Defense attorney Anne C. Taylor had a sharp accusation of her own, saying the judge violated her client's right to due process by ordering a stop to the anonymous survey without hearing the defense's side first.
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The courtroom drama marked another unexpected turn in the case against Kohberger, who is accused of fatally stabbing four University of Idaho students in November 2022.
Kohberger's defense attorney said the phone survey was an important part of her efforts to seek a change of venue for Kohberger's trial, given the vast amount of local media coverage on the case in northwest Idaho.
Latah County Prosecutor Bill Thompson said he had no problem with the defense commissioning "responsible, proper surveys" - but "this survey cannot stand."
'That's completely reckless,' prosecutor says
The heated hearing Thursday took place after prosecutors asked Latah County District Court Judge John Judge to issue an order "prohibiting contact with prospective jurors" outside of court.
The judge granted the prosecution's request and scheduled Thursday's meeting to hear from both sides of the case.
"Our sole concern today is the nature of certain questions that have been propounded to residents of Latah County by a survey company that's contracted by the defense," Thompson told the judge.
The prosecutor then read an excerpt from the court's June 2023 non-dissemination order, also known as a gag order: "The court ordered that counsel for all parties and ... agents and other attorneys are prohibited from making extrajudicial statements, written or oral, that the lawyer or agent knows or reasonably should know will have a substantial likelihood of materially prejudicing or otherwise influence the outcome of this case."
Thompson said the defense attorney told him "she had not seen the actual questions themselves - that she had approved the topics that could be looked into during the survey."
"We are not accusing Ms. Taylor of drafting these questions verbatim and then saying, 'Go send these out to the public,'" the prosecutor told the judge. "We are concerned, though, that the people hired by the defense to conduct this survey did exactly that."
Thompson said a resident contacted his office about some of the questions received during the phone survey, including:
- "Have you read, seen or heard that Bryan Kohberger was arrested at his parents' home in Pennsylvania?"
-"Have you read, seen or heard if police found a knife sheath on the bed next to one of the victims?"
- "Have you read, seen or heard that DNA found on the knife sheath was later matched to Bryan Kohberger?"
-"Have you read, seen or heard if university students in Moscow (Idaho) and their parents lived in fear until Bryan Kohberger was arrested for the murders?"
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-"Have you read, seen or heard that Bryan Kohberger stalked one of the victims?"
"Your honor ... those questions are disseminating, by means of communication, evidence expected to be presented (and) evidence that could be or would be inadmissible at trial," Thompson told the judge.
He also said some of the questions contain "representations of fact that are not true or that would not be offered at trial."
"That's completely reckless," Thompson said.
"We have a group of at least 400 people in Latah County who have been exposed to this in violation of the non-dissemination order."
Accusations fly between judge and attorney
During the hearing, Taylor said the survey was important for the defense team's efforts to seek a change of venue for Kohberger's trial, given the immense local media coverage on the case.
"This survey was never intended to do anything but identify issues within the county to support or defeat our argument for venue change," Taylor told Judge.
"My issue is that the order was signed stopping our work without a chance to be heard," she said.
The judge asked Taylor if the contractor who created the survey questions was "aware of the dissemination work" in the case.
"I don't know if he was aware of that or not," the defense attorney said. "But we gave him no information in the case, your honor. He received nothing from us as far as police reports, no contact with our client, no interviews, he received no information. His entire construct of this survey is - as he does in his high profile cases - he (culled) the media local to this area to see what the most common stories were. Those are things that are in the public arena."
"That does miss the point," the judge said. "Our concern from the very beginning was all the media stuff floating around that affects your client, Mr. Kohberger, to get a fair trial. And some of these questions actually create a concern about ... well, that they're inculpatory."
Taylor expressed frustration that the judge granted the prosecution's request to have contact with potential jurors halted without hearing the defense's side of the story first.
"I was shocked to see the court issue an order within hours of the state filing a motion late on a Friday without giving us a chance to be heard," the defense attorney said. "And that's going to delve into our argument on due process."
The judge defended his actions late Friday afternoon, saying he received the prosecution's request around 4:30 p.m., read over the materials, issued the non-permanent order and promptly scheduled a hearing to discuss with both sides of the case.
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"It seemed like there were some real, legitimate concerns about the survey," Judge told Taylor.
"Now I'm being accused of violating due process, which is a whole big issue for me," the judge said.
"So what are we doing today? ... I'm hearing you out. You had notice," Judge told Taylor. "What is your understanding of due process?"
Taylor said she believes the defense's side of the story should have been heard prior to the judge's order to halt the public surveys.
"And so we're stopped from completing our comparative surveys ... when we're up against the deadline to get to our motion to change of venue," Taylor said. "It stops me from doing the work and meeting the deadlines to argue for Bryan to be in a place where he can have a fair trial. I think the court should not have issued an order stopping us, but set a hearing" for the next business day, rather than for two weeks later.
But the judge said Taylor could have prevented the ordeal altogether.
"We wouldn't even be here, OK, if there was some communication between you and state about the survey," he said.
"I was surprised, OK, that this was happening behind our backs - my back."
The prosecution and the judge asserted there was no violation of Kohberger's due process rights.
What happens next
The judge did not set a trial date for Kohberger or make any ruling about a change of venue. But he said the next court hearing on the case will take place Wednesday at 4 p.m. PT.
The judge said he also wants a "hearing at least every month," noting the importance of "cleaning up" the legal proceedings.
"I'm not happy about the specific questions, especially ones that are false and people hear that and they just get an even worse sort of impression of Mr. Kohberger," Judge said.
"There are also cases or questions that are very specific that are going to be major issues in the trial, and so I'm really worried about that."
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