Speaker 1: What's up everyone, and welcome back to the program. In
this episode, we're getting right back to the declaration in
support of Brian Kolberger that was given by Brian Edelman.
A similar pattern was found with other prejudicial media items,
some of which were inaccurately reported by the press. For example,
only three percent of Leta County survey respondents mentioned that
Brian Colberger had stalked one of the victims when asked
what they knew about the case. However, forty five percent
later recognized this media item when asked, have you read, seen,
or heard of Brian Kolberger stalked one of the victims.
The failure to recall this detail from memory when responding
to an open ended question is concerning given that it
significantly related to bias. Approximately eighty one percent of survey
respondents who later recognized this media item believe that Colburger
is guilty. The inability to provide a full account of
everything adjourn knows about a case puts the defendant in
an untenable position. Counsel must choose to either rely on
an open ended question known to generate incomplete recall, or
ask media specific recognition questions, which are more diagnostic, but
risk exposing prospective jurors to extra judicial information they may
not be familiar with. Prospective jurors inability to recall the
full extent of their exposure to pre trial publicity can
undermine the value of vorder as a corrective measure for
identifying and ferreting out bias in high profile cases. If
jurors are unable to fully recall from memory their detailed
knowledge about a case when asked an open ended question,
it makes it difficult for counsel to effectively exercised challenges.
This problem is exasperated when there is an extensive reporting
around inadmissible content or disputed facts. Incomplete recall also poses
a problem for the trial court when exercising its discretion
to weigh perspective jurors self reports about their ability to
be fair and impartial and rule on cause challenges. This
predicament is compounded by research which suggests that professions of
impartiality should not always be taken at face value. Part
of the challenge media coverage represents surrounds juror's efforts to
guess how exposure to pre trial publicity may affect their
evaluations of the evidence. Given the difficulties that such a
guest poses. It is not surprising that claims of impartiality
in high profile cases have been shown to be unreliable.
A study on the prejudicial impact of pre trial publicity
found that sixty two percent of jury eligible residents said
they could be fair and impartial and decide the case
solely on the basis of the evidence presented. However, only
thirty nine percent said they put the knowledge of the
media out of his or her mind. Another obstacle is
the well documented tendency for individuals to respond in a
manner that will be viewed favorably by others, which has
been coined by social desirability effect. This funemon has been
researched and found in a multitude of disciplinary settings, including
the courtroom. Socially desirable responses are more likely to occur
when individuals become focused on the public aspects of themselves.
Public awareness of oneself can become particularly salient in a
courtroom setting where prospective jurors are asked questions by an
authority figure in front of a public audience. Jones, for example,
reported that participants appeared to alter their answers to reflect
what they thought a judge wanted to hear rather than
what they actually thought. When potential jurors learn through the
jury selection process that the law requires them to be
fair and impartial, there is a risk that they will
overstate their ability to set aside their knowledge and beliefs
in order to create a favorable public impression. Also referred
to as a response bias and demand characteristics, the effect
causes the jur interviewee to pick up the subtle and
overt clues as to what a lawyer or judge interviewer
wants to hear her year. A clear, strong message is
often sent to prospective jurors. Good jurors are not supposed
to have prejudicial information or bias about the case. If
they do, then they should set them aside and decide
the case solely on the law and the evidence presented
in court. When this is established, many prospective jurors will
adjust their public statements to meet to these courtroom norms.
The social desirability effect is found even in instances when
the jury pool has been exposed to extreme forms of
prejudicial media coverage. In Redoubt, the jury pool was exposed
to a tape twenty minute interview in the jail between
the defendant and the sheriff. In the interrogation, the defendant
confessed to the murder of three people during a bank robbery.
A soundtrack was added to the recording, and the interview
aired three times on television. Within a few months leading
up to the trial, three of the twelve seated jurors
had seen the televised interrogation. Despite the highly prejudicial nature
of such a sensational television confession, all three jurors told
the court during vorder that they could lay aside any
opinion given the defendant the presumption of innocence as provided
by law, base their decisions solely upon the evidence, and
apply the law as given by the court. Chief Justice
Hughes offered his honest view of the world nearly ninety
years ago. In the United States versus would, Impartiality is
not a technical conception. It's a state of mind. A
trial court's decision whether a juror possessed this mental attitude
of appropriate indifference must be reviewed in the totality of circumstances.
