Speaker 1: What's up everyone, and welcome back to the program. Judge
Speaker 1: Hipler recently shot down Brian Colberger's motion for a continuance,
Speaker 1: and in this episode, we're going to take a look
Speaker 1: at that order as we begin to ramp up our
Speaker 1: coverage of the Brian Colberger trial. Case number CR zero
Speaker 1: one DASH twenty four DASH three one sixty sixty five
Speaker 1: redacted memorandum Decision and order on Defendant's motion to continue
Speaker 1: State of Idaho Plaintiff first, Brian C. Coberger. The defendant
Speaker 1: introduction before the court is defendant's motion to continue the
Speaker 1: trial in this matter. The basis for the motion is threefold. First,
Speaker 1: he asserts that the volume of discovery continues to pose
Speaker 1: a challenge to his counsel's ability to timely and meaningfully
Speaker 1: review all of it. Second, he asserts that there is
Speaker 1: penalty phase investigation and preparation that still needs to be done. Third,
Speaker 1: he asserts that recent and forthcoming publicity on the case
Speaker 1: is highly prejudicial. Maintaining the current trial setting under these circumstances,
Speaker 1: he argues, will render any conviction and sentence unconstitutional. The
Speaker 1: State responds that defendant's motion is untimely and that he's
Speaker 1: failed to show either good cause for continuing the trial
Speaker 1: or prejudice that would result from maintaining the current trial setting.
Speaker 1: Oral argument on the motion was held on June eighteenth,
Speaker 1: twenty twenty five, after which the Court took the matter
Speaker 1: under advisement. The court finds a continuance is not warranted
Speaker 1: as defendant has not made a showing that there is
Speaker 1: good cause to continue the trial or that his substantial
Speaker 1: rights will be prejudiced by proceeding to trial is scheduled standard,
Speaker 1: a motion for continuance of trial is addressed to the
Speaker 1: sound discretion of the trial court State Versuchoa one sixty nine, Idaho,
Speaker 1: twenty twenty two. On discretionary matters, the trial court must
Speaker 1: one correctly perceive the issue as one of discretion to
Speaker 1: act with in the outer boundaries of its discretion, three
Speaker 1: consistently with the legal standards applicable to the specific choice
Speaker 1: available to it, and four reached its decision by the
Speaker 1: exercise of reason Lundberg vers My Fun Life, twenty eighteen. Analysis.
Speaker 1: Under Idaho law, a criminal defendant seeking a continuance of
Speaker 1: a trial must demonstrate that his or her substantial rights
Speaker 1: will be prejudiced absent a continuance State vs. Kegel one
Speaker 1: twenty six, nineteen ninety five. Unless an appellant shows that
Speaker 1: his or her substantial rights have been prejudiced by reason
Speaker 1: of a denial of his or her emotion for continuance,
Speaker 1: appellate courts can only conclude that there was no abuse
Speaker 1: of discretion. Trial judges necessarily require a great deal of
Speaker 1: latitude in scheduling trials, the burden of assembling the witnesses, lawyers,
Speaker 1: and jurors at the place in time for trial counsels
Speaker 1: against continuances. Except for the most compelling reasons, there are
Speaker 1: no mechountical tests for deciding when a denial of a
Speaker 1: continuance is so arbitrary as to violate due process. The
Speaker 1: answer must be found in the circumstances present in every case,
Speaker 1: particularly in the reasons presented to the trial judge at
Speaker 1: the time the request is denied. Matter of one one
Speaker 1: seventy Idaho, nineteen sixty four. Where a continuance is sought
Speaker 1: based on the late disclosure or discovery of evidence, the
Speaker 1: alleged tardiness of the discovery must be shown to sole
Speaker 1: prejudice the defendant's case. Preparation that a fair trial will
Speaker 1: be denied State Verse tap Yo one twenty seven, Idaho
Speaker 1: nineteen ninety five. The bare claim that additional investigation could
Speaker 1: have been conducted is not sufficient to demonstrate on fair
Speaker 1: prejudice so as to support a motion for a continuance. Additionally,
Speaker 1: where a continuance is sought for the potential receipt of
Speaker 1: evidence from further investigation, the motion is properly denied if
Speaker 1: based on speculation. Row versu Katovich, California, August twenty six,
Speaker 1: twenty fourteen. Defendant argues the continuance is necessary for him
Speaker 1: to sufficiently review relevant discovery, conduct a full and complete
Speaker 1: investigation of mitigation evidence, particularly claim newly revealed evidence that
Speaker 1: allegedly raise red flags, and remedy the prejudice caused by
Speaker 1: recent and upcoming inflammatory publicity and the alleged leak of
Speaker 1: information to the media. Moving forward with the trial, he warns,
Speaker 1: will violate his rights under the United States and Idaho
