Every doctor takes the pledge: Do no harm.
It’s damn good advice for any trial lawyer too.
Go into the courtroom and say the wrong thing, or maybe don’t say the right thing; come in too hard-charging, or too deferential—screw up, and your client pays the price.
Especially when it’s a capital case.
And if it’s a death-penalty case in Idaho, the stakes are even higher.
A guilty verdict, and your client can wind up staring into the barrels of a dozen long guns, the final word he ever hears an unforgiving command: Fire!
And “justice” becomes just another word for all that has been lost.
On a bright spring afternoon earlier this month—April 10, 2024—in a numbingly gloomy courtroom in quaint downtown Moscow, Idaho, the now familiar teams of veteran legal belligerents who will eventually spar to persuade a jury of the guilt or innocence of Bryan Kohberger, the criminal-justice graduate student accused of the brutal stabbing murders of four college students in their off-campus house, faced off in another preliminary bout.
Since Kohberger’s arrest in December 2022, as the alleged killer of Maddie Mogen, Kaylee Goncalves, Xana Kernodle, and Ethan Chapin, the two sides had ploddingly traded a seemingly endless flurry of motions and counter-motions, and this encounter held the drab promise of one more dull legalistic give-and-take.
The ostensible purpose of the hearing, in fact, concerned the defense’s method for gathering statistics to gauge the bias of potential jurors. But it very quickly became clear that these numbers would ultimately be used to decide a more crucial issue: whether the trial should be moved from the small college town where the murders occurred to elsewhere in the state. And in the nearly three-hour skirmish that ensued, several stunning admissions were made that will in time undoubtedly affect the jury’s perception of Kohberger’s guilt.
Yet those weren’t the only harbingers of the free-for-all in store. Things got so out of control that the decidedly mild-mannered Judge John Judge (like a Joseph Heller character, by virtue of his family name he’s officially referred to as Judge Judge) sternly warned the attorneys to “take down the tone.” And the heretofore avuncular county prosecutor found himself apologizing in his folksy baritone for bringing an expert witness apparently to tears.
It was a day of surprises and emotions, with the promise of more to come.
A “Tainted” Jury Pool?
Some months earlier, the defense had hired a jury consultant to use a telephone survey to measure the bias against their client in the community where the crime occurred. Since 1972, when lawyers for the Harrisburg Seven (a group of Catholic anti-war activists who, the government charged, had plotted to kidnap Secretary of State Henry Kissinger) first hired social scientists to give them an inkling of what the locals were thinking, telephone surveys had been a widely accepted pre-trial practice.
And the underlying rationale in this case certainly seemed reasonable: Moscow, Idaho, was a speck of a town, perhaps 25,000 or so people, and about half of that number were associated with the university where the murdered students had been enrolled. Was it really a stretch to believe that most of them had heard about the case and already come to some sort of conclusion about the accused?
To get to the bottom of things, the defense team, which, since Kohberger pleaded indigent, is paid by the state, hired Bryan Edelman, a co-founder of the Oakland, California–based Trial Innovations. Edelman has a foot-long résumé of accomplishments and a Ph.D. in social psychology. For more than two decades, he has been the go-to expert witness evaluating the impact of pre-trial publicity on the jury pool and the need for a change of venue in a collection of headline-making cases, from the police shooting of 17-year-old Laquan McDonald to the water crisis in Flint, Michigan. And, no less significantly, testifying from the witness stand, he has displayed the not insignificant ability to unfurl all the quantitative mumbo jumbo with a breezy insightfulness that even a layperson (or a politically appointed judge) could follow.
Things got so out of control that the decidedly mild-mannered judge sternly warned the attorneys to “take down the tone.”
When Edelman launched his phone survey and began contacting some 400 potential Latah County jurors at random, the results confirmed the defense’s worst fears. Nearly everyone questioned had heard about the case, and the more details they knew, the more likely they were to believe that Kohberger was guilty.