It's not limited to the juror's response to a magic question.
In Irvin versus Doubt, the court ruled no doubt. Each
juror was sincere when he said that he would be
fair and impartial to the petitioner. But the psychological impact
requiring such a declaration before one fellows is often its father.
Where so many many times admitted prejudice, such a statement
of impartiality can be given little way. As one of
the jurors put it, you can't forget what you hear
and see with his life at stake. It's not requiring
too much that the petitioner be tried in an atmosphere
that is undisturbed by so huge a wave of public passion,
and by a jury other than one in which two
thirds of the members admit before hearing any testimony to
possessing a belief in his guilt. The set aside question
has also been shown in the social science literature to
be leading increases socially desirable responses and lacks validity ieed
not correlated with other measures of bias. Research has demonstrated
that answers to the set aside question often conflict with
responses to other measures of bias. For example, Moron and
Cutler nineteen ninety one found that sixty two percent of
jury eligible residents in high profile cases said that they
could be fair and impartial and decide the case solely
on the basis of the evidence presented. However, only thirty
nine percent said that they could put the knowledge of
the media out of his or her mind. They also
found that subjective estimates of the ability to be fair
and impartial was not related to the case knowledge. Sue
Smith and Padroza nineteen seventy five found that participants who
had been exposed to negative pre trial publicity and reported
that they could render a fair and impartial verdict were
just as likely to convict compared to their counterparts in
a control group that had read neutral pre trial publicity
and also reported that they could be fair and impartial.
My own research also demonstrates the unreliability of the set
aside question. A twenty twenty study presented at the American Psychology,
Law and Society Annual Conference found that prospective jurors profess
that they can be fair and impartial even in the
most extreme circumstances. Participants were recruited from a Facebook page
dedicated to a popular mini series called The Jinx. The
documentaries about Robert Durst, a real estate mogul in New
York who had been associated with the string of murders.
Durst was arrested and charged with m shortly after the
documentary aired on Max formerly known as HBO Max. The
mini series included many highly prejudicial and potentially inadmissible allegations
and details. The documentary also captured a confession that was
unintentionally recorded while Durst was in the bathroom. People who
publicly posted highly prejudicial opinions on the Facebook page were
recruited for the study. For example, one participant posted, this
is the true vision of a sociopath. I'm physically ill
over the conclusion. I'm besides myself. I was overjoyed at
the news that he was arrested. Approximately ninety two percent
of participants reported that Durst was guilty, and seventy seven
percent reported that he would have a difficult time convincing
them that he was not guilty in an upcoming murder trial.
In addition, participants were familiar with multiple prejudicial media items
from the documentary, including that Durst I was a suspect
in his wife's disappearance ninety six percent, was a suspect
several murders ninety two percent, and had been tried in
Texas for murder ninety two percent and had allegedly confessed
one hundred percent. Participants were read an instruction drafted from
the transcript from a high profile case. The introduction mentioned
that Durst was entitled to a fair and impartial trial.
The burden of proof was on the prosecution to prove
that he was guilty beyond a reasonable doubt. Participants were
also told that the law requires them to set aside
any bias and opinions they had and decide the case
solely based on the evidence inside the courtroom. Participants were
then asked if they could be fair and impartial and
decide the case solely on the basis of the evidence,
as the law required. Even though these participants had been
exposed to a prejudicial mini series with multiple inadmissible prejudicial details,
made negative comment about the defendant, publicly believed that Durst
was guilty, and indicated that he would have a difficult
time convincing the Motherwise, eighty one percent reported that they
could be fair and in partial. When asked an open
ended question, their responses mirrored what they had heard from
the introduction. For example, the participant who described the defendant
as a true vision of a sociopath reported that he
could be definitely fair and impartial and explained I could
start from the beginning and listen to the information presented
and follow the directions and wipe out everything that I know.
I would need to be convinced beyond a shadow of
a doubt. These findings are consistent with the body of
social science literature on the effectiveness of the set aside question.
Even in the most extreme of circumstances, prospective jurors provide
the socially desirable response. Accordingly, a jurors professed ability to
be fair and impartial should not be taken at face
value in cases where there is substantial prejudicial pre child publicity.
