Crime Fix with Angenette Levy - 'Outrageous!': Fireworks at Bryan Kohberger Hearing Over Juror Survey

Episode Date: April 5, 2024

Bryan Kohberger's attorneys were called on the carpet by prosecutors this week after they commissioned a phone survey to test whether residents in Latah County were biased against him. Kohberger's lawyers pushed back on prosecution claims the survey tainted the jury pool while Judge John Judge took issue with the defense saying he violated Kohberger's rights. Law&Crime's Angenette Levy talks with defense attorney Bill Gallagher about the heated hearing and surveys being used in high-profile cases in this episode of Crime Fix — a daily show covering the biggest stories in crime.Host: Angenette Levy  https://twitter.com/Angenette5Guest: Bill Gallagher https://twitter.com/AGCrimLawCRIME FIX PRODUCTION:Head of Social Media, YouTube - Bobby SzokeSocial Media Management - Vanessa BeinVideo Editing - Daniel CamachoAudio Editing - Brad MaybeGuest Booking - Alyssa Fisher & Diane KayeSTAY UP-TO-DATE WITH THE LAW&CRIME NETWORK:Watch Law&Crime Network on YouTubeTV: https://bit.ly/3td2e3yWhere To Watch Law&Crime Network: https://bit.ly/3akxLK5Sign Up For Law&Crime's Daily Newsletter: https://bit.ly/LawandCrimeNewsletterRead Fascinating Articles From Law&Crime Network: https://bit.ly/3td2IqoLAW&CRIME NETWORK SOCIAL MEDIA:Instagram: https://www.instagram.com/lawandcrime/Twitter: https://twitter.com/LawCrimeNetworkFacebook: https://www.facebook.com/lawandcrimeTwitch: https://www.twitch.tv/lawandcrimenetworkTikTok: https://www.tiktok.com/@LawandCrimeSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Wondery Plus subscribers can binge all episodes of this Law and Crimes series ad-free right now. Join Wondery Plus in the Wondery app, Apple Podcasts, or Spotify. What the agents of the defense have done is they have gone out and interrogated 400 citizens of Latah County. That is reckless conduct and it's outrageous. Fighting words in Brian Koberger's case after the defense reached out to potential jurors as they try to get a change of venue. There are two things that have happened without me being able to even weigh in that's done when the prosecutor asks you to do something. And I don't like that. I want to have opportunities to be heard.

And the judge not happy after Koberger claims he violated his rights. I told you that I was going to set the hearing. So I don't know what your understanding is with just the process. Thanks for joining me for Crime Fix. I'm Anjanette Levy. There were fireworks at the hearing in Brian Koberger's case, and it all stems from him wanting to move his trial out of Latah County. Koberger's lawyers hired someone to do a survey of potential jurors in Latah County, where University of Idaho students Maddie Mogan, Kelly Gonsalves, Ethan Chapin, and Zanna Kernodle were murdered in a house off campus back in November of 2022. The reason for the survey?

To see how tainted or biased the residents of Latah County might be against Brian Koberger. Prosecutors say the defense conducting a survey is not a big deal. But what has them so upset is the questions the trial consultants asked the 400 residents that they called on the phone. Have you read, seen, or heard if Brian Koberger owned the same type of car recorded on video driving in the neighborhood where the killings occurred? Have you seen, read, seen, or heard if the cell phone tower data showed that Brian Koberger

made several trips near the victim's home in the month before the killing? Have you read, seen, or heard if university students in Moscow and their parents lived in fear until Brian Koberger was arrested for the murders? Have you read, seen, or heard if Brian Koberger said that he was out driving alone on the night of the murders? Have you read, seen, or heard if Brian Koberger stopped one of the victims? Have you read, seen, or heard if Brian Koberger stopped one of the victims? Have you read, seen, or heard if Brian Koberger had followed one of the victims on social media? Your Honor, there is absolutely no question but that those questions

are disseminating by means of communication evidence expected to be presented, evidence that could be or would be inadmissible at trial. And I will say, there are a number of these representations placed in the form of a question, but representations of fact that are not true or that would not be offered at trial. Now, so much of this information is already out in the public, but prosecutor Bill Thompson argues that doesn't matter. He said putting it out there again violated the court's non-dissemination order, an order the defense actually requested. Here's defense attorney Ann Taylor. This court and counsel knows how much coverage this case has received. And he does what he does by looking only at what's in the public. We didn't provide

