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Speaker 1: What's up everyone, and welcome back to the program. In

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this episode, we're getting right back to the declaration in

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support of Brian Kolberger that was given by Brian Edelman.

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A similar pattern was found with other prejudicial media items,

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some of which were inaccurately reported by the press. For example,

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only three percent of Leta County survey respondents mentioned that

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Brian Colberger had stalked one of the victims when asked

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what they knew about the case. However, forty five percent

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later recognized this media item when asked, have you read, seen,

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or heard of Brian Kolberger stalked one of the victims.

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The failure to recall this detail from memory when responding

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to an open ended question is concerning given that it

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significantly related to bias. Approximately eighty one percent of survey

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respondents who later recognized this media item believe that Colburger

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is guilty. The inability to provide a full account of

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everything adjourn knows about a case puts the defendant in

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an untenable position. Counsel must choose to either rely on

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an open ended question known to generate incomplete recall, or

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ask media specific recognition questions, which are more diagnostic, but

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risk exposing prospective jurors to extra judicial information they may

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not be familiar with. Prospective jurors inability to recall the

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full extent of their exposure to pre trial publicity can

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undermine the value of vorder as a corrective measure for

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identifying and ferreting out bias in high profile cases. If

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jurors are unable to fully recall from memory their detailed

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knowledge about a case when asked an open ended question,

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it makes it difficult for counsel to effectively exercised challenges.

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This problem is exasperated when there is an extensive reporting

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around inadmissible content or disputed facts. Incomplete recall also poses

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a problem for the trial court when exercising its discretion

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to weigh perspective jurors self reports about their ability to

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be fair and impartial and rule on cause challenges. This

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predicament is compounded by research which suggests that professions of

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impartiality should not always be taken at face value. Part

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of the challenge media coverage represents surrounds juror's efforts to

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guess how exposure to pre trial publicity may affect their

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evaluations of the evidence. Given the difficulties that such a

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guest poses. It is not surprising that claims of impartiality

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in high profile cases have been shown to be unreliable.

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A study on the prejudicial impact of pre trial publicity

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found that sixty two percent of jury eligible residents said

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they could be fair and impartial and decide the case

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solely on the basis of the evidence presented. However, only

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thirty nine percent said they put the knowledge of the

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media out of his or her mind. Another obstacle is

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the well documented tendency for individuals to respond in a

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manner that will be viewed favorably by others, which has

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been coined by social desirability effect. This funemon has been

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researched and found in a multitude of disciplinary settings, including

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the courtroom. Socially desirable responses are more likely to occur

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when individuals become focused on the public aspects of themselves.

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Public awareness of oneself can become particularly salient in a

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courtroom setting where prospective jurors are asked questions by an

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authority figure in front of a public audience. Jones, for example,

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reported that participants appeared to alter their answers to reflect

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what they thought a judge wanted to hear rather than

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what they actually thought. When potential jurors learn through the

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jury selection process that the law requires them to be

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fair and impartial, there is a risk that they will

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overstate their ability to set aside their knowledge and beliefs

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in order to create a favorable public impression. Also referred

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to as a response bias and demand characteristics, the effect

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causes the jur interviewee to pick up the subtle and

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overt clues as to what a lawyer or judge interviewer

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wants to hear her year. A clear, strong message is

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often sent to prospective jurors. Good jurors are not supposed

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to have prejudicial information or bias about the case. If

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they do, then they should set them aside and decide

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the case solely on the law and the evidence presented

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in court. When this is established, many prospective jurors will

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adjust their public statements to meet to these courtroom norms.

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The social desirability effect is found even in instances when

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the jury pool has been exposed to extreme forms of

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prejudicial media coverage. In Redoubt, the jury pool was exposed

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to a tape twenty minute interview in the jail between

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the defendant and the sheriff. In the interrogation, the defendant

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confessed to the murder of three people during a bank robbery.

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A soundtrack was added to the recording, and the interview

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aired three times on television. Within a few months leading

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up to the trial, three of the twelve seated jurors

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had seen the televised interrogation. Despite the highly prejudicial nature

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of such a sensational television confession, all three jurors told

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the court during vorder that they could lay aside any

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opinion given the defendant the presumption of innocence as provided

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by law, base their decisions solely upon the evidence, and

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apply the law as given by the court. Chief Justice

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Hughes offered his honest view of the world nearly ninety

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years ago. In the United States versus would, Impartiality is

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not a technical conception. It's a state of mind. A

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trial court's decision whether a juror possessed this mental attitude

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of appropriate indifference must be reviewed in the totality of circumstances.

