proceedings, and were allowed 381 00:25:43.759 --> 00:25:46.680 to go their separate ways outside of the courtroom without 382 00:25:46.720 --> 00:25:50.559 adequate directions not to read or listen to anything concerning 383 00:25:50.599 --> 00:25:54.559 the case. The judge gave suggestions and request of the 384 00:25:54.640 --> 00:25:58.359 jurors at intervals during the trial to refrain from commenting 385 00:25:58.440 --> 00:26:01.599 upon the case, but the jurors were thrust into the 386 00:26:01.680 --> 00:26:04.880 role of celebrities by the judge's failure to insulate them 387 00:26:04.920 --> 00:26:09.119 from the reporters and photographers. Bedlam reigned at the courthouse 388 00:26:09.359 --> 00:26:13.000 during the trial, and newsmen took over practically the entire 389 00:26:13.039 --> 00:26:18.119 court room. The court reverse Shepherd's murdered conviction. Crucially, the 390 00:26:18.160 --> 00:26:21.680 court stated that although the pre trial publicity alone was 391 00:26:21.720 --> 00:26:24.759 not sufficient to warrant relief, when combined with the carnival 392 00:26:24.839 --> 00:26:28.440 atmosphere the press created at trial, and the judges in 393 00:26:28.519 --> 00:26:31.759 ability or lack of desire to control the courtroom proceedings, 394 00:26:32.319 --> 00:26:36.079 Shepherd's right to a fair trial was denied three eighty 395 00:26:36.079 --> 00:26:42.200 four US and Nebraska Association versus. Stuart, nineteen seventy six. 396 00:26:43.359 --> 00:26:47.599 Pre trial publicity, even pervasive adverse publicity, does not inevitably 397 00:26:47.759 --> 00:26:51.720 lead to an unfair trial Skilling versus US twenty ten. 398 00:26:53.359 --> 00:26:56.240 If months of violent pre trial media coverage was not 399 00:26:56.400 --> 00:26:59.559 enough to deny due process in Shepherd, it is certainly 400 00:26:59.559 --> 00:27:02.119 not enough in this case. Where the media coverage has 401 00:27:02.160 --> 00:27:05.920