Bryan Kohberger Appears In Court To Get Grand Jury Indictment Dismissed—Judge Says No But Yes To Cameras
Idaho college student murders suspect Bryan Kohberger appeared in court to get his grand jury indictment dismissed, which the judge refused, while allowing cameras in the courtroom.
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00:00 We think that the legislature is being a little too protective of its people here,
00:06 and we're going to move down the standard of proof for the government in this particular case,
00:11 or one party versus the other.
00:13 Typically, in this country, we try to protect the Jews,
00:17 and we believe that those protections are given to us via the Constitution,
00:21 and via these concepts of due process that come to us through the Common Law,
00:27 which is where this gets so messy, because the Common Law would tell you that it's a probable cause,
00:32 and it's some guy in the field in New York who's telling you it should be something else.
00:37 Well, we could get into all of that, but it would be, I think, more philosophical than anything else,
00:46 because the state of Idaho didn't do it that way.
00:49 The state of Idaho, as a territory, adopts a bunch of codes out of California,
00:54 a code that they've already looked at, a code that they've already said,
00:58 "These words clearly mean something more than probable cause.
01:02 This is what you're adopting if you come and get it."
01:05 The state of Idaho goes and gets it and adopts it.
01:08 So that's what the state of Idaho was adopting.
01:11 I obviously recognize that the founders that wrote the Constitution did not appear to recognize
01:18 what was already on the books in this regard.
01:21 However, just because they didn't recognize that doesn't mean it's not still part and parcel of what was thought to be true
01:31 by a large portion of the citizens of Idaho, or the actual ones who ratified the document.
01:36 The only thing we know is that from 1890 to Edmondson, the Supreme Court of Idaho,
01:47 was repeatedly admonishing prosecutors to stop using a beyond reasonable doubt standard for a grand jury.
01:53 That, it seems to me, is pointing to this concept that we're going to talk about, common practice.
01:59 Common practice looks to have been that everybody thought the standard for the grand jury was beyond reasonable doubt.
02:06 I don't think this is worthy of the parade of nightmares that I've been reading about.
02:16 Obviously, in each one of those cases, the prosecutor was able to pull it off.
02:21 And who would have wondered?
02:24 It's still a grand jury proceeding.
02:26 It's still just the prosecutor in a room with 16 citizens, 12 of which have to agree.
02:32 They get control over basically everything that's being put on.
02:36 The guardrail is being put in.
02:38 "Hey, let's use admissible evidence."
02:40 "Hey, let's not pull in hearsay witnesses."
02:43 That kind of thing is not going to somehow make this impossible and make it so that it can't possibly work.
02:51 What it's intended to do is just make it so that if you're in a position to get an indictment against somebody,
03:01 you're going to put it on your A-game.
03:04 Obviously, we've been talking a bit about how we don't think that that's what occurred in this particular case.
03:09 And we certainly don't think that if the court were to adopt this particular case,
03:14 that this would even remotely cut the mustard because we know from the grand jurors that at least six of them
03:21 wanted to hear more until they were essentially cut off and told probable cause is the standard and wanted people to do it.
03:26 You probably should cut that, what the grand jurors did or didn't do.
03:34 Fair enough, but I'm just pointing out that there's clearly a lot of people who are going to be in the room with me.
03:38 I'm just pointing out that there's clearly prejudice in the record that the court can see from what they were being instructed.
03:46 It's also, as we argued, clearly going to be fundamental error.
03:51 You tell the grand jury that this is the standard and it's actually something else.
03:57 You can't possibly think that the result that you're getting is the accurate one, and so you have to do it again.
04:03 These are fundamental rights that people have, so clearly that would be a way to go.
04:07 Right, but you just agreed that the court and the case law, going back to at least Edmondson,
04:16 have the standard as probable cause.
04:21 So to just say, well, they were given the wrong instruction is not exactly the case.
04:32 That is the standard that has been used in Idaho for years, maybe a hundred years.
04:40 It was different there for a period of time, but after Edmondson, I thought that it was pretty much settled.
04:51 Now I understand the argument between substantive and procedural, and that can be a legitimate argument,
05:03 but I'm not sure it's fair to just say, well, they were given the wrong instructions,
05:12 if everybody's using that instruction throughout the state.
05:19 Well, Your Honor, if that were true, then I'm not really sure what I'm doing with my life,
05:24 because I've spent much of it arguing that things that everyone in the state is doing are just wrong.