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It's not limited to the juror's response to a magic question.

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In Irvin versus Doubt, the court ruled no doubt. Each

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juror was sincere when he said that he would be

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fair and impartial to the petitioner. But the psychological impact

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requiring such a declaration before one fellows is often its father.

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Where so many many times admitted prejudice, such a statement

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of impartiality can be given little way. As one of

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the jurors put it, you can't forget what you hear

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and see with his life at stake. It's not requiring

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too much that the petitioner be tried in an atmosphere

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that is undisturbed by so huge a wave of public passion,

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and by a jury other than one in which two

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thirds of the members admit before hearing any testimony to

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possessing a belief in his guilt. The set aside question

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has also been shown in the social science literature to

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be leading increases socially desirable responses and lacks validity ieed

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not correlated with other measures of bias. Research has demonstrated

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that answers to the set aside question often conflict with

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responses to other measures of bias. For example, Moron and

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Cutler nineteen ninety one found that sixty two percent of

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jury eligible residents in high profile cases said that they

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could be fair and impartial and decide the case solely

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on the basis of the evidence presented. However, only thirty

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nine percent said that they could put the knowledge of

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the media out of his or her mind. They also

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found that subjective estimates of the ability to be fair

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and impartial was not related to the case knowledge. Sue

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Smith and Padroza nineteen seventy five found that participants who

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had been exposed to negative pre trial publicity and reported

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that they could render a fair and impartial verdict were

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just as likely to convict compared to their counterparts in

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a control group that had read neutral pre trial publicity

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and also reported that they could be fair and impartial.

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My own research also demonstrates the unreliability of the set

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aside question. A twenty twenty study presented at the American Psychology,

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Law and Society Annual Conference found that prospective jurors profess

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that they can be fair and impartial even in the

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most extreme circumstances. Participants were recruited from a Facebook page

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dedicated to a popular mini series called The Jinx. The

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documentaries about Robert Durst, a real estate mogul in New

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York who had been associated with the string of murders.

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Durst was arrested and charged with m shortly after the

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documentary aired on Max formerly known as HBO Max. The

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mini series included many highly prejudicial and potentially inadmissible allegations

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and details. The documentary also captured a confession that was

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unintentionally recorded while Durst was in the bathroom. People who

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publicly posted highly prejudicial opinions on the Facebook page were

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recruited for the study. For example, one participant posted, this

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is the true vision of a sociopath. I'm physically ill

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over the conclusion. I'm besides myself. I was overjoyed at

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the news that he was arrested. Approximately ninety two percent

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of participants reported that Durst was guilty, and seventy seven

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percent reported that he would have a difficult time convincing

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them that he was not guilty in an upcoming murder trial.

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In addition, participants were familiar with multiple prejudicial media items

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from the documentary, including that Durst I was a suspect

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in his wife's disappearance ninety six percent, was a suspect

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several murders ninety two percent, and had been tried in

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Texas for murder ninety two percent and had allegedly confessed

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one hundred percent. Participants were read an instruction drafted from

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the transcript from a high profile case. The introduction mentioned

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that Durst was entitled to a fair and impartial trial.

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The burden of proof was on the prosecution to prove

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that he was guilty beyond a reasonable doubt. Participants were

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also told that the law requires them to set aside

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any bias and opinions they had and decide the case

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solely based on the evidence inside the courtroom. Participants were

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then asked if they could be fair and impartial and

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decide the case solely on the basis of the evidence,

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as the law required. Even though these participants had been

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exposed to a prejudicial mini series with multiple inadmissible prejudicial details,

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made negative comment about the defendant, publicly believed that Durst

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was guilty, and indicated that he would have a difficult

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time convincing the Motherwise, eighty one percent reported that they

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could be fair and in partial. When asked an open

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ended question, their responses mirrored what they had heard from

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the introduction. For example, the participant who described the defendant

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as a true vision of a sociopath reported that he

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could be definitely fair and impartial and explained I could

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start from the beginning and listen to the information presented

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and follow the directions and wipe out everything that I know.

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I would need to be convinced beyond a shadow of

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a doubt. These findings are consistent with the body of

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social science literature on the effectiveness of the set aside question.