Speaker 1: Constitution a due process to be free from cruel and
Speaker 1: unusual punishment, to a fair trial, to effective assistance of counsel,
Speaker 1: to present a defense and confront witnesses, and to affair
Speaker 1: and reliable sentencing determination absent from defendant's materials. However, is
Speaker 1: any good cause for the continuance or legitimate showing of
Speaker 1: prejudice should the trial proceed as scheduled. A defendant has
Speaker 1: not demonstrated a continuance of warranted to review discovery. Defendant
Speaker 1: first contends that the vast amount of discovery in the
Speaker 1: case renders it impossible for the defense team to review
Speaker 1: the necessary and relevant discovery in a manner that allows
Speaker 1: for it to comprehensively integrate it into his defense. He
Speaker 1: further argues, without any support or explanation, that there are
Speaker 1: a myriad of reasons that continue to arise from the
Speaker 1: state failing to comply with discovery and expert disclosure deadlines,
Speaker 1: a continuance, he argues, as necessary for a council to
Speaker 1: mount an effective defense. The court, however, rejected this same
Speaker 1: argument two months ago when defendants sought to strike the
Speaker 1: death penalty and impose discovery obligations upon the state. In
Speaker 1: its order, the court observed the utter lack of any
Speaker 1: proof supporting defendant's accusations of discovery violations by the state.
Speaker 1: More importantly, the court found defendant's complaints of being unable
Speaker 1: to meaningfully review discovery entirely unconvincing, pointing out that Council
Speaker 1: struggled to articulate in any meaningful way what evidence, let
Speaker 1: alone relevant evidence, counsel had been unable to review over
Speaker 1: the past two plus years, and why efforts to facilitate
Speaker 1: discovery review were not made long ago through this court
Speaker 1: and the resource. Judge defend in second round to this
Speaker 1: argument fares no better. He again fails to identify the
Speaker 1: relevant discovery that his council has yet to review. He
Speaker 1: also fails to identify any steps his council has taken,
Speaker 1: particularly since the court's prior order to aid and processing
Speaker 1: the yet unreviewed discovery. Moreover, he does not explain why
Speaker 1: he waited to seek a continuance until after discovery closed,
Speaker 1: expert disclosure deadlines passed, and the pre trial conference occurred.
Speaker 1: If defense counsel was truly struggling with discovery review, this
Speaker 1: motion should have been made when the claim problem became apparent,
Speaker 1: and certainly should have been brought prior to the expiration
Speaker 1: of discovery, all expert deadlines, and the final pre trial conference. Instead,
Speaker 1: defense counsel has robustly litigated the case, retaining approximately two
Speaker 1: dozen experts and a full mitigation team, engaging in extensive
Speaker 1: motion practice, and disclosing witness and exhibit lists with nearia
Speaker 1: whisper that a continuance would be sought. These actions belie
Speaker 1: as Counsel's ongoing and ultimately empty discovery complaints. Without more,
Speaker 1: the court can only conclude that the Defense Council is
Speaker 1: using the volume of discovery measured in terabytes as a
Speaker 1: tactic to delay the preceding at the eleventh hours, simply
Speaker 1: for the sake of delay, rather than a legitimate threat
Speaker 1: of prejudice to defendants substantial rights. Perhaps even more problematic
Speaker 1: and more telling is the utter failure of the Defense
Speaker 1: Council now or at any time, to specify not only
Speaker 1: what needs to be reviewed, but importantly when that review
Speaker 1: would be complete and defendant ready for trial. Instead, defendant
Speaker 1: seeks and on bounded continuance with no apparent plan to
Speaker 1: complete the review of unspecified evidence that Council claims it
Speaker 1: has yet to review. This is not sufficient to warrant
Speaker 1: a continuance b Defendant is not established a continuance is
Speaker 1: necessary to conduct a more thorough life history investigation and
Speaker 1: identify necessary experts. Defendant next argues he needs additional time
Speaker 1: to investigate and prepare mitigation evidence, which he contends is
Speaker 1: necessary to uphold his constitutional rights, particularly those under the
Speaker 1: Eighth and six Amendments. Specifically, the defense team claims that
Speaker 1: to be effective, counsel must conduct an exhaustive and comprehensive
Speaker 1: dive into defendants life history for additional mitigation evidence, analyze
Speaker 1: the information into a cohesive narrative for the jury, and
Speaker 1: identify any additional behavioral, cultural, scientific, and or mental health
Speaker 1: experts that may be necessary Mary to develop the mitigation presentation.
