Crime Stories with Nancy Grace - HEAR IT: Gag order in Bryan Kohberger Murder Case Amended

Episode Date: June 25, 2023

The gag order in the Bryan Kohberger murder trial has been loosened. Under the new order, prosecution and defense attorneys can speak on some matters, but still must follow strict guidelines. The victims' families are now allowed to speak to the media but their attorneys can't.  Listen to judge's ruling. See omnystudio.com/listener for privacy information.

You're listening to an iHeart Podcast. Crime Stories with Nancy Grace. Hi, guys. Nancy Grace here. So much happening in the Brian Koberger prosecution. A lot of motions have been filed, some denied, some granted. But let's hear verbatim, word for word, critical motions and rulings in the Brian Koberger case. All of these legal maneuverings going on while the victim's families wait for justice. Dave Mack, kick it off. In the district court of the second judicial district of the state of Idaho and in for the county of Latah, state of Idaho plaintiff versus Brian C. Koberger, defendant. Case number CR29-22-2805, ordered denying the Associated Press's motion

to vacate the amended non-dissemination order. Introduction. This order addresses the motion to vacate the amended non-dissemination order filed by interveners, a coalition of 20 media outlets that will be collectively referred to as the Associated Press. The amended non-dissemination order does not restrict, restrain, or in any way enjoin the press from reporting on or publishing information they obtain through their own investigations or interviews. The amended non-dissemination order is not a gag order on the media. Instead, the page two amended non-dissemination order restricts attorneys directly involved in the case who are representing a party, a witness or a victim's family and the agents for those attorneys, including law enforcement, from making certain statements about the case to the media or the public. with conditions, unquote. Gentile v. State Bar of Nevada, 1991. The U.S. Supreme Court has recognized that, quote,

the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press, unquote. As officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will rebound to the detriment of the accused or that will obstruct the fair administration of justice. The purpose of the amended non-dissemination order, which was stipulated to by the parties, is to protect defendant Brian C. Koberger's right to a fair trial by an impartial jury as guaranteed by the Sixth Amendment. Quote, few, if any, interests under the Constitution are more fundamental than the right to a fair

trial by impartial jurors, and an outcome affected by extrajudicial statements would violate that fundamental right. Unquote. The Associated Press's motion to vacate the amended non-dissemination order is denied. This court has the authority to regulate the speech of attorneys participating in this case and the agents for those attorneys to ensure that Koberger is not denied his right to a fair trial by an impartial jury because of extrajudicial prejudicial statements. However, this court will issue a revised amended non-dissemination order that clarifies what cannot be discussed and

what can be. Page 3. Discussed. The revised amended non-dissemination order, 1, is limited to apply only to speech that is substantially likely to have a material prejudicial effect on the right to a fair trial, 2, applies equally to all attorneys participating in the case. 3. Is neutral as to points of view. And 4. Restricts attorneys' comments only until after the trial and any sentencing proceedings that may take place. The revised amended non-dissemination order is reasonable considering the facts of this case. 1. The evidence presented by the defense

showing the pervasiveness of media coverage, including coverage prejudicial to Coburger and coverage that includes extrajudicial statements by an attorney participating in the case, and two, the impact such prejudicial news coverage has on potential jurors and the fair administration of justice. The restriction imposed serves a legitimate purpose, and the very limited incidental effects of the revised amended non-dissemination order on the media's first amendment rights are overridden by the compelling interest in ensuring that coberger's right to a fair trial under the sixth amendment is not

jeopardized two background on november 13 2022 four university of id students, Kaylee González, Madison Mogan, Zanna Cronodal, and Ethan Chapin, were found deceased in González, Mogan, and Cronodal's off-campus home in Moscow, Idaho. The cause of death for each was ruled a homicide. As news of the tragedy broke, media outlets from around the country descended upon Moscow. As law enforcement investigated, news stations, newspapers, and social media were flooded with stories and speculation about the homicides and law enforcement's investigative efforts and abilities. Throughout the course of the investigation, the Moscow Police Department, in partnership with the University of Idaho,

the Latah County Prosecutor's Office, and the Idaho State Police held press briefings to answer questions and reassure the public. Appropriately, the information released was limited to protect the integrity of the ongoing investigation. Page 4. On December 30, 2022, Koberger was arrested and charged with four counts of murder in the first degree and one count of burglary. Again, media outlets descended upon Moscow and the news coverage quickly focused on Koberger. The same day that Koberger was charged, his attorney filed a motion for non-dissemination order, asking the magistrate judge to enter an order, quote, barring parties, their attorneys, investigators, law enforcement

personnel, and potential witnesses from discussing the case with any public communications media, unquote. Thereafter, on January 3rd, 2023, the defense and the state filed a stipulation for non-dissemination order, quote, prohibiting attorneys, investigators, and law enforcement personnel from making any extrajudicial statement, written or oral, concerning this case, other than a quotation from or reference to without comment the public records of the court in this case. The same day, the magistrate judge entered a non-dissemination order prohibiting the parties to the case, including investigators, law enforcement personnel, attorneys, and agents of the prosecuting attorney or defense attorney from making extrajudicial statements written or oral concerning this case other than a quotation from or reference to without comment the public records