05:29 And occasionally, rarely, but occasionally, somebody says, no, no, that guy's right, and my client walks out of prison.
05:39 Well, that's fine. You can make an argument that something should change,
05:45 but are you telling me that other places in the state are giving a different instruction,
05:53 that it should be beyond a reasonable doubt?
05:56 What I'm telling you, Court, is that it appears that up until 1980, that was true.
06:01 And so the Supreme Court enters its rule, sort of has this ruling that talks about that,
06:08 but nobody's arguing about it because they don't have access to the Internet,
06:12 and nobody has a copy of the field code, or what California was up to.
06:16 Well, Justice Beisselein argued about it in a dissent in Edmondson.
06:23 And we thank him for it, although--
06:26 If you go back--
06:27 You can't say that there hasn't been an argument about it.
06:29 Well, well, well, no, no, no. If you go back and you read what Justice Beisselein did,
06:34 Justice Beisselein didn't know about the field code. He knew it came out of California.
06:39 He knew that it meant something different.
06:41 I think it's attached on the dissent.
06:44 Some of that.
06:46 No, California--
06:47 That's the earlier session.
06:50 He has the California code, and he has the stuff from the territories.
06:53 That's what he's got. But he doesn't know--
06:56 I mean, if you read the field code, which apparently nobody did,
07:00 except Justice Beisselein in California,
07:04 if you read it, it literally tells you what it's trying to do.
07:07 It spells it right out.
07:08 And you can find it for free on Google Books, which is where I went.
07:12 I don't have a copy. I'm not even sure where you find it.
07:14 But except for Google Books, you can find this thing.
07:17 And they had a whole preamble to how--
07:22 They're trying to save the concept of the grand jury.
07:24 They want it to be better than what it is.
07:26 They understand people have concerns about it. Let's make it better.
07:29 And it gets adopted in California, and then we took it from there.
07:33 And then that's what I think should matter.
07:35 And the fact that the plain language of the statute is being read by every prosecutor in the state
07:39 up until the '80s when the Supreme Court finally gets them to stop--
07:43 Because the statute's relatively clear.
07:46 And so the only person who's pushing back against this
07:50 are these ad hoc Supreme Court justices that don't like it.
07:52 But there's nobody coming to them and saying,
07:54 "Here's a copy of the field code. This is where the stuff comes from."
07:56 This was the point.
07:59 Instead, there's just this concern that who could possibly want such a thing?
08:04 How would we be safe if our communities are only able to indict people beyond reasonable doubt?
08:11 It's just too much. It's too high a stake.
08:15 That's hard to believe, given how many of these cases are making it up,
08:20 because they were convicted.
08:22 There's no reports anywhere that I was able to find
08:26 that in the state of Idaho, all these prosecutors were mistakenly using beyond reasonable doubt.
08:30 There's just no indictments going on.
08:32 Nobody was going to prison. Nobody was getting the death penalty.
08:35 It was a free-for-all, and we had posses riding around and having to deliver justice
08:41 because the standard was too high at the grand jury proceeding.
08:45 But that's not what was occurring.
08:48 All you had was a perfectly well-running system.
08:52 You had Supreme Court justices that were not aware of where this stuff was coming from.
08:59 If somebody had come to them and said it, we'd have a ruling on it.
09:02 But nobody did.
09:04 In fact, we don't have really any state that's ever done the heavy work of this.
09:10 You've got the New York Court of Appeals.
09:13 It's about the only one that was aware because it happened there.
09:16 And they've kind of let it drain away over time.
09:21 Well, other states can do what they want.
09:24 They can pass new statutes. Their constitutions are older than ours, etc.
09:29 Our constitution was written in 1890.
09:32 So it's going to lock in what the people thought that they had as their law,
09:36 and what they considered to be their standard of due process at that time.
09:40 And the only history we have is you've got the Supreme Court saying,
09:45 "You don't have that right. You've got a bunch of prosecutors of all people thinking that we do."
09:50 And that's what you're looking at.
09:53 The fact that the rest of the country is off doing other things I don't think necessarily matters.
09:57 What matters in terms of the courts, the courts have to read plenty of language of the statute.
10:03 The court has to consider the fact that at the very least California knew what it was up to.
10:10 And that even if the people who wrote our constitution didn't know what was going on,
10:16 that doesn't mean that the people who wrote the Idaho Revised Statutes in 1887
10:21 didn't know what they were signing on for.