Speaker 1: Despite having hired a mitigation team two years ago, defense
Speaker 1: counsel contends that recently discovered redacted have raised red flags
Speaker 1: that defendant may have redacted. According to defendant's primary mitigation investigator,
Speaker 1: Attorney redacted, her team of four have been diligent in
Speaker 1: their investigation into defendant's life history, but there have been redacted.
Speaker 1: She believes that with time, she will be able to
Speaker 1: overcome these barriers. By redacted XPARTE declaration, May twentieth, twenty
Speaker 1: twenty five, Defendant has not demonstrated a continuance to accommodate
Speaker 1: further investigation is constitutionally required. The Eighth Amendment requires that
Speaker 1: a capital defendant be allowed to present all relevant evidence
Speaker 1: in mitigation State Verse Pain one twenty three, two thousand
Speaker 1: and eight. See also Ettings versus Oklahoma nineteen eighty two.
Speaker 1: Jerry must be allowed to consider all of the capital
Speaker 1: defendants mitigating character evidence. In addition, a capital defendant has
Speaker 1: a sixth Amendment right to affair trial and effective assistance
Speaker 1: a council in both the guilt and penalty phases of
Speaker 1: a capital murder trial. The assertion that the council needs
Speaker 1: a continuance to conduct an exhaustive and comprehensive dive into
Speaker 1: defendant's life history for additional mitigation evidence over states the
Speaker 1: extent of his council's constitutional obligations. Council's investigation into mitigation
Speaker 1: evidence must be reasonable. The Idaho Supreme Court and the
Speaker 1: United States Supreme Court hold that defense council is not
Speaker 1: required to investigate a defendant's entire life in order to
Speaker 1: present constitutionally sufficient mitigation evidence State Verse Row one point
Speaker 1: thirty one, Idaho and Wiggins versus Smith, two thousand and three.
Speaker 1: We emphasize that Strickland does not require a council to
Speaker 1: investigate every conceivable line of mitigating evidence, no matter how
Speaker 1: unlikely the effort would be to assist the defendant at sentencing.
Speaker 1: While defendant notes that ABA guidebines for mitigation function of
Speaker 1: defense team and death penalty cases urge council in death
Speaker 1: penalty cases to conduct an ongoing, exhaustive and independent investigation
Speaker 1: of every aspect of the client's character, history, records, and
Speaker 1: any circumstances of the offense. To meet their constitutional obligations,
Speaker 1: courts look not to what is prudent or appropriate, but
Speaker 1: only what is constitutionally compelled. See State verse Dunlap, twenty thirteen,
Speaker 1: quoting Burger verse Chemp, nineteen eighty seven, Hall verse State
Speaker 1: twenty eleven, rejecting argument that heightened procedural safeguards should be
Speaker 1: employed at discovery in capital cases. Roe a capital case
Speaker 1: is instructive here on post conviction, Rowe argued her council
Speaker 1: was deficient because they failed to perform an adequate investigation
Speaker 1: into Roe's background in search of mitigating evidence one thirty
Speaker 1: one on Idaho at ten ninety two. Specifically, Rowe argued
Speaker 1: counsel should have investigated her life from birth to sentencing,
Speaker 1: hearing that council were deficient in presenting her mental health
Speaker 1: work up The court rejected this claim, holding that Council
Speaker 1: was not required to investigate rose entire life in order
Speaker 1: to objectively and reasonably present Rose mitigation evidence. The court
Speaker 1: further noted that great lengths Council underwent to investigate and
Speaker 1: present mitigating evidence from several of Roe's friends, health and
Speaker 1: welfare records, letters from friends and family, and veterans, administration
Speaker 1: records concerning Rose, husband's previous injuries, and the couple's relationship.
Speaker 1: The investigation Defendant experts have undertaken over the past two
Speaker 1: plus years far exceeds that in Row, and in fact
Speaker 1: readily applies and appears to satisfy the relevant ABA guidelines
Speaker 1: cited by the defendant. It includes, but is not limited to,
Speaker 1: defendants kindergarten through PEA VD, education records including coursework, interviews,
Speaker 1: and correspondent defendant's mental health and medical records, including redacted
Speaker 1: records related to a childhood car accident, defendant's employment records,
Speaker 1: mental health, education and employment records of defendant sisters, mental
Speaker 1: health records for defendant's parents, fathers, military records, and social
Speaker 1: security records. Court records from multiple generations of Coburger's family.