of the case. On January 13, 2023, the magistrate judge held an in-chambers off-the-record conference with Latah County prosecuting attorney William W. Thompson Jr., Senior Deputy Prosecutor Ashley S. Jennings, Defense Counsel Ann C. Taylor, Attorneys for Two Witnesses in the Case, and Shannon Gray, Attorney for the Gonzales Family. A summary of the meeting, as prepared by the parties in the case, was filed with the Idaho Supreme Court on March 3, 2023, as part of the declaration of Deborah A. Ferguson in the case of petition for writ of mandamus or writ of prohibition, Idaho, April 24, 2023. The purpose of the conference was to address the applicability

of the non-dissemination order to the attorneys both present as page five parties to the case and the attorneys participating in the case. The magistrate judge reminded the attorneys that this case is a high-profile case with both national and international media coverage and that they have a duty under the Idaho rules of professional conduct to not interfere with the party's right to a fair trial. The magistrate advised the attorneys that it was not their job to disseminate information to the media. The magistrate judge stated that the non-dissemination order did not restrict the attorney's non-party clients from speaking to the media, but reiterated the importance of the case being tried in a court of law and not the media, and encouraged each attorney to advise

their clients accordingly in order to preserve the right to a fair trial by an impartial jury. On January 18, 2023, the magistrate judge, based on the stipulation of the parties, entered the amended non-dissemination order to balance Koberger's and the state's right to a fair trial and, quote, the right to free expression as afforded under both the United States and Idaho Constitution, unquote. The magistrate noted that, quote, to preserve the right to a fair trial, some curtailment of the dissemination of information in the case is necessary and authorized under the law, unquote. The amended non-dissemination order reads, it is hereby ordered, one, the attorneys for any interested party in this case, including the prosecuting attorney, defense attorney, and any attorney

representing a witness, victim, or victim's family, as well as the parties to the above entitled action, including but not limited to investigators, law enforcement personnel, and agents for the prosecuting attorney or defense attorney, are prohibited from making extrajudicial statements, written or oral, concerning this case, except without additional comment, a quotation from or reference to the official public record of the case. 2. This order specifically prohibits any statement which a reasonable person would expect to be disseminated by means of public communication that relates to the following. A. Evidence regarding the occurrences or transactions involved in this case. B. The character,

credibility, reputation, or criminal records of a party, victim, or witness, or the identity of a witness, or the expected testimony of a party, victim, or witness. Page 6. C. The performance or results of any examination or test, or the refusal or failure of a person to submit to an examination or test. D. Any opinion as to the merits of the case or the claims or defense of a party. E. Any information a lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial jury. F, any information reasonably likely to interfere with a fair trial in this case afforded under the United States and Idaho Constitution, such as the existence or contents of any confession, admission, or statement given by the defendant, the possibility of a plea of guilt or any opinion as to the defendant's guilt or innocence.

On February 6, 2023, the Associated Press filed a petition for writ of mandamus, or a writ of prohibition with the Idaho Supreme Court related to the amended non-dissemination order. On April 24, 2023, the Idaho Supreme Court issued an opinion dismissing the Associated Press' petition, finding that although the media did have standing to challenge the amended non-dissemination order, they must first present their petition to the trial court. Thereafter, on May 2, 2023, the Associated Press filed a motion to intervene and a motion to vacate the amended non-dissemination order. The magistrate set a scheduling conference for May 22, 2023. On May 16, 2023, an indictment

was filed against Koberger and this court began presiding over the case. On May 22, 2023, after Koberger's arraignment, this court conducted a scheduling conference and set a briefing schedule and hearing for oral argument. The Associated Press's motion to vacate the amended non-dissemination order was extensively briefed, and both the state and Koberger submitted extensive briefing in opposition to the motion. Oral argument was heard on June 9, 2023. The state was represented by William W. Thompson Jr. and Bradley J. Rudley, Latah County Prosecutor's Office. Koberger was represented by Ann C. Taylor and J. W. Logson, Katooni County Public Defender's Office. The Associated Press was represented by Wendy Olson

and Corey Caron. Page 7. During the hearing, the defense put on the testimony of two expert witnesses. First, Jean R. Saucier, Senior Vice President of TruScope North America, testified. In sum, Ms. Saucier testified to the quantity of media coverage in this case. It is undisputed that media coverage in this case is rampant and ongoing, including on television, the Internet, social media, and the radio. News surrounding the case is being reported by reliable sources of news, unreliable news outlets, and individuals engaged in spreading or fueling rumors, theories, and unfounded speculation. It is also worth noting that Ms. Saucier's testimony and

the exhibits she showed demonstrate that in the share of voice media coverage category, Shannon Gray's stories in the media had the highest potential reach of 561,112,573 impressions, with impressions being the, quote, opportunities to see, unquote, a story. Exhibit A, to defend his objections to media's MOT to vacate the amended non-dissemination order, Shannon Gray is the attorney for the González family and is bound by the amended non-dissemination order. The defense also submitted several news articles demonstrating that at least some portion of the news, if not most of it, is prejudicial to Koberger. See motion to take judicial notice of press coverage.

Second, Dr. Amani El-Elele, social psychologist and social cognition researcher, testified to the impact such media can have on a potential juror. It was Dr. El-Elele's opinion that vacating the non-dissemination order would increase the potential for bias among prospective jurors, both initially and throughout the trial. Dr. El-Elele further opined that my review of research illustrates that anti-defendant pretrial publicity increases the probability of guilty verdicts and that this bias persists despite the receipt of trial arguments and evidence admonitions to disregard the publicity

information and jury deliberation commentary by individuals with status slash expertise. Page eight, e.g., police, attorneys, and judges in the media coverage create more potential for biased jurors. Exhibit D. Two defendants' objection to media's MOT to vacate the amended non-dissemination order. Three. Issues presented. The Associated Press argues that the amended non-dissemination order restrains their constitutional right to gather news before it can be exercised in violation of the First Amendment. Memorandum in support of MOT to vacate amended non-dissemination order at 15.