10:24 Whether or not they were sitting up the constitutional conventions is something that I put enough effort into to figure that one out.
10:32 But I don't think it necessarily answers the question.
10:39 Anyway, I think the only other thing I wanted to touch on was how by agreeing with me,
10:48 the court is able to save the indictment by turning it into a presentment.
10:58 As a presentment, there's a lot laxer evidentiary rules and everything else.
11:06 The complaints we would have about it essentially disappear and the state has its presentment.
11:12 As far as I'm told, one of the reasons why we had a ranger in this case is because in another case,
11:18 I had argued that if you don't do a ranger, you can't have the death penalty, which I still believe.
11:23 But if you have a presentment, that's also listed.
11:27 And so the state still gets what it wants.
11:30 And we get a preliminary hearing, which it seems to me would be worth the candle for us.
11:37 I think there was some instruction about present for the grand jury.
11:47 Was it not? They were given that option?
11:51 Well, I think they were told about it.
11:53 So I don't know. I can't find a single presentment in the history of Idaho,
12:00 so I don't know if they've really ever been used.
12:04 I hadn't really even thought about what they are and what they meant until taking up this argument.
12:11 But from what I could tell, going back to the field code and looking at everything else in the statutes that we have on hand,
12:17 I mean, essentially it's like grand jury like.
12:20 Typically for the presentment, the idea for who is getting the presentment seems to come from the grand jury members themselves.
12:28 They just come in with some information about somebody.
12:31 They make an accusation like it's a complaint, and then it goes off and gets treated more like a complaint than it does.
12:40 I don't know if the court found anything otherwise.
12:43 That's the way that it appears to supposed to work.
12:46 Like I said, I don't know if anybody's ever done one.
12:49 But I do think that what the state accomplished in the indictment in this proceeding would easily meet the requirements of the presentment.
12:59 And I don't think we would have any real ability to argue with them.
13:03 The grand jury itself can just come in and say, "These are some facts I heard from my neighbor,
13:09 and I think that guy committed a crime, and that's enough to start the rules of justice."
13:15 I'm relatively certain we've met that requirement.
13:19 So if the court does that, then the state still has a piece of paper that says the death penalty can be sought
13:28 in the Fifth Amendment of the United States Constitution,
13:31 and a preliminary hearing would be offered to give us the ability to take a closer look at this case
13:38 than what was given at the actual grand jury.
13:41 So, you know, and then everybody can win.
13:45 I do have that as an option for the court.
13:48 Does the court have any questions?
13:52 It looks like you might.
13:54 I might on your reply.
13:56 Okay.
13:57 We'll see.
13:58 Thank you.
13:59 Thank you.
14:00 Mr. Nye?
14:01 Thank you, Your Honor.
14:09 As much as I enjoy the relics of legislative history, as a trial attorney, you usually have a shortcut.
14:16 And that is to check to see if the Idaho Supreme Court has ruled on the issue,
14:20 and in this case it has, multiple times.
14:23 So in Edmondson, the Supreme Court said, and I quote,
14:27 "The purpose of the grand jury proceeding is to determine whether sufficient probable cause exists
14:32 to bind the defendant over for trial.
14:34 The determination of guilt or innocence is saved for a later day.
14:37 As long as the grand jury has received legally sufficient evidence,
14:40 which in and of itself supports the finding of probable cause,
14:43 it is not for an appellate court to set aside the indictment."
14:47 This court is bound by that holding.
14:50 The Idaho Supreme Court applied that holding in two subsequent cases.
14:55 Martinez and Jones both cited in my brief.
14:58 The Court of Appeals has applied that holding repeatedly.
15:01 This court is also bound by its holdings.
15:04 The only other thing I would add is, to summarize Mr. Ladison's argument,
15:10 Idaho law supports it as long as you ignore the Idaho Supreme Court.
15:15 California law supports it as long as you ignore the California Supreme Court.
15:19 Idaho's constitutional history supports it as long as you ignore the founding fathers.
15:23 I could go on, but there's nothing to see here.
15:27 The Idaho Supreme Court has ruled on this, and this court is bound by it.
15:30 The Idaho Supreme Court has ruled on this, and this court is bound by it.
15:33 Unless the court has any questions, I'll resume my brief.
15:36 Thank you, Mr. Knight.
15:37 Thank you.