Speaker 1: Paternal side VA records and death certificates from maternal and
Speaker 1: paternal uncles. Multiple interviews with defendant and each immediate family member.
Speaker 1: Interviews of two of defendant's fourth grade teachers, former boxing coach,
Speaker 1: and psychologists who evaluated defendant in two thousand and five.
Speaker 1: Interviews with multiple members of defendants extended family on maternal
Speaker 1: and paternal side, Interviews with defendants professor and advisor at
Speaker 1: the Sales University, interview of defendant's former co worker, interviews
Speaker 1: of at least one family friend, and letters and jail
Speaker 1: calls between defendant and his family. It's evident from the
Speaker 1: report of defendant's mitigation expert doctor Orr, doctor Ryan, and
Speaker 1: doctor Brahms that they have developed an expansive understanding of
Speaker 1: defendant's family environment, social development history, family history both nuclear
Speaker 1: and extended over multiple generations, educational history, and mental health
Speaker 1: and medical history. From this evidence, these experts have rendered
Speaker 1: several current diagnoses and identified other diagnoses for which the
Speaker 1: defendant met criteria at some point in his life. Despite
Speaker 1: such an extensive investigation, defendant claims additional investigation is warranted
Speaker 1: to identify one redacted and two redacted. However, defendant has
Speaker 1: not established that such investigation is constitutionally compelled, particularly given
Speaker 1: the extensive work already completed. Rather, the claim need is
Speaker 1: based on unqualified speculation by redacted. Defendant has not offered
Speaker 1: any declaration by any of his disclosed mitigation experts opining
Speaker 1: the same, nor has he pointed to anything in their
Speaker 1: expert reports that would support redacted speculation. As noted, a
Speaker 1: continuance of trial is not warranted to chase down mere
Speaker 1: speculation that potential evidence exists Road twenty fourteen at two. Further,
Speaker 1: defendant is not set forth a plan for continued investigation,
Speaker 1: how much time it will take, what his team expects
Speaker 1: the investigation will reveal why it's necessary to uphold his
Speaker 1: constitutional rights and why these matters are only now being
Speaker 1: raised with the court. Additionally, assuming guilt is found, the
Speaker 1: penalty phase of the case will not begin until late
Speaker 1: October or early November. Thus, there remains significant time for
Speaker 1: redacted enter team to continue their investigation and to supplement
Speaker 1: expert disclosures if warranted. All right, We're going to wrap
Speaker 1: up right here and to the next episode. We're going
Speaker 1: to pick up where we left off. All of the
Speaker 1: information that goes with this episode can be found in
Speaker 1: the description box. What's up everyone, and welcome back to
Speaker 1: the program. In this episode, we're getting right back to
Speaker 1: Judge Hipler's order denying Brian Coolberger's motion for a continuance.
Speaker 1: One speculation that defendant redacted is simply that speculation built
Speaker 1: on circumstantial evidence. Next part, redacted conditions which are currently
Speaker 1: attributed to his own mitigation experts to his asd OCD
Speaker 1: and or ADHD are consistent with childhood trauma. And five,
Speaker 1: there is evidence of poverty, both generational and familial according
Speaker 1: to redacted. Notably missing from Redacted's declaration is an indication
Speaker 1: as to how she intends to confirm her suspicions or
Speaker 1: how long she expects it to take, be that months, years,
Speaker 1: or even decades. Defendant has been subjected to multiple lengthy
Speaker 1: interviews by several different experts over the past two years.