The Associated Press asserts that their First Amendment rights are being violated because the media does not make the news. It reports the news. ID at 17. The argument continues that if a court orders an individual not to provide information to the media, then the media has nothing to report. I.D. Intervener's speech is thus being restrained before they can even speak. I.D. at 15. Thus, the Associated Press alleges that the amended non-dissemination order is a prior restraint on the media and does not survive the strict scrutiny test applied to prior restraints on the press.

This decision addresses the following. 1. The obligation of the court to ensure that Koberger's right to a fair trial is not being jeopardized by prejudicial extrajudicial statements. Two, the court's authority to impose restrictions on the speech of those attorneys and their agents involved in this case. And three, the standard applied to reviewing constitutional challenges by the media to non-dissemination orders aimed at trial participants, especially lawyers. Finally, this decision applies the law to the facts of this case in addressing the Associated Press's argument that the amended non-dissemination order violates their First Amendment rights. 4. Law. In 1966, the U.S. Supreme Court recognized a

defendant's right to a trial by an impartial jury free from outside influences in the face of massive pervasive and prejudicial publicity shepherd versus maxwell 1966 page nine while recognizing that a responsible press has always been regarded as the handmaiden of effective judicial administration especially in the criminal field the court chastised the trial judge for not taking strong measures to ensure shepherd's right to a fair trial. In Shepard, there was not a non-dissemination order on trial participants or any gag order on the media. Notably, in overturning Shepard's conviction, the court listed several things that the trial court should have done. One, the judge should have adopted stricter rules governing the use of the courtroom by newsmen

and should have more closely regulated the conduct governing the use of the courtroom by newsmen and should have more closely regulated the conduct of newsmen in the courtroom. Two, the court should have insulated the witnesses. All of the newspapers and radio stations apparently interviewed prospective witnesses at will and, in many instances, disclosed their testimony. Three, the court should have made some effort to control the release of leads, information, and gossip to the press by police officers, witnesses, and the counsel for both sides. Much of the information thus disclosed was inaccurate, leading to groundless rumors and confusion. Four, the judge should have at least warned the newspapers to check the accuracy of

their accounts. And five, it is obvious that the judge should have further sought to alleviate inaccurate prejudicial news by imposing control over the statements made to the news media by counsel, witnesses, and especially the coroner and police officers. In summary, the court stated that the trial court might well have prescribed extrajudicial statements by any lawyer, party witness, or court official which divulge prejudicial matters such as the refusal of Shepard to submit to interrogation or take any lie detector tests, the identity of prospective witnesses or their probable testimony, any belief in guilt or innocence, or like statements concerning the merits of the case. In this manner, Shepard's right to a trial free from outside influence

would have been given added protection. Page 10. Without corresponding curtailment of the news media, had the judge, the other officers of the court, and the police placed the interest of justice first, the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom, not pieced together from extrajudicial statements. In addressing the tension between the First Amendment and the Sixth Amendment, the court stated,

From the cases coming here, we note the unfair and prejudicial news comment on pending trials has become increasingly prevalent. Due process requires that the accused receive a trial by an impartial jury, free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances. Of course, there is nothing that prescribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial,

the judge should continue the case until threat abates or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sui sponte with counsel. If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives. The cure lies in those remedial measures that will prevent the prejudice at its inception. The court must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff, nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censorable and worthy of disciplinary measures. The Associated Press

relies heavily on CBS Inc. vs. Young and supported their position that the amended non-dissemination order is unconstitutional and must be vacated. In that case, the appellate court issued a decision addressing a non-dissemination order entered in a civil case. There, the non-dissemination order prohibited all counsel in court, page 11, personnel, all parties concerned with this litigation, whether plaintiffs or defendants, their relatives, close friends, and associates, from discussing any manner whatsoever these cases with members of the news media or the public. The press challenged the order as violating the

press's rights under the First Amendment. The court held as follows. Before a trial court can limit defendants and their attorneys exercise of First Amendment rights of freedom of speech, the record must contain sufficient specific findings by the trial court establishing that defendants and their attorneys conduct is a serious and imminent threat to the administration of justice. Applying either the standard that the speech must create a clear and present danger of a serious and imminent threat to the administration of justice, or the lesser standard that there must be a reasonable likelihood of a serious and imminent threat to the administration of justice, we hold that the trial court's order is constitutionally

impermissible. The court reasoned that the order issued by the trial court constituted a prior direct restraint upon freedom of expression. In sweeping terms, it seals the lips of all parties concerned with this litigation, whether plaintiffs or defendants, their relatives, close friends, and associates, from discussing in any manner whatsoever these cases with members of the news media or the public. Although the news media are not directly enjoined from discussing the case, it is apparent that significant and meaningful sources of information concerning the case are effectively removed from them and their representatives. To that extent, their protected right to obtain information

concerning the trial is curtailed and impaired. The court continued, we find the order to be an extreme example of a prior restraint upon freedom of speech and expression and one that cannot escape the prescriptions of the First Amendment unless it is shown to have been required to obviate serious and imminent threats to the fairness and integrity of the trial. Page 12. In this court's view, the young court's reliance on the high standard applied in Craig v. Harney and Wood v. Georgia is misplaced. Both of those cases dealt with contempt proceedings and did not address non-dissemination orders restricting extrajudicial statements by specific persons to preserve the right to a fair trial. In Harney, three media personnel were found guilty of criminal contempt and sentenced to three days in jail

