Idaho student victims’ families decry ‘delay game.’ Court appeal could pause murder case

Public defenders for the man charged with murdering four University of Idaho students continue to press their case that a grand jury cannot indict a defendant unless its members reach the same legal threshold as a conviction at trial, beyond a reasonable doubt, and have appealed the issue to the Idaho Supreme Court.

The development came to light last week at a pretrial hearing for Bryan Kohberger when the judge overseeing the case again held off from setting a trial date. State prosecutors and Kohberger’s attorneys once more asked the Latah County judge to schedule the trial for next year, but it could be delayed further if the state high court takes up the defense’s case.

Kohberger, 29, is accused of killing the U of I students at an off-campus house in Moscow in November 2022. The victims were seniors Madison Mogen and Kaylee Goncalves, both 21, and junior Xana Kernodle and freshman Ethan Chapin, both 20.

Prosecutors intend to seek the death penalty for Kohberger if he is convicted.

Judge John Judge of Idaho’s 2nd Judicial District twice denied the defense’s argument that a grand jury indictment should be based on the higher legal standard of beyond a reasonable doubt, rather than the longstanding practice of probable cause. During three days of proceedings in May, the 16 grand jurors unanimously indicted Kohberger on five felony charges, including four counts of first-degree murder, according to court records.

Judge denied the defense’s petition to toss the indictment in December, before rejecting it again a month after. The defense also asked Judge for permission to appeal to a higher court, which he declined a week later.

“That decision was put out quite a while ago, it’s rooted in well-settled law and I think it was correct,” Judge told the court at the January hearing. “If I deny it, the Supreme Court can still pick up the appeal. That’s up to them. But they do look at what the district judge’s opinion (was) and that may have some bearing on that. I hope so.”

Under Idaho appellate rules, attorneys may still appeal a lower court judge’s denial within 14 days. Prosecutors have opposed throwing out the grand jury’s indictment of Kohberger throughout the process.

Kohberger’s attorneys submitted their appeal to the Idaho Supreme Court under seal in early February, according to filings obtained by the Idaho Statesman from the state court system. Prosecutors filed their objection Feb. 20, also under seal, meaning the public is not entitled to review their contents.

Edwina Elcox, a Boise-based criminal defense attorney, said such an appeal is rarely filed, in part because the chance of succeeding is “slim to none.” The grand jury legal threshold argument was novel in the trial court, but raising it to the appellate level is an entirely different matter, she said.

“Look, there is a legal avenue for them to do this,” Elcox said in a phone interview with the Statesman. “Just because it’s likely not going to be successful doesn’t mean that it is frivolous. … It’s not a winner, but they’re doing what they can, and they should.”

Appeal could further delay trial

At last week’s hearing, Judge asked each side for a status update on the grand jury indictment appeal to the Idaho Supreme Court as he weighed when a trial in the capital murder case might be possible.

“We’re just waiting to hear from the Supreme Court. I can tell you there’s no deadline to rule for them,” said Idaho Deputy Attorney General Jeff Nye, for the prosecution.

Based on his experience, he added, the state high court can take a couple of weeks to roughly a month to decide. If the Supreme Court accepts the case, however, it could pause the current proceedings from advancing toward trial, Nye said.

Judge again chose not to set a trial date last week. But he did move forward with setting new deadlines in the case: April 17 for Kohberger’s alibi defense; Sept. 6 for the state to turn over all discovery to the defense; and Jan. 9, 2025, for defense attorneys to turn over all discovery, including evidence to offset the death penalty if a jury convicts their client.

He also scheduled a May 14 hearing to consider the defense’s request for a change of venue, which prosecutors oppose.

In a statement obtained by the Statesman through attorney Shanon Gray, the Goncalves and Kernodle families voiced disappointment that a trial date continues to be elusive. Kohberger was arrested more than 14 months ago.

“We just want justice for our loved ones,” the statement read. “We want to start healing, we do. We want to find justice and try to move on from this horrible tragedy, so please, please, start making some decisions, get to work and quit playing the delay game.”

Judge acknowledged his own frustration about waiting to hold the trial until next year, as each side suggested.

“I’m not really happy about setting a trial in 2025. It seems so far away,” Judge said. “It doesn’t just affect Mr. Kohberger and his defense. But there’s a lot of other considerations, so I am trying to be fair and realistic, OK, about when we can really be ready for trial.”