him any police reports. We didn't call... I'm sorry. It's just that that does miss the point. It's kind of ironic that we have worked so hard, including you, okay, both sides, to protect a fair trial, okay? And our concern from the very beginning was all the media stuff floating around, okay, that affects your client, Mr. Koberger, to get a fair trial? And some of these questions actually create a concern about, well, that they're inculpatory. It could be prejudiced for his client, okay? And I'm just surprised that both of you didn't come together and say, you know, there are certain things that we don't, we probably shouldn't put into the public on a telephone call. That's, I mean, it really concerns me. And that's why I did what I did that Friday.

So Ann Taylor says she didn't actually approve the questions, but she did approve the topics and the survey is anonymous. And things got pretty heated when Judge Judge addressed the defense's claim that he violated Koberger's due process rights when he issued an order halting the survey until they could have a hearing. Now I'm being accused of violating a due process, which is a whole big issue for me. I can understand that that would not be taken.

I have to represent my client to the best of my ability. And the reason for that, Your Honor, with all due respect, 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. My order didn't say it was permanent. Maybe I told you that I was going to have a hearing. Maybe I phrased that very poorly. It's a decision that you already made. I made, okay, let's go, let's go back. I got the, I got the motion at 4.30 on Friday.

Now, it doesn't even reflect, you know, just when it was filed because Odyssey has a delay, right? So I get the motion at 4.30 Friday. I get a response from you at 4.45 Friday, right? I don't know what time you received it, but I filed an objection on that. Because then you know that about 5 o'clock, that's when I issued that. So I had a half an hour. I read the materials that were attached to the motion that the state filed, and I had very little information.

But it seemed like there were some real legitimate concerns about the survey. And obviously, it turns out there are concerns, legitimate concerns about what was done in the survey. Yikes. Ann Taylor had actually said in her motion asking Judge Judge to rescind the order that Thompson and Judge Judge were having conversations basically behind her back. And that's a big no-no when it comes to court. So here's how things ended with that survey. Judge, I'm confused. What are we going to have a hearing on?

Well, I want to see what thoughts you all have about dealing with the situation now, making sure that we can salvage everything or nothing. And Ms. Taylor is going to talk to Mr. Ellman, and maybe that'll give us some thoughts. Otherwise, I mean, I could just make the decision right now, but I'm no expert about surveys. So joining me to discuss all of this drama in the Brian Koberger case is somebody who's tried 13 death penalty cases. He's Bill Gallagher, a Cincinnati-based attorney. Bill, there was some major, major drama, major fireworks in court yesterday. I thought this was so interesting

because you said a month ago, we talked about this, you said that the defense should conduct a survey. They went out and tried to conduct a survey. And now the prosecution is saying your questions in the survey are inappropriate because you're basically disseminating information that may or may not be true. And some of it, it doesn't matter if we've talked about it, the DNA on the knife sheath, you're disseminating it yet again. What are your thoughts on the prosecution's argument? Well, I think the gag order should only pertain to information that the public does not already have in its domain. The fact that they may have given a jury consultant or they may have given a researcher topics that they would like to have discussed with the jurors, expert to decide how best to craft those questions in order to get a good hold on whether or not this jury pool can deliver a fair jury, a jury that can be fair. That's the biggest concern.

And Ann Taylor said that she approved topics. She did not see the questions or approve the questions. So Brian Adelman, a PhD trial consultant, he is the person who was conducting the survey. He came up with the questions by looking at news stories that were already kind of out there in the public. And all of the information that was brought up in court yesterday, Bill, is stuff that was either in the probable cause affidavit or was stuff that maybe was on social media and things that had been written about in the news. So the defense is saying, look, the doctor, Dr. Adelman can explain his methodology and we have him here ready to testify that the hearing's going to continue.

So it just seems like a major dust up over information that was already out there. But the judge is thinking and the prosecutor, their concern is that this could be basically tainting the jury pool yet again, because they obviously don't want to move the trial. They don't want the jury tainted. So do you think that's a possibility that the jury is being tainted potentially, a potential juror could be tainted by this information. It has had so much press, so much information out there.