for publications during an ongoing civil case in which they criticized the presiding judge. The judge found the news reports were designed to falsely represent to the public the nature of the proceedings and to prejudice and influence the court to grant a new trial. In reversing the decision of the trial court, the court held that, giving the editorial all the vehemence which the court below found in it, we fail to see how it could, in any realistic sense, create an imminent and serious threat to the ability of the court to give fair consideration to the motion for rehearing. This court agrees that any attempt by a court to hold the media

in contempt and even jail them for publications critical of the court should be viewed under the strictest scrutiny. However, the facts in Harney have no similarity to the restriction on the speech of trial participants in this case or in the Young case. In Wood, a grand jury was impaneled and instructed by the judge to investigate a voting issue within the county. While the grand jury was in session, the elected sheriff issued a public statement criticizing the judge for singling out the African-American community and essentially attempting, through the judicial process, to intimidate and silence the African-American community and essentially attempting, through the judicial process, to intimidate and silence the African-American vote.

The sheriff also wrote a letter to the grand jury implying that the court's charge was false, among other things. A month later, the sheriff was cited for contempt. Following a trial where the court failed to make any findings or articulate any reasoning for its decision, the sheriff was found guilty of, page 13, contempt and sentenced to 20 days in jail. In overturning the contempt conviction, the Supreme Court held that as an elected official, the sheriff had the right to enter the field of political controversy, particularly where his

political life was at stake. The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance. Our examination of the content of the petitioner's statements and circumstances under which they were published leads us to conclude that they did not present a danger to the administration of justice that should vitiate his freedom to express his opinions in the manner chosen. Again, the facts in Wood have no similarities to the amended non-dissemination order in this case or the facts in Young. Additionally, the Court's finding that before a trial court can limit defendants and their attorneys' exercise

of First Amendment rights of freedom of speech, the record must contain sufficient specific findings by the trial court establishing that defendants and their attorneys' conduct is a serious and imminent threat to the administration of justice, is at odds with the Supreme Court's later holding in genteel that will be discussed below. But see Levine v. U.S. District Court for Central District of California, 9th Circuit, 1985. The trial court imposed a restraining order prohibiting attorneys involved in the case from communicating with the media regarding the merits of the case. In reviewing the restraining order, the 9th Circuit applied strict scrutiny, regardless of the standard applied

to a constitutional challenge by a lawyer restricted by a non-dissemination order, a less demanding standard is applied when the media challenges such an order. Radio and Television News Association of Southern California versus U.S. District Court for Central District of California, Ninth Circuit, 1986. In 1976, the U.S. Supreme Court again addressed the tensions between the First Amendment and the Sixth Amendment in Nebraska Press Association v. Stewart. Crime Stories with Nancy Grace. crime stories with nancy grace page 14 even then in 1976 the court acknowledged that the speed of communication and the pervasiveness of the modern news media have exacerbated the tension between the first amendment and the sixth amendment unlike. Unlike in this case, Nebraska Press dealt with a restraint on the media's ability to publish or broadcast specific information, i.e. restraint on freedom of the press, and not a restraint on freedom of speech.

The court recognized that when the case is a sensational one, tensions develop between the right of the accused to trial by an impartial jury and the rights guaranteed others by the First Amendment. The court noted that a prior restraint on speech is most serious and the least tolerable infringement on the First Amendment rights, while also acknowledging that when the death penalty is on the table, it is not requiring too much that a defendant be tried in an atmosphere undisturbed by so huge a wave of public passion. The court stated that it is not asking too much to suggest that those who exercise First Amendment rights in newspapers or broadcasting enterprises direct some effort to protect the rights of an accused to a fair trial by unbiased jurors.

In a footnote in the concurring opinion authored by Justice Brennan, the following was noted. A significant component of prejudicial pretrial publicity may be traced to public commentary on pending cases by court personnel, law enforcement officials, and the attorneys involved in the case. In Shepard v. Maxwell Supra, we observed that the trial court might well have prescribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters. The judge should have further sought to alleviate this problem of publicity that misrepresented the trial testimony by imposing control over the statements made to the news media by counsel, witnesses, and especially the coroner and police officer.

Page 15. As officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice. It is very doubtful that the court would not have the power to control release of information by these individuals in appropriate cases and to impose suitable limitations whose transgression could result in disciplinary proceedings. Similarly, in most cases,

courts would have ample power to control such actions by law enforcement personnel shepherd and nebraska press leave no doubt that in appropriate cases the court has the authority to regulate the speech of attorneys involved in a case as well as their agents such as law enforcement to prevent prejudicial pretrial statements to preserve the right to a fair trial by an impartial jury. In 1985 and 1986, the Ninth Circuit Court of Appeals addressed a situation strikingly similar to the one now before the court in two separate opinions. As a way of background, defendant Richard Miller, a former FBI agent, was charged with espionage. The case received extensive local and national media coverage. After attorneys for both the prosecution and the defense engaged in extra judicial statements to the media, the trial court entered an order prohibiting all attorneys in the