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Even in the most extreme of circumstances, prospective jurors provide

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the socially desirable response. Accordingly, a jurors professed ability to

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be fair and impartial should not be taken at face

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value in cases where there is substantial prejudicial pre child publicity.

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This is less of an issue when dealing with limited

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case knowledge and general attitudes jurors typically bring with them

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into the courtroom in most cases e g. Medical malpractice duy.

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There is little evidence, however, to suggest that individuals can

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forget or disassociate themselves from specific attitudes, emotions, and beliefs

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about the defendant and the case developed from exposure to

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media coverage. The conclusion, it's my opinion that the residents

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in Letah County have been exposed to extensive prejudicial pre

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trial publicity in social media surrounding the murders of Kailiganslvis Madison,

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Mogen Xanna Kernodle, and Ethan Chapin, the media saturated the

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jury pool with potential trial evidence and details, some of

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which proved to be false or misleading. These killings send

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shockwaves through the local community and generated widespread panic During

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the six week search for the killer. With limited information

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made available by investigators, rumors and misinformation proliferated through informal

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communication channels and social media platforms about the crime and

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the killer. Residents remained on high alert and feared that

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the murderer could strike again. A large number of students

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went home for the Thanksgiving break and did not return.

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Despite efforts by the court to curb the flow of

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prejudicial pre trial publicity, the survey data indicates that the

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coverage has had an impact on the jury pool and

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undermine the presumption of innocence. Approximately ninety eight percent of

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the survey respondents were familiar with the case. In addition,

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community members are more than just familiar with this crime.

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Sixty eight percent of survey respondents reported that they have

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followed the case somewhat or very closely, with twenty nine

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percent falling into the latter category. In addition, seventy nine

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percent of survey respondents recognized at least five of nine

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media items tested in the survey, and fifty two percent

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new seven or more. Eighty one percent of those familiar

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with the case had read, seen, or heard that police

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found a knife sheath on the bed next to one

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of the victims, and sixty seven percent were aware that

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DNA found on the sheath was matched to Brian Kolberger.

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In addition, eighty six percent of Leta County survey respondents

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heard that the defendant owned the same type of are

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recorded on video driving in the neighborhood where the killings occurred.

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N seventy nine percent new that cell phone tower data

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purportedly shows that Coburger made several trips to the victim's

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home months before the killings. These findings are particularly concerning

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given the media items which came from the probable cause

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Affidavid released to the media were significantly related to prejudgment.

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This puts the defendant at a distinct disadvantage at the

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start of the trial. Many of the incriminating details widely

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reported or in dispute, including the claim that Coburger's vehicle

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was placed near the crime scene by video footage and

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cell tower data. After these details were mentioned repeatedly in

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the coverage for over sixteen months, the prosecution stated during

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a hearing that several of them were false or potentially inadmissible.

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Within this climate, the burden of proof is shifted to

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the defendant. Coburger must change juror's pre existing opinions regarding

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the evidence against them, which has developed from extent of

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exposure to bias media coverage. Several rumors have proliferated throughout

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Leaytai County. For example, survey respondents reported Colburger had a

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bad history with women, was responsible for other murders, bragged

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about committing the perfect murder, and was acting strange after

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the crime occurred. The media also shared posts from his

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social media accounts which reinforced negative opinions of the defendant.

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Other survey respondents reported that Coburger was obsessed with one

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of the victims, had dated her tractor location and been

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in her house in the past. There was also speculation

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about drugs, other suspects involved an online business that was

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sexual in nature, and parties at the victim's house. Many

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Leytai County. Prospective jurors exposed to prejudicial media coverage hold

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the presumption of guilt. Approximately sixty seven percent of survey

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00:14:49,720 --> 00:14:53,080
respondents who knew about the case reported that Brian Colberger

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00:14:53,120 --> 00:14:56,480
is guilty of murder, with twenty five percent indicating that

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00:14:56,559 --> 00:15:00,279
he is definitely guilty. The presumption of innocence increased eighty

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00:15:00,320 --> 00:15:03,759
one percent for those who recognize seven or more media items.

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In addition, fifty one percent of survey respondents reported that

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Coburger would have a difficult time convincing them that he's

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00:15:11,120 --> 00:15:14,159
not guilty, which increased to sixty six percent for those

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who recognize seven or more media items. Leta is the

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eleventh largest county in Idaho, with just thirty two thousand,

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00:15:21,759 --> 00:15:24,600
five hundred and fifteen residents over the age of eighteen.

