Kohberger murder trial judge will hear grand jury challenges mostly out of public’s view

MOSCOW (Idaho Statesman) — Attorneys for Bryan Kohberger, the man charged with murdering four University of Idaho students last fall, will argue at hearings Friday that their client’s indictment by a local grand jury should be thrown out on several procedural grounds, but only one of which will be debated in public.

Kohberger’s defense team in July filed a request to dismiss the indictment for what they contend was an error in the instructions given to the grand jurors. A month later, they submitted another filing to the court that cites four more legal challenges of the indictment that pushed the capital murder case to trial.

The procedural concerns Kohberger’s public defense raised last month include claims of grand jury bias, as well as the use of improper evidence and a lack of sufficient evidence to indict. The defense also alleged misconduct by the prosecution over its withholding of evidence from the grand jury that the defense says would disprove Kohberger’s guilt.

The defense filed those four follow-up challenges to the indictment under a court-approved seal, which keeps the details of the arguments hidden from the public. The prosecution’s objection also was held under a court seal.

Already, the use of a grand jury by state prosecutors is an intentionally secretive process. Defendants, their attorneys and the public are not permitted to attend. In turn, the defense is unable to cross-examine witnesses or object to certain evidence.

Latah County Prosecutor Bill Thompson sat the grand jury exclusively to review the Kohberger case, and it was presided over by retired Judge Jay Gaskill, previously of Idaho’s 2nd Judicial District in Nez Perce County, according to court records. Under Idaho law, only 12 of the 16 selected grand jurors must support indicting a defendant.

The grand jury met over three days and indicted Kohberger on May 16, the court records showed. He was arraigned on May 22, when he stood silent and declined to enter a plea, leading Judge John Judge of Idaho’s 2nd Judicial District in Latah County, who is overseeing the case, to default to not guilty.

The indictment vacated Kohberger’s scheduled June preliminary hearing, where a judge otherwise determines whether probable cause exists to move a case to trial. If the grand jury challenge is successful, the case likely would revert to a preliminary hearing, an alternative the defense offered in the challenge to the grand jury instructions.

Kohberger, 28, is accused of stabbing to death the four U of I students at an off-campus Moscow home in November 2022. The victims were seniors Kaylee Goncalves and Madison Mogen, both 21; and junior Xana Kernodle and freshman Ethan Chapin, both 20.

At the time, Kohberger was a graduate student in Washington State University’s criminal justice and criminology department. WSU is located in Pullman, about 9 miles west of Moscow.

Kohberger is charged with four counts of first-degree murder and one count of felony burglary. Prosecutors intend to seek the death penalty if a jury convicts him.

Kohberger’s attorneys, in their argument against the instructions received by the grand jurors, asserted that the standard of proof in the Idaho Constitution demands the same level as a conviction at trial: beyond a reasonable doubt. Historically, the language has been interpreted to require the lower legal threshold of being more likely guilty than not, or what is known as probable cause. The same legal threshold is required to obtain a search warrant or make an arrest.

Jay Logsdon, one of Kohberger’s public defenders, in the defense’s filing implored Judge to rule for his client, which would support Idaho’s past efforts at “adopting reforms to the grand jury system intended to restore to that system its function as bulwark for freedom.”

Edwina Elcox is a Boise-based criminal defense attorney who formerly served as an Ada County deputy prosecutor. She commended the creativity of Kohberger’s public defenders in filing the legal threshold challenge but voiced doubts it would succeed.

“Obviously, it’s thoroughly researched and is a novel legal argument,” Elcox told the Idaho Statesman in a phone interview. “But this is a loser motion before this court, and that’s the reality of the situation.”

The defense’s argument was unlikely to prevail at least in part because it would overturn the longstanding legal standard for an indictment, retired Idaho Supreme Court Chief Justice Jim Jones previously told the Statesman. He described the effort as “some kind of Hail Mary thing.”

Judge will hear those arguments Friday afternoon. The defense’s other four legal claims aimed at tossing the grand jury indictment, however, will be debated during a morning session that is closed to the public, at the defense’s request and with no objection from prosecutors, court records showed.

All grand jury records, including transcripts and the jury selection list, are typically filed under court seal. The day after the indictment, Thompson also obtained a court order from Magistrate Judge Megan Marshall, who handled the Kohberger case in its early stages, to seal the names of the witnesses who testified before the grand jury.

At least two of the victims’ families recently voiced frustration about how information about the case has been released to the public as they advocated for maintaining cameras inside the courtroom. Judge has yet to issue his decision from a hearing on the matter last week.

Shanon Gray, attorney for the Goncalves family, issued a statement to the Statesman on behalf of his clients, as well as some members of the Kernodle family.

“This case is surrounded by secrecy. Everything is either sealed or redacted,” which leads to speculation, the statement read. “That speculation is fueled by the secrecy surrounding everything that is filed and every hearing that is closed off to the media and the public.”

The inherently secretive nature of grand juries makes assessing the potential at successful challenges difficult, Elcox said. But she questioned the need to restrict public access for the entirety of the hearing on the defense’s four more recent claims, given some are legal arguments over process.

“If the challenges are to individual grand jurors, then I can see the need to protect identities,” she said. “I can at least understand the theory behind that portion of it. But if they’re challenging irregularities like the prosecution did something wrong, I don’t know why you’d want that sealed.”

Even so, of the four arguments that the public won’t get to watch — and not knowing the specifics of the evidence-based challenges — Elcox said the defense’s best possible chance of overturning the indictment would be assertions of bias from the local grand jury.

“That’s where it’s likely going to be because you’re dealing with an extremely small community, where a large portion of revenue and employment is literally centered around that college,” she said. “Getting an unbiased, neutral grand jury in that county just on face value would be extremely difficult. So if I had to pick a horse to bet on, it would be that one.”

Even if Judge rules in favor of the defense on any of its five arguments, the state’s prosecution of Kohberger is not going away, Elcox said.

“Even if they were successful, all is not said and done here,” she said. “Per the defense’s own request, their alternative remedy is to remand it for a preliminary hearing, which also is a probable cause hearing.”