case from making any statements to members of the news media concerning any aspect of the case that bears upon the merits to be resolved by the jury. In Levine, the court addressed a challenge to the non-dissemination order brought by defense counsel. The court framed the issue as addressing the clash between the basic and fundamental right to a fair criminal jury trial and the first amendment right of attorneys to engage in free speech. In reviewing the restraining order, the Ninth Circuit noted that the district court's order, page 16, applies only to participants. The Supreme Court has suggested that it is appropriate to impose greater restrictions on the free speech rights of trial participants than on the rights

of non-participants. The case for restraints on trial participants is especially strong with respect to attorneys. The court nevertheless applied strict scrutiny. Accordingly, the district court's order may be upheld only if the government establishes that 1. The activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest two the order is narrowly drawn and three less restrictive alternatives are not available the court concluded that the speech of the lawyers did pose a serious and imminent threat to the administration of justice and that the trial court's choice of remedy was appropriate however the court found

that the non-dissemination order was overbroad and directed the district court as follows. It is apparent that many statements that bear upon the merits to be resolved by the jury present no danger to the administration of justice. After the filing of this opinion, the district court must determine which types of extrajudicial statements pose a serious and imminent threat to the administration of justice in this case. The district court then must fashion an order specifying the prescribed types of statements. With regard to statements by the prosecution, it would be appropriate for the district court to order the government to observe the self-imposed limitations set forth in 28 CFR 50.2b, 1984.

With regard to statements by the defense, it would be appropriate to prescribe statements relating to one or more of the following subjects. 1. The character, credibility, or reputation of the party. 2. The identity of a witness or the expected testimony of a party or a witness. 3. The contents of any pretrial confession, admission, or statement given by a defendant or that person's refusal or failure to make a statement. 4. The identity or nature of physical evidence expected to be presented or the absence of such physical evidence. 5. The strengths or weaknesses of the case of either party. 6. Any other information the lawyer knows or reasonably should know is likely to be

inadmissible as evidence and would create a substantial risk of prejudice if disclosed. Page 17. ID at 599, citing model rules of professional conduct, Rule 3.6, 1983. ABA standards for criminal justice standard, 8-1.1, 1982. Model code of professional responsibility, DR 7-107, 1979. The case then went back to the trial court. The trial court amended its restraining order to adopt the six categories of speech by lawyer specified by the Ninth Circuit as appropriate to prescribe. The Radio and Television News Association then filed for a writ of mandamus with the Ninth Circuit,

arguing that the restraining order, even as amended, posed an unconstitutional prior restraint infringing freedom of the press. The Ninth Circuit addressed the media's challenge in radio. Like here, the media argued that the order, by effectively denying media access to trial participants, constitutes an unconstitutional restraint on the media's ability to gather news. Much of the court's opinion concluded that the trial court's amended restraining order was reasonable and served a legitimate purpose is worth repeating. The impact on the media in this case is significantly different from situations where the media is denied access to a criminal trial or is restricted in disseminating any information it obtains.

In contrast, the district court's order in this case is not directed toward the press at all. On the contrary, the media is free to attend all of the trial proceedings before the district court and to report anything that happens. In fact, the press remains free to direct questions at trial counsel. Trial counsel simply may not be free to answer. In sum, the media's right to gather news and disseminate it to the public has not been restrained. As we noted in Levine, the district court's order raises a freedom of the press issue that is analytically distinct from the issues that were raised in Associated Press and CBS. Rather, the RTNA asserts a First Amendment right of full access to trial participants. This assertion is not supported

by constitutional case law. See Pell v. Procronier, 1974. In holding that freedom of the press was not infringed by government restrictions on interviews with prison inmates, court rejected media assertion of right of access to the sources of what is regarded as newsworthy information. The press does enjoy a constitutional interest in access to our criminal courts and criminal justice process. In Richmond newspapers, page 18, 1980, the Supreme Court affirmed the First Amendment right of access or right to gather information granted to the press with respect to criminal trials. However, the court described that right only as a right to sit, listen, watch, and report. In Nixon v. Warner Communications, the Supreme Court held that

the First Amendment generally grants the press no right to information about a trial superior to that of the general public. The First Amendment does not grant the press a constitutional right of special access to information not available to the public generally. As with the public, the press has no greater privilege than the right to attend the trial. In short, the media's right to gather information during a criminal trial is no more than a right to attend the trial and report on their observations. KPNX Broadcasting Company, 1984, holding that limitations on the media's ability to interview trial participants do not violate the First Amendment. The media is granted access to the same information, but nothing more, that is available to the public. The district court, having determined that the free speech rights to the trial counsel must be restrained,

the media has no greater right than the public to hear that speech. The media never has any guarantee of or right to interview counsel in a criminal trial. Trial counsel are, of course, free to refuse interviews whether or not restrained by court order. If such an individual refuses an interview, the media has no recourse to relief based upon the First Amendment. In sum, the media's collateral interest in interviewing trial participants is outside the scope of protection offered by the First Amendment. The media's desire to obtain access to certain sources of information that otherwise might be available is not sufficient interest to establish an infringement of freedom of the press in this case. Consequently, we are not required to consider whether the district court's amended restraining order can withstand strict scrutiny as a prior restraint on constitutional freedom of the press. We need only examine whether the restrictions imposed are reasonable and whether the interests of the government override the very limited incidental effects of the order on First Amendment rights. The restrictions imposed also