This is less of an issue when dealing with limited
case knowledge and general attitudes jurors typically bring with them
into the courtroom in most cases e g. Medical malpractice duy.
There is little evidence, however, to suggest that individuals can
forget or disassociate themselves from specific attitudes, emotions, and beliefs
about the defendant and the case developed from exposure to
media coverage. The conclusion, it's my opinion that the residents
in Letah County have been exposed to extensive prejudicial pre
trial publicity in social media surrounding the murders of Kailiganslvis Madison,
Mogen Xanna Kernodle, and Ethan Chapin, the media saturated the
jury pool with potential trial evidence and details, some of
which proved to be false or misleading. These killings send
shockwaves through the local community and generated widespread panic During
the six week search for the killer. With limited information
made available by investigators, rumors and misinformation proliferated through informal
communication channels and social media platforms about the crime and
the killer. Residents remained on high alert and feared that
the murderer could strike again. A large number of students
went home for the Thanksgiving break and did not return.
Despite efforts by the court to curb the flow of
prejudicial pre trial publicity, the survey data indicates that the
coverage has had an impact on the jury pool and
undermine the presumption of innocence. Approximately ninety eight percent of
the survey respondents were familiar with the case. In addition,
community members are more than just familiar with this crime.
Sixty eight percent of survey respondents reported that they have
followed the case somewhat or very closely, with twenty nine
percent falling into the latter category. In addition, seventy nine
percent of survey respondents recognized at least five of nine
media items tested in the survey, and fifty two percent
new seven or more. Eighty one percent of those familiar
with the case had read, seen, or heard that police
found a knife sheath on the bed next to one
of the victims, and sixty seven percent were aware that
DNA found on the sheath was matched to Brian Kolberger.
In addition, eighty six percent of Leta County survey respondents
heard that the defendant owned the same type of are
recorded on video driving in the neighborhood where the killings occurred.
N seventy nine percent new that cell phone tower data
purportedly shows that Coburger made several trips to the victim's
home months before the killings. These findings are particularly concerning
given the media items which came from the probable cause
Affidavid released to the media were significantly related to prejudgment.
This puts the defendant at a distinct disadvantage at the
start of the trial. Many of the incriminating details widely
reported or in dispute, including the claim that Coburger's vehicle
was placed near the crime scene by video footage and
cell tower data. After these details were mentioned repeatedly in
the coverage for over sixteen months, the prosecution stated during
a hearing that several of them were false or potentially inadmissible.
Within this climate, the burden of proof is shifted to
the defendant. Coburger must change juror's pre existing opinions regarding
the evidence against them, which has developed from extent of
exposure to bias media coverage. Several rumors have proliferated throughout
Leaytai County. For example, survey respondents reported Colburger had a
bad history with women, was responsible for other murders, bragged
about committing the perfect murder, and was acting strange after
the crime occurred. The media also shared posts from his
social media accounts which reinforced negative opinions of the defendant.
Other survey respondents reported that Coburger was obsessed with one
of the victims, had dated her tractor location and been
in her house in the past. There was also speculation
about drugs, other suspects involved an online business that was
sexual in nature, and parties at the victim's house. Many
Leytai County. Prospective jurors exposed to prejudicial media coverage hold
the presumption of guilt. Approximately sixty seven percent of survey
respondents who knew about the case reported that Brian Colberger
is guilty of murder, with twenty five percent indicating that
he is definitely guilty. The presumption of innocence increased eighty
one percent for those who recognize seven or more media items.
In addition, fifty one percent of survey respondents reported that
Coburger would have a difficult time convincing them that he's
not guilty, which increased to sixty six percent for those
who recognize seven or more media items. Leta is the
eleventh largest county in Idaho, with just thirty two thousand,
five hundred and fifteen residents over the age of eighteen.
Sixty six percent or twenty one thousand, five hundred and
ninety eight of its jury eligible population reside in Moscow,
the community most traumatized by this crime. These murders devastated
this small town and shattered residence sense of safety. The
survey data provides insight into the extent of personal connections
among Leata County residents to Moscow the University of Idaho
and these murders. Approximately eighty eight percent of those familiar
with the case have talked about it or heard others
talking about it in person or online. In addition, seventy
eight percent of survey respondents lived in Moscow or knew
someone who lived there at the time of the murders.