Armed with these dismaying statistics, Anne Taylor, the dogged upstate legal-aid attorney who heads the defense team, was ready to set Edelman loose to explore public sentiment in other Idaho counties. The goal was to lay the groundwork for her demand that her client, who if convicted would be facing the death penalty, could have a fair trial only if the proceedings were held farther from the site of the killings.
But before she could proceed, Latah County prosecutor Bill Thompson, a longtime down-home presence in Moscow, an official known as much for his flowing white biblical beard, penchant for fleece vests, and his klezmer band (the Gefilte Trout) as for his string of courtroom victories, rushed in to put a stop to things. And he didn’t mince words. He charged that the “reckless” survey had “tainted” the jury pool. “The survey,” Thompson bellowed, “cannot stand.”
And the judge seemed to agree, telling the lawyers, “This is a big deal, and I take it very, very seriously. And I was surprised that this was happening behind our backs.” He promptly issued an order “prohibiting contact with prospective jurors” outside the court.
The problem, however, was not the telephone survey per se. It was the specific questions Edelman and his surveyors had asked.
There were nine questions, and, as Edelman explained when he took the witness stand on April 10, he had crafted them after reviewing hundreds of local news stories and television reports on the case. Some of the questions, which have not been officially released, were straightforward:
“Have you read, seen or heard that Bryan Kohberger was arrested at his parents’ home in Pennsylvania?”
“Have you read, seen or heard if police found a knife sheath on the bed next to one of the victims?”
“Have you read, seen or heard that DNA found on the knife sheath was later matched to Bryan Kohberger?”
But these and similar questions were not the big concern. Sure, Thompson argued that the phone survey “force-fed” information to potential jurors that they might not have otherwise known. Yet this was a bit of lawyerly posturing. After all, these questions were grounded in facts that had been firmly established in the 18-page probable-cause affidavit that had been triumphantly released by the authorities following Kohberger’s arrest—a document Thompson, facing a room crammed with journalists, had urged the media to disseminate “far and wide.” The charge of “poisoning” potential jurors with facts seemed pure Orwell, more suitable to a show trial in another city also named Moscow.
However, two questions in the survey were not based on information in the arrest warrant. When they were discussed, they sent shock waves through the courtroom that are still being felt.
“Have you read, seen, or heard if Bryan Kohberger stalked one of the victims?”
“Have you read, seen, or heard if Bryan Kohberger had followed one of the victims on social media?”
These statements are often cited as facts in news reports and on the Internet. But now in the courtroom, both the prosecution and the defense conceded for the first time that there is no evidence that Kohberger had stalked any of the victims. And this frank admission rattles the underpinnings of the case against Bryan Kohberger to its very core.
Thompson was in the midst of a pounding cross-examination of Edelman, determined to make the point that the defense had violated the judge’s long-standing gag order prohibiting comments about the case, when it slipped out.
“Mr. Kohberger allegedly stalked one of the victims,” he attacked, referring to one of the questions in Edelman’s telephone survey. “That’s false. You know that to be false…. And your surveyors put the false information into the minds of people who were asked that question who may not have previously heard it.”
Edelman responded that his “focus is to assess whether or not media coverage is prejudicial.” And the stalking stories, according to his research, had clearly resulted in potential jurors forming opinions. Quick with the numbers, he detailed that nearly half of those interviewed had believed that Kohberger had stalked one of the victims. And 81 percent of those who had accepted the stalking reports as fact had no doubt Kohberger was guilty. “It doesn’t matter if it’s true or not,” Edelman said.
Both the prosecution and the defense conceded for the first time that there is no evidence that Kohberger had stalked any of the victims.
But while the ethics of this argument were strained, it was Edelman’s reaction to the relentless interrogation that proved to be the attention-grabber: this gray-haired expert witness who, by his own count, had testified in “hundreds” of trials started to cry. At least it seemed that way to me, watching the proceedings on Zoom. As Taylor attempted to restore his credibility, Edelman’s eyes appeared to well up. And I wasn’t the only one who noticed. Later in the hearing, Thompson, clearly contrite as well as surprised, apologized for his part in bringing the witness to tears. “I’m not crying. I’m angry,” Edelman protested. But I wasn’t convinced.