must not serve as an illegitimate purpose. The district court found that restrictions on the extrajudicial statements of trial counsel to the press were necessary to reduce prejudicial publicity. We cannot say it was unreasonable for the district court to conclude the statements by trial counsel on matters bearing on the merits of the trial might impair the fairness of the trial or threaten the integrity of the judicial process, nor is there any indication in the record that the district court's order was intended to conceal the workings of the criminal justice system. The press remains free to attend the trial and scrutinize the fairness of the proceedings. On the basis of this limited

standard of review, the page 19 district court's amended restraining order is reasonable and serves a legitimate purpose. Radio makes clear that strict scrutiny does not apply to challenges by the press of non-dissemination orders that do not restrain the media, but instead restrain trial participants, as in this case. Instead, the standard to be applied is whether the restrictions imposed are reasonable and whether the interests of the government override the very limited incidental effects of the order on first amendment rights and whether the restrictions imposed serve a legitimate purpose as expressly recognized by the supreme court in 1991 the speech

of those participating before the courts can be limited inile, a defense attorney held a press conference after his client was indicted. Gentile proclaimed that the evidence at trial would prove his client was innocent and that crooked cops were the ones responsible for stealing the drugs and money at issue. Gentile also commented on other aspects of the defense's case. Six months later, Gentile's client was acquitted. Thereafter, the Nevada State Bar filed a complaint against Gentile alleging that he violated Nevada Supreme Court Rule 117, which prohibited a lawyer from making extrajudicial statements to the press that had a substantial likelihood of materially prejudicing a trial. However, Rule 117 expressly allowed a lawyer to state without elaboration the general

nature of the defense. The state bar's disciplinary board found Gentile in violation of Rule 117 and recommended that he be reprimanded. Ultimately, the Supreme Court held that Nevada Supreme Court rules Rule 117 as applied to the facts of the Gentile case was unconstitutionally vague. The court noted that the safe harbor provision misled Gentile into thinking that he could make the statements he made without discipline. Page 20. Despite the holding that Rule 117 was unconstitutionally void for vagueness as applied, the court continued to recognize that the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press

in Nebraska Press Association v. Stewart, 1976, and the cases which preceded it. Lawyers representing clients in pending cases are key participants in the criminal justice system, and the state may demand some adherence to the precepts of the system in regulating their speech as well as their conduct. As officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice because lawyers have special access to information through discovery and client communications their extrajudicial

statements pose a threat to the fairness of a pending proceeding since lawyer statements are likely to be received as especially authoritative the key takeaways from levine and genteel are that a court can to protect the right to a fair trial, prohibit lawyers involved in a case from making extrajudicial statements to the press, so long as the regulation is not overbroad. It's clear and provides notice of what is prohibited. While the Levine court applied strict scrutiny, Gentile suggests that a less demanding standard applies to restrictions on the speech of lawyers participating in pending cases the ability of a court to restrict the

speech of a lawyer participating in a case is rooted in a lawyer status as an officer of the legal system and a public citizen having special responsibility for the quality of justice. IRPC preamble, a lawyer's responsibility. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials. While it is a lawyer's duty when necessary to, page 21, challenge the rectitude of official action, it is also a lawyer's duty to uphold

legal process as an officer of the court a lawyer has a duty to preserve the integrity of the legal system search for the truth while maintaining a professional courteous and civil attitude toward all persons involved lawyers licensed to practice law in Idaho are governed by the Idaho Rules of Professional Conduct. Rule 3.6a specifically states that a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know, will be disseminated by means of public communication, and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

Comment 5 to Rule 3.6 gives specific examples of subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a criminal matter or any other proceeding that could result in incarceration. 1. The character, credibility, reputation, or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party suspect in a criminal investigation or witness or the identity of a witness or the expected testimony of a party or witness to in a criminal case or proceeding that could result in incarceration the possibility of a plea of guilty to the offense or the existence or contents of any confession admission or statement given by a defendant or suspect, or that person's refusal

or failure to make a statement. Three, the performance or results of any examination or test, or the refusal or failure of a person to submit to any examination or test, or the identity or nature of physical evidence expected to be presented. 4. Any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration. 5. Information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial that would, if disclosed, create a substantial risk of prejudicing an impartial trial. Or six, the fact that a defendant has been charged with a crime unless there is excluded therein a statement explained that the charge is merely an accusation

and that the defendant is presumed innocent until and unless proven guilty page 22 rule 3.6 also expressly allows lawyers participating in a matter to state the following one the claim offense or defense involved and accept when prohibited by law the identity of the persons involved two information contained in a public record three that an investigation of a matter is in progress four the scheduling or result of any step in litigation five a request for assistance in obtaining evidence and information necessary there too six a warning of danger concerning the behavior of a person involved when there is a reason to believe

that there exists the likelihood of substantial harm to an individual or to the public interest. And seven, in a criminal case, in addition to subparagraphs one through six, Roman numeral one, the identity, residence, occupation, and family status of the accused. Roman numeral 2, if the accused has not been apprehended, information necessary to aid in apprehension of that person. Roman numeral 3, the fact, time, and place of arrest. And Roman numeral