15:38 Okay, Mr. Lodgson, do you want to add anything else?
15:42 Well, that's just not what happens.
15:52 I mean, Judge, the courts say things all the time.
15:57 We call it hip-hop. When a court is listing off--
16:00 Sometimes we call it the law.
16:02 Sometimes. But what we're talking about when we talk about Edmondson is we're talking about it.
16:08 I mean, nobody was arguing in that case that probable cause was a standard.
16:15 They were arguing over whether or not it's fair that some people get a prelim and some people get a grand jury.
16:21 That's what that argument was about.
16:23 And the guy didn't come in and say, "Oh, no, I got a grand jury, and the standard is beyond reasonable doubt.
16:31 I don't like that. I'd rather have a prelim with a probable cause standard."
16:35 That doesn't occur in that case for various, I'm sure, fantastic reasons.
16:41 And the same thing happens in these later cases.
16:43 I mean, it gets responded to.
16:45 And, yeah, the Supreme Court adopted a rule, but it's never tested the constitutionality of its own rule.
16:52 It's never heard arguments on any of these things.
16:55 It's not stating a holding after an argument.
17:02 What it's doing is it's just reviewing what it believes the law to be that nobody's picking a fight about.
17:09 I'm picking a fight about it.
17:11 And you may have the opportunity to do that to the Supreme Court.
17:16 Well--
17:18 I mean, that's what you're building for.
17:20 No, you know that I am constrained by existing law.
17:25 I can't just change the law as a trial court if it's established.
17:32 And I would say that in Edmondson there wasn't an argument because it was settled law.
17:41 I mean, I think that's really, really the problem.
17:45 So, of course, a lot happened from, you know, 1880, 1890 to now.
17:52 But the law doesn't always just sit still.
17:56 I mean, it evolves.
17:58 And that may be just what happened naturally.
18:03 I don't agree that the language of the statute is completely clear, too.
18:11 I mean, I think you can interpret it in different ways, and a lot of people have interpreted that language in different ways,
18:19 whether it's beyond a reasonable doubt or a probable cause.
18:26 And you can argue with me about that.
18:31 I mean, I'm kind of baiting you about that.
18:34 Judge, the cases that say that are very self-serving.
18:38 These are courts that are essentially openly hostile to the idea of using the beyond reasonable doubt statute.
18:46 And so they make claims like, "To warrant really means to permit the trial jury to see it."
18:54 That's not the wording of this statute.
18:56 The California case gets written in the backdrop of a statute being passed in the 1940s that says probable cause is what you're going to look at
19:07 when you're deciding whether or not these indictments should stand.
19:10 So it really doesn't--whether or not the grand jury is being told something else, to some extent, turns into a good point.
19:18 I mean, the reality is, just because the courts didn't like what the legislature did,
19:30 and in our case, unlike California, unlike New York, what was part of the concept of due process in our Constitution was written,
19:41 just because the Supreme Court doesn't like it doesn't mean it somehow settled the law because it refused to follow it.
19:48 It has to actually have a case and determine it.
19:53 Now, occasionally, they can pass rules like they did.
19:58 And so that's where this whole question of whether or not this is substantive right and non-procedural right comes in.
20:02 But they never ruled on it.
20:04 And your Honor has the ability to look at the whole mess, the totality, and say, "What is the law?
20:14 What was the law in 1890?
20:18 And when did it change?"
20:20 I don't think what the court can write is an opinion that says, "Well, we don't know when or how it changed.
20:26 By 1890, clearly the probable cause was the same."
20:33 There has to be something where the Supreme Court considers these things in order for it to be settled law
20:40 in a way that your Honor would be right and say, "I can't do anything about it."
20:45 They've never settled this question because nobody ever brought it up.
20:50 It's really hard to get a copy of the field code in 1913.
20:55 I don't know.
20:57 Well, there was--I can't remember the name right at this moment--in the 1950s,
21:03 there was a dicta where the judge, the appellate judge, said, "No, that's not the standard
21:11 because they were using the unreasonable doubt in that case."
21:15 It starts with a G.
21:17 But anyway, there was a discussion in that case about what the standard of proof is or should be in the grand jury.
21:31 So there have been touches of that along the way, I think, but you're right.
21:39 There's not a whole lot of law until maybe Edmondson.
21:44 I think that was pretty clear.