Speaker 1: Based on the expert reports reviewed by the court, Redacted's
Speaker 1: defendant's family has likewise been extensively interviewed, and there has
Speaker 1: been redacted and no report of that redacted. None of
Speaker 1: defendants redacted have raised the alarm that redacted, despite having
Speaker 1: the same information redacted relies upon. Next section completely redacted
Speaker 1: instead it's an invitation for a perpetual continuance. More importantly,
Speaker 1: aside from the redacted, all of this information has been
Speaker 1: available and documented in the record for months. Yet again,
Speaker 1: the defendant is now only moving for a continuance for
Speaker 1: further investigation into redacted unsupported suspicion smacks of tactical gamesmanship
Speaker 1: and delay. Absent more compelling evidence that Redacted redacted on
Speaker 1: covering it and a reasonable timeline to do so, there
Speaker 1: is no constitutional basis for further investigation, particularly on an
Speaker 1: open ended basis with no plan to bring the matter
Speaker 1: home two. Redacted Council's argument that more time is needed
Speaker 1: to investigate whether Redacted likewise squarely unsupported Redacted. Defendant has
Speaker 1: never moved for an extension to his disclosure deadline for
Speaker 1: penalty phase experts so as to follow further opinions in
Speaker 1: this regard. Nevertheless, Redacted, who again is not even marginally
Speaker 1: qualified to opine redacted, believes that there is evidence that
Speaker 1: redacted and seeks additional time to unearth it her support,
Speaker 1: which has not been provided to the court. Redacted, again,
Speaker 1: not one of defendant's redacted experts who have had the
Speaker 1: same information has identified has submitted a declaration stating that
Speaker 1: they may change their diagnosis based on further investigation Redacted. Rather,
Speaker 1: it's based on redacted speculation that further investigation might change Redacted.
Speaker 1: Such speculation is not grounds for a continuance next section
Speaker 1: completely redacted. Not only is their lack of support in
Speaker 1: the record for Redacted's anticipation that more investigation into redacted
Speaker 1: to change their minds, and Redacted, her team and Defense
Speaker 1: Council have known since November of twenty twenty four that Redacted.
Speaker 1: Neither the defense team nor Redacted have articulated what efforts
Speaker 1: they have made, if any, since the time to understand
Speaker 1: the basis of redacted. Further, they have not indicated what
Speaker 1: the plan they have to obtain this information, if a
Speaker 1: continuance is granted, or how long it will take. Redacted
Speaker 1: in some defendant is not demonstrated that a continuance for
Speaker 1: further investigation into potential mitigation evidence is necessary to uphold
Speaker 1: his constitutional rights. The right to present mitigation evidence and
Speaker 1: the right to effective assistance of counsel do not necessitate
Speaker 1: an investigation of his entire history. They simply require that
Speaker 1: the investigation be reasonable while easily available mitigation evidence cannot
Speaker 1: be ignored. Defendants demonstrates that the evidence they are attempted
Speaker 1: to obtain is far from easily available, and in fact
Speaker 1: may not even exist don Lap one fifty five at
Speaker 1: forty four. Further, the evidence prompting the need for further
Speaker 1: investigation has redacted been available for months, yet it only
Speaker 1: now that the defendant seeks a continuance. This tactic seems
Speaker 1: geared toward achieving delay rather than a good faith effort
Speaker 1: to obtain meaningful mitigation evidence. Moreover, defendant provides absolutely no
Speaker 1: plan for how further investigation will proceed, who will be interviewed,
Speaker 1: or how long it will take. The Constitution does not demand,
Speaker 1: and this court is not willing to continue the trial
Speaker 1: indefinitely to allow the defense team to embark on a
Speaker 1: phishing expedition pulling at every conceivable thread in defendant's familial tapestry.
Speaker 1: Counsel's assertion that they will be better prepared with more
Speaker 1: time and more evidence is an assertion shared by every
Speaker 1: lawyer involved in a trial. At some point, and particularly
Speaker 1: after two and one half years of investigation, the defense
Speaker 1: team must be satisfied with what they have, which in
Speaker 1: this case is extensive. In addition, while the crime victim's
Speaker 1: rites to a timely disposition under Article I, Section twenty
Speaker 1: two of the Idaho Constitution and IC Section nineteen fifty
Speaker 1: three oh six do not trump a defendant's federal constitutional rights,
Speaker 1: they provide an additional justification for a proceeding with trial
Speaker 1: as scheduled. For these reasons, a continuance is not warranted
Speaker 1: See a continuance is not warranted due to pre trial publicity.