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00:15:25,120 --> 00:15:28,480
Sixty six percent or twenty one thousand, five hundred and

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00:15:28,559 --> 00:15:32,320
ninety eight of its jury eligible population reside in Moscow,

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the community most traumatized by this crime. These murders devastated

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this small town and shattered residence sense of safety. The

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00:15:40,200 --> 00:15:44,320
survey data provides insight into the extent of personal connections

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00:15:44,320 --> 00:15:47,960
among Leata County residents to Moscow the University of Idaho

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00:15:48,159 --> 00:15:51,840
and these murders. Approximately eighty eight percent of those familiar

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00:15:51,879 --> 00:15:54,600
with the case have talked about it or heard others

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talking about it in person or online. In addition, seventy

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eight percent of survey respondents lived in Moscow or knew

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00:16:01,320 --> 00:16:03,440
someone who lived there at the time of the murders.

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00:16:03,919 --> 00:16:07,720
Another twenty five percent reported that they or a family

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00:16:07,759 --> 00:16:10,519
member was a student or employee at the University of

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00:16:10,559 --> 00:16:14,360
Idaho and Moscow. A sizeable percentage of the prospective jury

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00:16:14,360 --> 00:16:19,039
pool was also connected to the murder investigation. Approximately twenty

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00:16:19,120 --> 00:16:22,879
two percent of Leayta County survey respondents are employed or

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00:16:22,919 --> 00:16:25,799
know someone employed by law enforcement agency involved in the

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00:16:25,879 --> 00:16:30,039
murder investigation. Leata County residents lived in a perpetual state

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of panic during the search for the killer. Many survey

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00:16:32,960 --> 00:16:36,159
respondents reported that they started locking their doors for the

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00:16:36,159 --> 00:16:39,960
first time, and parents feel that feared that their children's lives.

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00:16:39,960 --> 00:16:43,159
More than half fifty six percent of survey respondents reported

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00:16:43,320 --> 00:16:47,360
that they or someone they know experienced higher levels of stress, anxiety,

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00:16:47,639 --> 00:16:51,120
or fear during the manhunt. That number increased to sixty

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00:16:51,120 --> 00:16:55,519
three percent for Moscow residents. Overall, these findings are particularly

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concerning given the limitations of ordeer as a tool for

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00:16:59,159 --> 00:17:02,159
assessing the full ex extent of a prospective jurors case

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00:17:02,279 --> 00:17:06,480
knowledge in high profile cases. Consistent with the research literature,

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survey respondents offered incomplete recall when asked the common open

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00:17:10,599 --> 00:17:13,200
ended question, what have you read, seen, or heard about

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00:17:13,200 --> 00:17:17,400
the case? Most survey respondents ninety six percent later recognized

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00:17:17,400 --> 00:17:20,200
at least one additional media item they failed to report

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00:17:20,440 --> 00:17:23,279
in their open ended answer, and recognized an average of

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00:17:23,359 --> 00:17:27,680
four point nine additional media items. For example, only three

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00:17:27,720 --> 00:17:30,839
percent of the survey respondent mentioned that Brian Colberger had

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00:17:30,880 --> 00:17:33,480
stalked one of the victims when describing that they had

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00:17:33,519 --> 00:17:36,839
heard about the case. However, forty five percent remembered this

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00:17:36,920 --> 00:17:40,640
prejudicial media item when asked a close ended recognition question

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00:17:40,759 --> 00:17:44,440
later in the survey. The finding is particularly concerning given

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that eighty one percent of survey respondents who were familiar

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00:17:47,799 --> 00:17:51,119
with this media item believe Brian Colberger is guilty of murder,

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00:17:51,319 --> 00:17:54,000
and sixty two percent reported that he would have a

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00:17:54,000 --> 00:17:58,119
difficult time convincing them otherwise. Jurors in ability to fully

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00:17:58,160 --> 00:18:01,680
recall what they know about a higher file case undermines

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00:18:01,720 --> 00:18:04,400
the value of wardeer as a tool for a ferreting

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00:18:04,440 --> 00:18:07,599
out bias. If jurors are unable to fully disclose what

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00:18:07,640 --> 00:18:10,119
they have read, seen, or heard, then neither the court