4, the identity of investigating and arresting officers or agencies, and the length of the investigation. Comment 1 to Rule 3.6 recognizes the difficulty in striking a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where the trial by jury is involved. Similarly, comment 6 to Rule 3.6 states that criminal jury trials will be most sensitive to extrajudicial speech. The American Bar Association has also promulgated standards for conduct of attorneys. Standard 8-2.1 governs the conduct of lawyers participating in a criminal

matter. Standard 8-2.1 reads, A, subject to any additional limitations imposed by local or professional rules during the pendency of a criminal matter, a lawyer participating in that criminal matter should not make, cause to be made, condone, or authorize the making of a public extrajudicial statement that if the lawyer knows or reasonably should know that it will have a substantial likelihood of influencing the outcome of that or any related criminal trial or prejudicing the jury veneer even if an untainted panel ultimately can be found. Page 23, Roman numeral two, unnecessarily heightening public condemnation of a defendant or a person or entity who has been publicly identified in the context of a criminal

investigation or of a witness or victim or Roman numeral three, undermining the public's respect for the judicial process, ABA standards for criminal justice, undermining the public's respect for the judicial process. ABA Standards for Criminal Justice, Fair Trial, and Public Discourse, 4th edition, 2016. 5. Analysis. While only the occasional case presents a danger of prejudice from pretrial publicity, this case, as recognized by the Idaho Supreme Court, has drawn widespread publicity garnering worldwide media attention and much speculation, and therefore pretrial publicity does present a real danger of prejudice. number 50482-2023-WL3050829 at Star 1, Idaho, April 24, 2023. Recognizing the high-profile nature of the case and extensive coverage it has received, along with the need to minimize possible pretrial prejudice,

the party stipulated to entry of the original non-dissemination order and the amended non-dissemination order and the amended non-dissemination order, as was noted by District Judge Stephen W. Boyce in his memorandum decision on ordering prohibiting video and photographic coverage in the case of State of Idaho v. Lori Noreen Vallow, a.k.a. Lori Noreen Vallow Daybell. Agreement between the state and defense on any issue in a capital case is rare, further confirming to the court the state and defense on any issue in a capital case is rare further confirming to the court the legitimacy and level of concern counsel have raised the same is true in this instance one this court has an obligation to take measures to ensure coburgers right to a fair trial

including proscribing potentially prejudicial extrajudicial statements by any lawyer participating in the case. Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by impartial jurors, and an outcome affected by extrajudicial statements would violate that fundamental right. This court also recognizes the, page 24, important role the press plays in the judicial system. A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. However, with the advent of the internet and social media, the tensions between the First Amendment and the Sixth Amendment continue to increase. As was outlined in Shepard, trial courts must take strong measures to ensure that the balance is never weighed

against the accused. In this case, the amended non-dissemination order, in place by the party's stipulation to protect Koberger's right to a fair trial, is not directed toward the press at all. Like in radio and television news, the amended non-dissemination order is aimed at attorneys participating in the case and their agents such as law enforcement. The U.S. Supreme Court has made clear that a trial court can prescribe extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters. By doing so, the trial court can help to ensure a trial free from outside influence without corresponding curtailment of the news media. Such restraining orders raise a

freedom of the press issue that is analytically distinct from prior restraints on the media. Non-dissemination orders that restrain the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press in Nebraska Press Association v. Stewart. Lawyers, page 25, have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice. In a case as high profile as this one, a non-dissemination order echoing the responsibilities of a lawyer found in the Idaho Rules of Professional Conduct

does not violate the attorney's First Amendment rights. The parties have a legitimate concern about information being disseminated to the media by way of attorneys participating in the case. Obviously, the state and the defense are privy to confidential information, but so too are attorneys representing a victim's family or a witness, as noted by the court in genteel. Because lawyers have a special access to information through discovery and client communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyer statements are likely to be received as especially authoritative. This concern was echoed by defense expert Dr. L. Alele, who opined that commentary by individuals with status slash expertise, e.g. police, attorneys, and judges,

in media coverage create more potential for biased jurors. Exhibit D, to defendants' objection to media's MOT to vacate the amended non-dissemination order. Membership in the bar is a privilege burdened with conditions. Requiring attorneys involved in the case to comply with IRPC 3.6, as echoed in the revised amended non-dissemination order, is not unreasonable and does not unconstitutionally impinge upon the First Amendment. This court has an obligation to help protect Koberger's constitutional right to a fair trial, and this is just one measure that the U.S. Supreme Court has endorsed in appropriate cases

to help ensure the Sixth Amendment is not violated. Thus, this court has the authority to restrain prejudicial speech by attorneys participating in the case. Page 26. 2. Strict scrutiny does not apply to the media's constitutional challenge of the amended non-dissemination order. When the media challenges an order restraining the speech of lawyers participating in a pending case, the court need only examine whether the restrictions imposed are reasonable and whether the interests of the government override the very limited incidental effects of the order on First Amendment rights. The restrictions imposed also must not serve an illegitimate purpose.

This is not strict scrutiny. The rationale for a lower standard of constitutional review is because the impact on the media is significantly different from situations where the media is denied access to a criminal trial or is restricted in disseminating any information it obtains. Strict scrutiny would apply in such a case. While the press does have a right of access or right to gather information with respect to criminal trials, that right is described only as a right to sit, listen, watch, and report. The media's desire to obtain access to certain sources of information that otherwise might be available

is not a sufficient interest to establish an infringement of freedom of the press in this case. As such, strict scrutiny does not apply. 3. The restrictions on the extrajudicial statements of counsel and their agents to the press are necessary to reduce prejudicial publicity and protect Koberger's right to a fair trial. The evidence presented by the defense shows that, one, media coverage in this case is rampant and ongoing. Two, at least some, if not most, of the news coverage is prejudicial to Koberger.