Speaker 1: Defendant next seeks a continuance due to recent inflammatory pre
Speaker 1: trial publicity. On May ninth, twenty twenty five, approximately three
Speaker 1: months before a trial is said to begin, Dayline NBC
Speaker 1: aired a two hour episode about the case. The episode
Speaker 1: included details and materials about the case which, if true,
Speaker 1: were not publicly available and which promote a narrative of
Speaker 1: guilt defendant who advises that On July ninth, twenty twenty five,
Speaker 1: Amazon Prime Video is planning to release a four part
Speaker 1: docu series about the homicides, and on July fourteenth, twenty
Speaker 1: twenty five, crime author James Patterson is set to release
Speaker 1: a book he wrote about the same defendant contends that
Speaker 1: this media coverage so close to trial threatens his right
Speaker 1: to a fair trial by an impartial jury, which can
Speaker 1: only be fixed by a continuance. In addition, defendant argues
Speaker 1: that a continuance is necessary to investigate the source of
Speaker 1: the leaks to the media and impose accountability. The Court
Speaker 1: does not agree that either argument compels a continuance. One
Speaker 1: defendant's right to a fair trial is not denied by
Speaker 1: the pre trial publicity, which is not likely to subside
Speaker 1: with time. The sixth Amendment to the US Constitution affords
Speaker 1: all criminal defendants the fundamental right to a fair trial
Speaker 1: Strickland versus Washington, nineteen eighty four. This includes the right
Speaker 1: to have an impartial jury who knows as little as
Speaker 1: possible of the case decide the defendants guilt based on
Speaker 1: material admitted into evidence before them. In a court proceeding
Speaker 1: on influence by extra judicial statements Genteel verse State Bar
Speaker 1: of Nevada, nineteen ninety one. A trial judge has affirmative
Speaker 1: duty to minimize the effects of pre trial publicity Shepherd vers. Maxwell,
Speaker 1: nineteen sixty six. In Shepherd, which is relied upon by
Speaker 1: the defendant, the United States Supreme Court recognized the adverse
Speaker 1: effect inflammatory publicity has on the ability to obtain an
Speaker 1: impartial jury, and strongly urged trial courts to act quickly
Speaker 1: and forcefully in addressing such publicity three eighty four US
Speaker 1: at three thirty five, three sixty one. The Court further
Speaker 1: advised that where there is reasonable likelihood that prejudicial news
Speaker 1: prior to trial will prevent a fair trial, the judge
Speaker 1: should continue the case until the threat of bates or
Speaker 1: transfer it to another county not so permeated with publicity
Speaker 1: idea three sixty three. This statement from Shepherd, however, must
Speaker 1: be read in context. The media coverage in the case
Speaker 1: is far different from that present here. In Shepherd, news
Speaker 1: reporters extensively covered the story of Sam Shepherd, who was
Speaker 1: accused of bludgeoning his pregnant wife to death. The court
Speaker 1: examined the extensive media fanfare surrounding the case, noting Shepherd
Speaker 1: was not granted a change of venue to a locale
Speaker 1: away from where the publicity originated, nor was his jury
Speaker 1: sequestered for months. The viral and publicity about Shepherd and
Speaker 1: the murder had made the case notorious. Charges and counter
Speaker 1: charges were aired in the news media beside those for
Speaker 1: which Shepherd was called to trial. In addition, only three
Speaker 1: months before trial, Shepherd was examined for more than five
Speaker 1: hours without counsel during a three day inquest which ended
Speaker 1: in a public brawl. The inquest was televised live from
Speaker 1: a high school gymnasium, seating hundreds of people. Furthermore, the
Speaker 1: trial began two weeks before a hotly contested election at
Speaker 1: which both chief Prosecutor Mahone and Judge Blythin were candidates
Speaker 1: for judge ships. The court found that there was no
Speaker 1: doubt that this deluge of publicity reached at least some
Speaker 1: of the jury, given that when the jury was questioned
Speaker 1: for the only time, two jurors admitted in open court
Speaker 1: to hearing the highly inflammatory charge that a prison inmate
Speaker 1: claimed Shepherd was the father of her illegitimate child. Nevertheless,
Speaker 1: the trial judge rejected requests by defense counsel for the
Speaker 1: jurors to be asked whether they had rhere or heard
Speaker 1: specific prejudicial comments about the case. Further the jurors were
Speaker 1: subjected to newspaper, radio, and television coverage of the trial
Speaker 1: while not taking part in the proceedings, and were allowed
Speaker 1: to go their separate ways outside of the courtroom without
Speaker 1: adequate directions not to read or listen to anything concerning
Speaker 1: the case. The judge gave suggestions and request of the
Speaker 1: jurors at intervals during the trial to refrain from commenting
Speaker 1: upon the case, but the jurors were thrust into the
Speaker 1: role of celebrities by the judge's failure to insulate them
Speaker 1: from the reporters and photographers. Bedlam reigned at the courthouse
Speaker 1: during the trial, and newsmen took over practically the entire
Speaker 1: court room. The court reverse Shepherd's murdered conviction. Crucially, the
Speaker 1: court stated that although the pre trial publicity alone was
Speaker 1: not sufficient to warrant relief, when combined with the carnival
Speaker 1: atmosphere the press created at trial, and the judges in
Speaker 1: ability or lack of desire to control the courtroom proceedings,
Speaker 1: Shepherd's right to a fair trial was denied three eighty
Speaker 1: four US and Nebraska Association versus. Stuart, nineteen seventy six.