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00:18:10,160 --> 00:18:14,160
nor defense Council can properly weigh self professions of impartiality

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00:18:14,359 --> 00:18:19,240
and exercise challenges. The comparison surveys also found significant differences

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00:18:19,319 --> 00:18:25,359
between Layta County and the comparison venues. Ada County's population

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00:18:25,480 --> 00:18:28,279
is more than twelve times larger than Layta County, with

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00:18:28,400 --> 00:18:31,880
four hundred and six thousand, zero sixty eight residents over

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00:18:31,920 --> 00:18:35,000
the age of eighteen. Its residents are also far less

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00:18:35,000 --> 00:18:38,400
invested in the case. Only fifteen percent reported that they

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00:18:38,400 --> 00:18:41,920
followed the case very closely, and survey respondents were less

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00:18:41,920 --> 00:18:46,279
familiar with prejudicial media items. For example, sixty three percent

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00:18:46,319 --> 00:18:48,759
had read, seen, or heard that police found the knife

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00:18:48,759 --> 00:18:51,319
sheath on one of the victim's beds, and fifty two

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00:18:51,359 --> 00:18:54,000
percent had heard the DNA on the knife sheath matched

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00:18:54,000 --> 00:18:58,119
the defendant. Recognition rates for these media items were eighteen

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00:18:58,160 --> 00:19:02,160
and fifteen percentage points lower in Layta County. Ada County.

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00:19:02,200 --> 00:19:06,640
Survey respondents were also less familiar with prejudicial information reported

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by the media. For example, thirty five percent had heard

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00:19:09,960 --> 00:19:12,880
that the defendant allegedly followed one of the victims on

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00:19:12,880 --> 00:19:16,240
social media, compared to forty five percent in Layta County.

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00:19:16,799 --> 00:19:21,079
Ada County residents had fewer personal connections to these murders

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00:19:21,319 --> 00:19:24,640
and the local community. Only twenty percent lived or knew

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00:19:24,640 --> 00:19:27,039
someone who lived in Moscow at the time of the killings.

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00:19:27,160 --> 00:19:29,880
Just over four percent reported that they have a family

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00:19:29,920 --> 00:19:32,519
member who was a student or employee at the University

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00:19:32,519 --> 00:19:35,319
of Idaho and Moscow. In addition, two percent of Ada

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00:19:35,400 --> 00:19:39,079
County survey respondents or employed or no someone who's employed

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00:19:39,079 --> 00:19:43,240
by law enforcement agency involved in the murder investigation. Finally,

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Ada County community members did not suffer the levels of

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00:19:46,119 --> 00:19:49,640
emotional distress found in Layta County during the search for

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00:19:49,680 --> 00:19:53,160
the killer. Only thirty one percent of prospective jurors reported

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00:19:53,200 --> 00:19:57,119
that they or someone they know experienced higher levels of stress, anxiety,

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00:19:57,200 --> 00:20:00,480
or fear during the manhunt twenty five percent toge points

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00:20:00,480 --> 00:20:04,240
lower than in Leatai County. In conclusion, given the nature

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00:20:04,279 --> 00:20:06,799
of the pre trial publicity, its negative impact on the

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00:20:06,839 --> 00:20:09,920
Leytai County jerry pool, and the small size of the county,

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I believe that there is a reasonable likelihood that the

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00:20:12,519 --> 00:20:15,880
presumption of innocence has been undermined and shifted to a

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presumption of guilt. As such, remedial measures are necessary to

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protect the defendant's constitutional rights to affair and impartial trial.

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Based on these findings, it's my opinion that a change

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00:20:27,759 --> 00:20:31,519
of venue would be an appropriate prophylactic measure to mitigate

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the prejudicial impact of pre trial publicity surrounding this case.

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I declare, under penalty of perjury under the laws of

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the State of California, that the foregoing facts are true

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and correct, except as to the facts stated upon information

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and belief, which facts I believe to be true. Executed

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on July fifteenth, twenty twenty four, and signed by Brian Edelman.

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All Right, so there's a declaration of Brian Edelman and

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why he thinks that Brian Kolberger is not going to

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get a fair trial in Moscow. So as this information

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continues to hit the docket, we'll get it added to

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the catalog. As for this one, well, that's going to

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do it. All of the information that goes with this

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episode can be found in the description box