3. A portion of the statements being made to the media are coming from an attorney participating in the case. 4. Vacating the non-dissemination order would increase the potential for bias among prospective jurors, both initially and throughout the trial. And five, anti-defendant pretrial publicity increases the probability of guilty verdicts and that this bias persists despite the, page 27, page 27, receipt of trial arguments evidence and benitions to disregard the publicity information and jury deliberation. Commentary by individuals with status slash expertise, e.g. police, attorneys, and judges, in the media coverage create more potential for biased jurors. Exhibit D, to defend his objection to media's MOT to vacate the amended non-dissemination order. As currently drafted, the amended non-dissemination order is arguably overbroad and vague in some areas.

However, it doesn't serve a legitimate purpose and restricting the speech of attorneys participating in the case is reasonable. The very limited incidental effects of the speech restrictions on the media's First Amendment rights are overridden by the compelling interest in ensuring a fair trial by an impartial jury. Statements by counsel participating in the case on matters bearing on the merits of the case might impair the fairness of the trial or threaten the integrity of the judicial process. The amended non-dissemination order is not intended to conceal the workings of the criminal justice system from the public. The media is not restrained in any way and is free to attend

hearings and report on what they observe and hear. For these reasons, the media's request that the amended non-dissemination order be vacated is denied. However, because the amended non-dissemination order is arguably overbroad and vague, the court will issue a revised amended non-dissemination order to further clarify and narrow what speech by lawyers participating in the case and their agents is allowed and prohibited by giving specific examples. The revised amended non-dissemination order is narrowly drawn to prohibit only extrajudicial statements that have a substantial likelihood of materially prejudicing this case. The restriction on attorney speech applies equally to all attorneys participating in the pending case and The restriction on attorney speech applies equally to all attorneys

participating in the pending case and will restrict the attorney's comments only until after the trial and any sentencing proceedings. The regulation of attorney speech meets the page 28 less demanding standard set forth in genteel as well as strict scrutiny. The restrictions are necessary to protect Koberger's right to a fair trial and the fair administration of justice. As to the media's constitutional challenge, the restrictions imposed on attorneys participating in the case and their agents are not only reasonable and legitimate

considering the high-profile nature of this case, but also meet the strict scrutiny standard. Six, conclusion. The Associated Press request that the amended non-dissemination order be vacated is denied. However, the revised amended non-dissemination order will replace the amended non-dissemination order and will clarify and narrow the restrictions on speech and the individuals whose speech is restrained. So ordered this 23rd day of June, 2023, signed John C. Judge, District Judge. Crime Stories with Nancy Grace. In the District Court of the 2nd Judicial District of the State of Idaho

in and for the County of Latah, State of Idaho Plaintiff v. Brian C. Koberger, Defendant, Case No. CR29-22-2805, Revised Amended Non-Dissemination Order. As discussed in detail in this court's order denying Shannon Gray's request to be exempt from the amended non-dissemination order and granting requests that the order be clarified and this court's order denying the Associated Press's motion to vacate the amended non-dissemination order, the court must attempt to balance the

Sixth Amendment right to a fair trial with the First Amendment rights to free speech and free press. To preserve the right to a fair trial, some curtailment of the dissemination of information in this case is necessary and authorized under the law. Therefore, the following is ordered. 1. Prosecuting attorneys, defense attorneys, any agents of the prosecuting attorneys and defense attorneys, and any attorneys representing witnesses, victims, or a victim's family,

are prohibited from making extrajudicial statements, written or oral, that the, page 2, lawyer or agent knows or reasonably should know, will have substantial likelihood of materially prejudicing or otherwise influencing the outcome of the case this order specifically prohibits any out-of-court statement which a reasonable person would expect to be disseminated by means of public communication that relates to the following a the identity or nature of evidence expected to be presented at trial or any sentencing phase of the proceedings be any information a lawyer knows or reasonably should know

is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial jury. C, the character, credibility, reputation, or criminal record of a party, victim, or witness. D, the identity of a witness. E, the expected testimony of a party, victim, or witness. D. The identity of a witness. E. The expected testimony of a party, victim, or witness. F. The performance or results of any examination or test or the refusal or failure of the defendant

or a witness to submit to an examination or test. G. Any opinion as to the guilt or innocence of the defendant. H. The possibility of a plea of guilty to the offenses or any comment on any plea discussions. I. The existence of or contents of any confession, admission, or statement by the defendant or the refusal of the defendant to make any statement. J. Any information obtained by witnesses, the victim's families, or their attorneys from the state that is confidential and has not been publicly disclosed by the prosecuting attorneys. 2. Attorneys involved in the case and their agents, as outlined in paragraph 1, may make extrajudicial statements, written or oral, concerning the following. a. The claim, offense, or defense involved in, except, when prohibited by law, the identity of the parties involved.

B. Information contained in the public record. C. That an investigation is ongoing. D. The scheduling or result of any step in the litigation. Page 3. E. A request for assistance from the public in obtaining evidence and information necessary to the state's case or the defense's case. F, a warning of danger concerning the behavior of a person involved when there is a reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest. G, the identity, residence, occupation, and family status of the accused. H, the fact, time prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client, any such statement shall

be limited to such information as is necessary to mitigate the recent adverse publicity. 3. No individual covered by this revised amended non-dissemination order shall deliberately avoid its prescriptions by actions, directly or indirectly, that result in violating this order. 4. This revised amended non-dissemination order shall remain in full force and effect until the conclusion of a trial and any sentencing proceedings that may follow unless otherwise ordered by this court. So ordered this 23rd day of June, 2023, John C. Judge, District Judge. Nancy Grace, signing off. Goodbye, friend.

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