This bit of melodrama might have diverted the court from Thompson’s game-changing admission. But then Elisa Massoth, another member of the Kohberger legal team, reiterated that the widespread reports of the accused’s stalking were simply not true. Her argument, however, was that the U.S. Supreme Court had established case law that justified using media reports with false information in analyzing local bias.
The judge agreed to rule on whether telephone surveys can continue, and this week he decided they could. A hearing has been set for June 27 to hear the arguments for and against a change of trial venue. But it’s now clear that regardless of whether potential jurors are polled, or where the trial takes place, the case against Bryan Kohberger has suddenly grown a lot shakier.
Why? Why would a graduate student at a school across the state line in Washington show up at a house in Moscow and savagely murder four students in the wee hours of the morning? For such a horrific crime to make sense, there had to be a reason. A motive. There had to be a narrative convincing enough not just to persuade a jury that the right man had been caught but also that the state would be justified in sending the convicted killer off to his death.
In their arrest warrant, the prosecution had documented all the times—14 in total—Kohberger’s cell phone had pinged a cell tower in the King Road neighborhood during the months before the murders, and, no less incriminatingly, it was claimed by the Moscow P.D., in the early morning just hours after the murders had occurred.
Only now the prosecution was conceding that there was no evidence that Kohberger had stalked any of the victims. And this was a tacit admission that all their previously vaunted cell-tower data was pretty worthless. Cell towers, after all, can place a pinging phone within only about a 12-mile radius of the site. In a town such as Moscow, that sort of distance takes in a lot of possible locations. Being in the neighborhood is not at all the same as being at an exact address on King Road. And if there is no evidence that Kohberger stalked any of the victims, the case against him is built on a whole lot of maybes.
For there is no motive.
There is no proof that Kohberger was at the wheel of the white Hyundai spotted on surveillance cameras on the night of the murders.
There are no fingerprints or bloody clothes linking him to the crime.
There is no murder weapon.
The DNA that, according to the supremely confident arrest warrant, conclusively establishes Kohberger’s guilt is actually “touch” DNA, genetic material left by the brush of a finger rather than more authoritative blood residue. And defense attorneys over the years have had a field day punching holes in the often flimsy certitudes produced by this second-class genetic identification.
And if it’s all a lot of maybes, well then maybe Kohberger will walk off a free man.
A Confidential Source?
Yet there is, it seems, one more maybe in this case. It, too, was broached at the April 10 hearing, only the conversation between the judge and opposing attorneys was likely conducted after the Zoom camera was shut off and the courtroom was cleared of spectators. Secrecy was necessary because lives were at stake.
That was what Kohberger’s defense team had ominously warned when they filed an extraordinary motion a week earlier, requesting that their discovery information be placed under seal because “the document contains facts or statement that might endanger the life or safety of individuals.”
In other words, what these “individuals” know about the case might get them killed.
That sure sounds like Taylor is planning on producing a surprise witness or witnesses. And it holds out the promise of the sort of powerful testimony that could upend the state’s case.
And, no less perplexing, the prosecution seemed to agree that a deus ex machina was hovering over the proceedings. They responded to Taylor’s cryptic motion by stating that the release of discovery evidence could “disclose the identity of a confidential source.” A confidential source?
Both teams of attorneys seem to be hinting that there is someone sitting on the sidelines who has a secret knowledge of what really happened in the house on King Road. It’s a potential revelation that, so far, they’re only willing to discuss with the judge behind closed doors.
What are they hiding? What could this testimony reveal? The answer, I fear, will be divulged only at the trial.
Both teams of attorneys seem to be hinting that there is someone sitting on the sidelines who has a secret knowledge of what really happened in the house on King Road.
Whenever there is a trial, that is.
At the hearing earlier this month, Anne Taylor moaned to the court, “At this rate we may never get to trial.” I couldn’t help thinking it was as much a wishful prayer on her part as it was an expression of frustration.
