Idaho justices rule against news outlets, uphold gag order in Moscow homicides case
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Kevin Fixler, Idaho Statesman
MOSCOW (Idaho Statesman) — The Idaho Supreme Court ruled Monday against the legal petition brought by more than two dozen media outlets, including the Idaho Statesman, to void the wide-ranging gag order issued by the judge overseeing the case against Moscow homicide suspect Bryan Kohberger.
Attorneys representing the news consortium said they’ll press forward and continue pursuing the complaint.
By unanimous decision, the justices ruled the petitioners had established the necessary standing to file a legal claim. However, they wrote that the group should have first sought remedy in Judge Megan Marshall’s 2nd Judicial District Court in Latah County before bringing the case to the state’s Supreme Court.
“By failing to pursue a remedy from the magistrate court before pursuing an extraordinary remedy from this court, petitioners have forgotten that we are ‘the court of last resort in Idaho’ — not the court of first resort,” read the opinion signed by Justice Gregory W. Moeller, with the four other Idaho justices concurring.
The ruling dismissed the media outlets’ attempt to vacate the gag order, which Marshall issued on Jan. 3, barring attorneys for the defense and prosecution and members of law enforcement from commenting about the case outside of court documents. Marshall argued the nondissemination order was needed to preserve the Kohberger’s right to a fair trial.
On Jan. 18, Marshall expanded her order to include attorneys for all witnesses, victims or family of the victims.
“There is balance between protecting the right to fair trial for all parties involved and the right to free expression as afforded under both the United States and Idaho Constitution,” she wrote. “To preserve the right to fair trial, some curtailment of the dissemination of information in this case is necessary and authorized under the law.”
Led by The Associated Press and including The New York Times, Washington Post, Society of Professional Journalists and a dozen Idaho media groups, including the Statesman and EastIdahoNews.com, the petitioners filed the lawsuit with the Idaho Supreme Court in February. They argued the gag order was overly broad and infringed upon free-speech rights protected under the First Amendment.
The Latah County Prosecutor’s Office, which is prosecuting the case against Kohberger, and the Kootenai County Public Defender’s Office, which is defending him, joined in opposition of lifting the gag order. They separately argued that the news outlets should have brought the matter before Marshall’s court first, and that the concerns they raised did not rise to infringing on First Amendment rights.
“Mr. Kohberger is on trial for his life,” wrote Jay Logsdon, one of Kohberger’s attorneys, and the chief deputy of the Kootenai County Public Defender’s Office. The Idaho Supreme Court “should not relegate him to seeking redress for prejudicial media coverage in other forums.”
Moeller’s 15-page opinion agreed with the first point that the news outlets should have filed their initial petition in the 2nd Judicial District Court, because “extraordinary circumstances” did not warrant the justices intervening. But the opinion also stated that attorneys for the news consortium had, in fact, “sufficiently alleged an injury in the form of a diminished ability to receive speech and effectively gather news.”
By rule, the Idaho Supreme Court may choose to “alter, shorten or eliminate any step or procedure” in the appeal process if the justices establish “extraordinary circumstances.” Their decision Monday indicated the arguments laid out by the news outlets’ Boise-based attorneys with law firm Stoel Rives did not meet that threshold.
“While we are disappointed that the court denied the petition, the media coalition now has a clear path under Idaho law to challenge the gag order and vindicate these important First Amendment rights,” attorney Cory Carone said in an emailed statement to the Statesman.
The Latah County Prosecutor’s Office and the Kootenai County Public Defender’s Office didn’t immediately respond to the Statesman’s requests for comment.