Speaker 1: Pre trial publicity, even pervasive adverse publicity, does not inevitably
Speaker 1: lead to an unfair trial Skilling versus US twenty ten.
Speaker 1: If months of violent pre trial media coverage was not
Speaker 1: enough to deny due process in Shepherd, it is certainly
Speaker 1: not enough in this case. Where the media coverage has
Speaker 1: been far less pervasive. In addition, the court is employing
Speaker 1: the measures recommended in Shepherd to protect a defendant from
Speaker 1: prejudicial pre trial publicity, to wit. One limiting the number
Speaker 1: of reporters in the courtroom during the trial, two, insulating
Speaker 1: prospective witnesses from interviews with the media about their perspective testimony,
Speaker 1: and three making an effort to control the release of leads,
Speaker 1: information and gossip to the press by police officers, witnesses,
Speaker 1: and council for both sides to avoid disclosure of inaccurate
Speaker 1: and or inadmissible information to the public. Ultimately, whether defendant
Speaker 1: can receive a fair trial depends on whether a fair
Speaker 1: and impartial jury can be seated, As the United States
Speaker 1: Supreme Court is said to hold that the mere existence
Speaker 1: of any preconceived notion as to the guilt or innocence
Speaker 1: of an accused, without more is sufficient to rebut the
Speaker 1: presumption of a prospective jurors impartiality would be established an
Speaker 1: impossible standard. It is sufficient if the jur can lay
Speaker 1: aside his impression or opinion and render a verdict based
Speaker 1: on the evidence presented in court. Accordingly, the Idaho Supreme
Speaker 1: Court has long recognized that trial courts can successfully select
Speaker 1: an impartial jury despite widespread publicity State verse Windsor one ten, Idaho,
Speaker 1: nineteen eighty five. In State Verse Federally, a capital case,
Speaker 1: the Idaho Supreme Court disagreed with the defendants claim that
Speaker 1: the extensive publicity prior to trial deprived him of the
Speaker 1: opportunity to be tried before an inpartial jury one oh nine, Idaho,
Speaker 1: nineteen eighty five. Because each juror was extensively questioned to
Speaker 1: determine the degree of their exposure to pre trial publicity,
Speaker 1: the Court found that the defendant's rights were preserved. In
Speaker 1: the defendant subsequent habeas case, the Ninth Circuit examined at
Speaker 1: length the entire Vordear process and found no prejudice, even
Speaker 1: though on the day a jury selection, the case was
Speaker 1: covered on the front page of the local newspaper as
Speaker 1: well as on TV and the radio. With the measures
Speaker 1: the court has already put in place to protect the
Speaker 1: defendant against pre trial media coverage and the courts carefully
Speaker 1: crafted jury selection process, there's no reason to think that
Speaker 1: an impartial jury cannot be selected through a searching and
Speaker 1: robust vor Deer. In addition, While continuances may be appropriate
Speaker 1: if pre trial scrutiny is reasonably expected to fade with time,
Speaker 1: it's an ineffective tool where publicity is such that there
Speaker 1: is no reason to anticipate that it would subside by
Speaker 1: any delay, which would put off the trial indefinitely. In
Speaker 1: Us versus Moreno Morales, the Court of Appeals for the
Speaker 1: First Circuit noted the denial of emotion for an indefinite
Speaker 1: or substantial continuance predicated upon widespread adverse pre trial publicity
Speaker 1: about a defendant is all the more warranted when, as here,
Speaker 1: there is sound reason to believe that the defendant will
Speaker 1: continue to be controversial publicity, invoking figure and ten, since
Speaker 1: there is little assurance that the passage of the time
Speaker 1: will result in the abatement or a subsidence of critical
Speaker 1: publicity in the foreseeable future, the Court observed that the
Speaker 1: sixth Amendment guarantee of a speedy trial is one to
Speaker 1: which the government and society, as well as he accused,
Speaker 1: has a claim, and stated that society cannot be utterly
Speaker 1: deprived of the right to prosecute and try someone for
Speaker 1: a crime within a reasonable time merely because of widespread
Speaker 1: community knowledge here there is no assurance that the pre
Speaker 1: trial publicity will fade with time. The murders occurred over
Speaker 1: two and a half years ago. The circumstances of the
Speaker 1: murders were provocative for college students in a small Idaho
Speaker 1: college town were brutally stabbed to death by an unknown perpetrator.