Sure, Taylor never misses a chance to announce her belief in her client’s innocence. In fact, when she made that fervent proclamation at the April 10 hearing, she reinforced the sentiment by placing her hand protectively on the defendant’s shoulder. (The gesture seemed, to my eye at least, to produce no discernible reaction at all from the accused; Kohberger, his face as stolid as a mourner’s, in fact sat expressionless throughout the entire three-hour proceeding, his eyes fixed with the vacant stare of someone who might be on a steady diet of downers.) Taylor’s uncompromising support was seconded by her fellow defense attorney, Massoth, who announced that it was a “privilege to defend” Kohberger.
But they never articulated a formal argument for his innocence—that is, until last week. On April 17, in response to a demand by the state, they provided his alibi. And it was a dismayingly thin one: Kohberger, according to the defense, had been out stargazing during the wee hours of the morning when the murders had occurred. Partial corroboration, the filing promised, would come from an expert witness who would impugn the government’s cell-phone data. Yet this expert’s company had been brought to task by a Colorado judge in a recent case; “a sea of unreliability” was how a judge appraised its cell-phone mapping.
More consequential, I believe, was the pointed assertion buried toward the end of the defense’s filing. It noted that “critical exculpatory evidence” was “either not preserved or has been withheld.”
This is, I believe, more indicative of the tactical game the defense is actually playing. After 18 months of legal motions, of hearings that end with still more hearings scheduled, of indignant demands for mountains of discovery materials that only result in still more requests, I cannot help but feel the defense’s unarticulated strategy is delay, delay, delay. If you truly knew your client was innocent, wouldn’t you be shouting a detailed alibi from the rooftops rather than letting him linger in a jail cell for a year and a half? Wouldn’t you be moving heaven and earth to let the world know that the wrong man was behind bars? That the killer was still on the loose?
I also believe that Taylor’s strategy of trying to get the trial moved out of Latah County is a mistake, and a dangerous one to boot. Yes, a change of venue will buy the defendant more time, but for what ultimate purpose? A Moscow jury, regardless of what the telephone surveys might suggest, offers him, I’m convinced, the best chance of beating this rap.
Because there’s something that Edelman, the learned statistician and social psychologist, is not measuring. That’s the allegiance of many people in Moscow to Pastor Doug Wilson’s Christ Church. The Kirkers, as the Christ Church parishioners proudly call themselves, number about 2,000, and that’s a significant percentage of the Moscow jury pool, especially when it’s very likely that anyone associated with the university will be peremptorily struck as potential jurors.
And the church, as personified by Pastor Wilson, is in a state of war with local officials. Arrests and court cases against church members (including Pastor Wilson’s son and grandson) for their activities in protest of pandemic restrictions have deeply frayed relations with Moscow authorities.
“You’d think we’d be a natural constituency for ‘Back the Blue,’” he told me during a conversation in his book-filled office, in downtown Moscow. “But after what we have experienced, I think that if any of my parishioners are on the jury, I’d tell them to go in with an open mind.”
Or perhaps not too open. For the pastor, his tone steady, redolent of a clearheaded reason, went on to explain that if a Moscow cop were to testify against Kohberger, his parishioners would have good cause to be skeptical. “After all,” he said, still bristling over the court cases involving church members, “we know their officers have lied on the stand before.”
But for now, there is only delay. When the judge talks about scheduling the trial, all the potential dates are a year in the future, and none have been offered with any genuine conviction. There is no telling when Bryan Kohberger will have to face the judgment of a jury of his peers.
And until that distant day, the many individuals affected by the case remain a congregation of the victimized, a woeful assembly gripped by the constant pain of unsatisfied emotions.
Tell me, how long should they have to wait?
Howard Blum is the author of several best-selling books, including the Edgar Award–winning American Lightning: Terror, Mystery, the Birth of Hollywood, and the Crime of the Century. His latest, When the Night Comes Falling: A Requiem for the Idaho Student Murders, will be published in June by HarperCollins
