BOISE, Idaho — Bryan Kohberger, the man accused of killing four University of Idaho students, did not stalk one of the victims, attorneys on both sides of the capital murder case said Wednesday, one of the few issues on which they agreed at a combative court hearing that appeared to be setting the tone for trial.
Reports that the defendant followed one of the victims on social media also were deemed false as the lead prosecutor traded barbs with Kohberger’s defense about whether they had violated the judge’s order not to make comments about the case outside of court.
The new details emerged in the closely watched case during testimony from a trial consultant the defense hired to contact prospective jurors and help gauge potential bias against their client in the community where the crime took place. His survey work around the Moscow area drew the ire of prosecutors over questions that he included as part of the defense’s efforts to show that Kohberger’s trial needs to be moved elsewhere in the state.
“The state is coming from a position of being practical and trying to use common sense here,” Latah County Prosecutor Bill Thompson told the court Wednesday. “It seems the position of the defense is it is OK to risk tainting additional jurors in order to ascertain bias of other potential jurors, and I’m not sure that’s the way this court should do business.”
Kohberger, 29, is charged with four counts of first-degree murder and one count of felony burglary in the November 2022 deaths of the U of I students. The victims were seniors Kaylee Goncalves and Madison Mogen, both 21, junior Xana Kernodle and freshman Ethan Chapin, both 20.
At the time, Kohberger was a graduate student of criminal justice and criminology at neighboring Washington State University in Pullman. The school is located about 9 miles west of Moscow over the state line.
Prosecutors have already stated their intent to seek the death penalty if Kohberger is convicted by a jury.
Bryan Edelman, co-founder of California-based jury consultancy Trial Innovations, did not dispute that some of his survey questions — specifically those concerning whether Kohberger had stalked or followed the victims on social media — included false information.
“Mr. Kohberger allegedly stalked one of the victims,” Thompson said during cross-examination, referencing the survey question. “That’s false. You know that to be false. … And your surveyors put that false information into the minds of people who were asked that question who may not have previously heard it.”
But Edelman and the defense argued that the erroneous details already were widely available to the public in media reports about the case. The way the questions were formed is important for collecting reliable data, he said.
“My focus is to assess whether or not media coverage is prejudicial — prejudicial — and whether or not it’s led to opinions,” Edelman said during the nearly three-hour hearing. “It doesn’t matter if it’s true or not.”
Edelman affirmed that he wrote the questions and did not receive the defense’s guidance on how to ask them. He testified that he has worked on several other high-profile cases, including with gag orders, and said his approach was “standard practice” for this kind of opinion research.
‘You can’t taint what’s tainted’
The phone survey of 400 potential jurors in Latah County revealed that 45% of respondents said they had read, seen or heard in the news that Kohberger had stalked one of the victims, Edelman said. Of them, 81% said they believed Kohberger was guilty, versus 57% who said he was guilty if they were unaware of those reports.
Anne Taylor, Kohberger’s lead public defender, argued Edelman’s same survey needed to be conducted in at least two other counties as they continue to work toward justifying a change of venue for trial. She rejected Thompson’s assertion that the defense, through its hired consultant, had violated the gag order.
“Mr. Kohberger is my client and his rights are of the utmost importance to me,” she said, and placed her hand on the defendant’s shoulder while he was seated next to her. “I’m his advocate. I want to help him. I believe in his innocence.”
Judge John Judge of Idaho’s 2nd Judicial District in Latah County acknowledged the challenge he faced in trying to find a path forward now that the false information had already been relayed to possible jurors through Edelman’s survey. He indicated that the inaccurate details included in two of the nine questions asked of respondents do not exist in the court record, and therefore brushed up against his standing gag order in the case.
“So, I mean, here we are. That happened, it’s kind of unfortunate,” he said Wednesday. “It’s something that I’m going to have to struggle through and figure out what to do, and I understand that there’s some urgency to get that out.”
Judge clarified that his ruminations at a hearing last week about possibly disqualifying the 400 county residents who were surveyed was not a viable solution. Thompson had suggested that may be a potential option, in addition to the defense using a revised survey without questions that include false information.
Elisa Massoth, another of Kohberger’s attorneys, defended the survey work as necessary to convince Judge that an impartial jury cannot be found in Latah County. She said U.S. Supreme Court case law requires that media reports with false information be part of the analysis to justify local bias.
“We as a defense team have the obligation and, frankly, the privilege of defending Mr. Kohberger, and defending his right to a fair trial,” Massoth said. “And in doing so, in arguing the venue should be changed, we have to show you that there is presumed prejudice in this community.”
Some of the survey questions were based on the probable cause affidavit, which she said includes inaccurate details that news outlets have reported as facts. For example, the police narrative suggests that Kohberger was suspected of surveilling the off-campus house on King Road where the victims were killed, including through repeat trips back and forth between Moscow and Pullman, Massoth said.
“You can’t taint what’s tainted,” she said. “Latah County citizens have accepted the information placed before them by state actors. … This is all information that’s put out into the media, and having the state now claim this moral high ground is an oxymoron.”
Judge said he hoped to issue a ruling soon, but he was unlikely to deliver his decision this week. In turn, he pushed back the change of venue filing deadlines, and postponed next month’s scheduled hearing for arguments on the matter until late June.
The deadline for Kohberger’s attorneys to submit their client’s alibi if they plan to argue that defense at trial remains April 17. In initial alibi filings, Kohberger said that he was out driving alone overnight at the time of the U of I student homicides.