And whether it's disinformation or whether it's just conflicting reports or conflicting perspectives, that you've already poisoned this jury pool. We have to go somewhere else where that is less likely to have occurred. If this were a local newspaper, news agency, or just an outside group of interested parties into what was going on with this case and wanted to get a flavor for what the community thought, this judge I don't think can really stop anyone else from doing that. It could be an anti-death penalty group. They might want to fund a study to show that that trial can't happen there. Or maybe the local newspaper just wants to know what its readers or the people in the community think about it. They could do their own poll. I don't see anything wrong with this poll unless it gave away information not already known. That's

how you attain to this jury pool, by giving them information that is not already available to them on the internet or at their local news outlet. And Ann Taylor said that she did not share reports with them of any kind. None of the material, the discovery material, was handed over to Dr. Edelman. This was all information he pulled from news reports. But the prosecutor was furious. Now the judge is upset as well because Ann Taylor, after this order had been issued by Judge Judge on a Friday at five o'clock saying, you're going to halt this study, this survey until we have a hearing on this.

She then files a motion to rescind the order and says, you are violating judge, judge, my client's due process rights. You are having this conversation with the prosecutor without hearing from me first. So you're violating my client's rights. And it's not the first time it's happened. So those are fighting words from Ian Taylor. Judge, judge was not pleased about it. And so he's basically saying to her, that is not what happened. So was that the right move by Ann Taylor? And she even said yesterday in court, she literally said to him, Your Honor, you are saying something to the state and you are saying you're going ahead and you're going

ahead with what they're saying without hearing from me and I don't like it. So was this the right move for her to question his impartiality in the motion? I would leave it quite frankly up to her decision making. She's the one that's had all those personal inner contacts, but it may be an attempt to sort of put the judge on notice that the defense has been unhappy with what they may perceive as either the leanings or the bias of the judge in this regard. And maybe by calling it out in filing, letting the judge know that that's the way the defense is perceiving it. And this is not the biggest pretrial matter that's going to come before this judge. And so it may be just laying that down. So future rulings, maybe their hope is get a greater scrutiny from the judge or an openness to their arguments, because he now knows that they are willing to file a motion in public calling the judge out

about his rulings or his leanings. Bill, the only reason the prosecution knew about this in the first place was because residents in Latah County who received these phone calls actually called the Moscow Police Department to report it. And one person apparently even recorded the survey, recorded being asked these questions, and then they turned it over to the police and the prosecutor's office. They felt something was amiss. They felt so concerned about this that they went to the police and the prosecutor. So does that in some way prove the defense's point that maybe they should be moving this trial? I think that that's a great fear. And if I were in the defense camp, my hope is that this is an outlier and just somebody who is not typical. But my fear, my great fear is that there are a lot of people in that county who have already perceived that there's one side that's the correct side in this case, right? And that any attempt by the defense attorneys to do anything

on behalf of their client is perceived to maybe be underhanded or illegal when it wasn't at all. And that's a real concern if you come in with that type of burden against you before you even start this process. Ann Taylor wants to conduct this survey in other counties. It's not like she just wants to stick to Latah. She wants to go to Ada County. That's in Boise. There's a larger population center there, a bigger jewelry pool, obviously a bigger media market as well. And then she wants to go to some smaller counties as well just to test the waters so she can present some evidence to the judge. I mean, this is a huge motion for them. This is huge because it could end up deciding Brian Koberger's fate. We already know where the state stands. They don't want this thing moved.

Right. And I get that. You know, if I'm the prosecutor, this is my home territory. I ran for election. My prosecutors are residents in that county. This defendant is not a resident of this county. So all of those things work in favor of the prosecution. You want this all in your home turf. You know this judge extremely well. And the political consequences, I'm not talking Republican, Democrat, but I am saying within that public, everyone in that community is going to be paying attention to this trial. And so people will be judged later on about their performances in this trial. And this prosecutor feels confident that they're going to prevail on guilt, innocence, and hopefully on the capital question. And I think he'd rather see that happen in his own county in front of his own constituents as opposed to in some foreign county.

Well, this is to be continued until the following week, until next week. They're going to come back to this issue. They're going to revisit it and possibly we'll hear from Dr. Adelman himself. So the issue is not settled. But the question is whether or not they'll have to start this survey all over again or whether the work can continue. And that will be up to Judge Judge. Bill Gallagher, thank you so much. Thank you for inviting me. I appreciate it. And that's it for this episode of Crime Fix. I'm Ann Jeanette Levy. Thanks for being with us.

We'll see you back here next time.