Speaker 1: It was an immediate media sensation and garnered widespread attention
Speaker 1: that not only continues to persist, but continues to grow.
Speaker 1: Eighteen months ago, defendant move for a change of venue
Speaker 1: from Leyta County due in part to the extensive inflammatory
Speaker 1: pre trial publicity and allegations made about mister Kolberger to
Speaker 1: the public by media that will be an admissible at trial.
Speaker 1: Motion for a change of venue January thirtieth, twenty twenty four.
Speaker 1: He argued that Leta County was not large enough to
Speaker 1: avoid the bias caused by the pervasive prejudicial publicity. Defendant's
Speaker 1: motion was granted and as a result, the trial date
Speaker 1: was continued by approximately ten weeks. Those additional ten weeks
Speaker 1: have not resulted in fading media attention. It has only
Speaker 1: given the media more time an opportunity to provide coverage
Speaker 1: to a public audience, which is clamoring for answers. The
Speaker 1: longer the public is made to sit and wait for
Speaker 1: the facts to come out at trial, the more time
Speaker 1: there is for inflammatory speculative stories, movies and books to circulate,
Speaker 1: and more time for prior ones to re broadcast purchased, viewed,
Speaker 1: and consumed by the public. Proceeding with the trial of
Speaker 1: schedule will likely avoid negative consequences from future publicity. Thus,
Speaker 1: the court finds a continuance is not warranted based on
Speaker 1: the media coverage. Rather, careful and patient vorder is prescribed. Two.
Speaker 1: A continuance is not warranted to investigate the leak of information.
Speaker 1: Defendant also asserts that a continuance is necessary to accommodate
Speaker 1: the Special Prosecutor's investigation into the source of the leaks
Speaker 1: to the media and to impose accountability with regard to
Speaker 1: the Dateline episode. Defended points out that Dateline represented that
Speaker 1: the material came from sources close to the investigation. He
Speaker 1: notes that Patterson's upcoming book on the crime Promises claims
Speaker 1: to be the most comprehensive narrative of the investigation and
Speaker 1: evidence to date, and is based on over three hundred
Speaker 1: interviews several individuals, including the victim's families and local law enforcement.
Speaker 1: He also notes that the Amazon Prime docuseries promises to
Speaker 1: be told in a captivating, tense and emotionally wrenching detail
Speaker 1: by those involved and a by the crime. He argues
Speaker 1: that if any of the leaks came from witnesses the
Speaker 1: state intends to call, or from others involved in the investigation,
Speaker 1: the information is Brady material because it would serve to
Speaker 1: impeach the leaker's credibility and may be exculpatory in nature.
Speaker 1: He adds that if the investigation reveals that other state
Speaker 1: agents had information about the leaks but failed to disclose it,
Speaker 1: this omission would constitute a Brady violation. As noted, a
Speaker 1: continuance is not warranted where the information sought thereby as
Speaker 1: mere speculation. Defendant's Brady argument is built on a house
Speaker 1: of speculative assumptions. An assumption that there was a leak
Speaker 1: by persons bound by the non dissemination order, an assumption
Speaker 1: the leaker will be found, an assumption that the leaker
Speaker 1: were law enforcement, an assumption that the leaker or others
Speaker 1: who may be complicit will be testifying as government witnesses,
Speaker 1: and an assumption that the witness will likely be material.
Speaker 1: Such assumptions are not grounds for a continuance, particularly given
Speaker 1: there is no guarantee if and when it will be
Speaker 1: confirmed or debunked. This trial cannot be held hostage indefinitely
Speaker 1: to the outcome of the investigation, particularly given the very
Speaker 1: significant chance the leakers may never be discovered. Thus, the
Speaker 1: Court will continue the trial pending the results of an
Speaker 1: investigation based on speculation and it will be successful, and
Speaker 1: the hope that impeachment evidence may be uncovered as a result.
Speaker 1: Order based on the foregoing defendant's motion to continue is denied.
Speaker 1: This was dated June twenty sixth and it was signed
Speaker 1: by Judge Hitler. All of the information that goes with
Speaker 1: this episode can be found in the description box.