Another twenty five percent reported that they or a family
member was a student or employee at the University of
Idaho and Moscow. A sizeable percentage of the prospective jury
pool was also connected to the murder investigation. Approximately twenty
two percent of Leayta County survey respondents are employed or
know someone employed by law enforcement agency involved in the
murder investigation. Leata County residents lived in a perpetual state
of panic during the search for the killer. Many survey
respondents reported that they started locking their doors for the
first time, and parents feel that feared that their children's lives.
More than half fifty six percent of survey respondents reported
that they or someone they know experienced higher levels of stress, anxiety,
or fear during the manhunt. That number increased to sixty
three percent for Moscow residents. Overall, these findings are particularly
concerning given the limitations of ordeer as a tool for
assessing the full ex extent of a prospective jurors case
knowledge in high profile cases. Consistent with the research literature,
survey respondents offered incomplete recall when asked the common open
ended question, what have you read, seen, or heard about
the case? Most survey respondents ninety six percent later recognized
at least one additional media item they failed to report
in their open ended answer, and recognized an average of
four point nine additional media items. For example, only three
percent of the survey respondent mentioned that Brian Colberger had
stalked one of the victims when describing that they had
heard about the case. However, forty five percent remembered this
prejudicial media item when asked a close ended recognition question
later in the survey. The finding is particularly concerning given
that eighty one percent of survey respondents who were familiar
with this media item believe Brian Colberger is guilty of murder,
and sixty two percent reported that he would have a
difficult time convincing them otherwise. Jurors in ability to fully
recall what they know about a higher file case undermines
the value of wardeer as a tool for a ferreting
out bias. If jurors are unable to fully disclose what
they have read, seen, or heard, then neither the court
nor defense Council can properly weigh self professions of impartiality
and exercise challenges. The comparison surveys also found significant differences
between Layta County and the comparison venues. Ada County's population
is more than twelve times larger than Layta County, with
four hundred and six thousand, zero sixty eight residents over
the age of eighteen. Its residents are also far less
invested in the case. Only fifteen percent reported that they
followed the case very closely, and survey respondents were less
familiar with prejudicial media items. For example, sixty three percent
had read, seen, or heard that police found the knife
sheath on one of the victim's beds, and fifty two
percent had heard the DNA on the knife sheath matched
the defendant. Recognition rates for these media items were eighteen
and fifteen percentage points lower in Layta County. Ada County.
Survey respondents were also less familiar with prejudicial information reported
by the media. For example, thirty five percent had heard
that the defendant allegedly followed one of the victims on
social media, compared to forty five percent in Layta County.
Ada County residents had fewer personal connections to these murders
and the local community. Only twenty percent lived or knew
someone who lived in Moscow at the time of the killings.
Just over four percent reported that they have a family
member who was a student or employee at the University
of Idaho and Moscow. In addition, two percent of Ada
County survey respondents or employed or no someone who's employed
by law enforcement agency involved in the murder investigation. Finally,
Ada County community members did not suffer the levels of
emotional distress found in Layta County during the search for
the killer. Only thirty one percent of prospective jurors reported
that they or someone they know experienced higher levels of stress, anxiety,
or fear during the manhunt twenty five percent toge points
lower than in Leatai County. In conclusion, given the nature
of the pre trial publicity, its negative impact on the
Leytai County jerry pool, and the small size of the county,
I believe that there is a reasonable likelihood that the
presumption of innocence has been undermined and shifted to a
presumption of guilt. As such, remedial measures are necessary to
protect the defendant's constitutional rights to affair and impartial trial.
Based on these findings, it's my opinion that a change
of venue would be an appropriate prophylactic measure to mitigate
the prejudicial impact of pre trial publicity surrounding this case.
I declare, under penalty of perjury under the laws of
the State of California, that the foregoing facts are true
and correct, except as to the facts stated upon information
and belief, which facts I believe to be true. Executed
on July fifteenth, twenty twenty four, and signed by Brian Edelman.
All Right, so there's a declaration of Brian Edelman and
why he thinks that Brian Kolberger is not going to
get a fair trial in Moscow. So as this information
continues to hit the docket, we'll get it added to
the catalog. As for this one, well, that's going to
do it. All of the information that goes with this
episode can be found in the description box