21:47 And then as Mr. Knight pointed out, a couple of decisions after that,
21:52 there's that case, I think it was 1987, something like that.
21:58 So, yeah, I mean, I appreciate your argument.
22:05 It's interesting.
22:08 I'm intrigued by the law, though, back to that.
22:16 You're making your record. That's good.
22:19 Judge, Edmondson held some things, it's true, but nobody was arguing about that standard of proof.
22:29 The fact that they stated while they're walking through what a grand jury is versus what a plenary hearing is,
22:36 that doesn't settle what the standard is.
22:39 Just because they said it doesn't make it the law.
22:44 I think their jurisdiction is limited and yet broader than the United States Supreme Court,
22:53 although if you read that most recent opinion where Judge Stegner doesn't agree with any of them about what their jurisdiction is like,
23:00 it gets kind of complicated.
23:02 But the point is, they can't just say in an opinion where nobody's arguing anything,
23:10 "Oh, and by the way, the law of the land is this."
23:13 Nobody briefed this issue in Edmondson.
23:16 Nobody briefed it in any of the cases they came after.
23:19 They didn't set in stone via that opinion what the standard is.
23:26 They tried by adopting the rule.
23:32 The rule is the question.
23:36 The court has to try to figure out, is it a procedural right or a substantive right?
23:43 The court says it's a procedural right.
23:45 Essentially what the court is saying is that the courts get to decide how much it takes
23:51 for one of us to be thrown in the lockup, put to death, etc.
23:57 Which I can't find any case that has ever said that.
24:02 They all said that the standards are being set by the Constitution or the legislature,
24:06 setting these standards over and over and over again.
24:10 So for the Idaho Supreme Court to issue a rule setting the standard of proof,
24:17 even though there is a statute that says otherwise, they can't do that.
24:24 That didn't become something that--I mean, they did it.
24:28 But the court is in a position to consider whether or not they could do it.
24:32 The court can tell the Idaho Supreme Court's rule is in Constitution.
24:37 Courts can do that.
24:39 We consider bail issues, we consider bail on appeal, things like that,
24:50 statute versus procedural rights.
24:52 Those things occur.
24:54 And the lower court can look at that like anybody else can.
24:57 Who's in the right? Is it the legislature or is it the court?
25:01 So I think the court can decide all these things.
25:04 But if the court's going to say, "Okay, I hope you'll at least write a 32-page word
25:10 in which you explain how right I am about everything except that."
25:15 Thank you.
25:16 Thank you.
25:20 I appreciate the argument.
25:23 I think it's really creative, and I appreciate the journey back through history.
25:32 I think it is an important factor in determining what the law is
25:39 and why the law was established the way it was.
25:45 But even you--and I've heard this, but even in your brief--and this is your quote--
25:53 that the whole of modern jurisprudence on the issue is against it,
25:59 as well as the least one founding father of this state.
26:07 So I get it.
26:11 I mean, what it comes down to me is that I am constrained by what I believe is settled law.
26:21 In Idaho, I may be wrong.
26:23 But this is certainly an issue that you would have to bring up with a higher court,
26:32 like the Idaho Supreme Court.
26:34 And I look forward to getting that, from your perspective, settled in Idaho.
26:42 We'll see.
26:47 You know, there's the rule, of course, which, as we've talked about,
26:57 but this argument really is fighting against some case law, too.
27:03 You may say that it's all dicta.
27:06 I mean, that's debatable, I suppose.
27:09 But the Idaho criminal rule, specifically Rule 6.5(a),
27:15 expressly states that probable cause is the standard, not beyond a reasonable doubt,
27:22 and for a grand jury's indictment.
27:26 And I think I have three or four recent--because this argument has been circulating in the state--
27:36 I think I've had three or four district judge decisions denying the motion and the argument.
27:44 So I am going to deny that argument.
27:50 I think the argument is good, but I can't go that far.
27:56 Not today.
27:58 I'll give you a written decision.
28:00 I can't guarantee it's going to be 32 pages.
28:03 It might be longer.
28:04 It might be shorter.
28:05 So we'll see.
28:07 But it's always enjoyable to have an argument with you, Mr. Blomston.
28:17 I think that's all we have to do still.
28:22 Ms. Taylor?
28:23 That's it for today, Your Honor.
28:25 Okay. And Mr. Thompson?
28:27 Yes, sir. We're done for today.
28:29 Okay. Nothing else to address, then.
28:31 Okay. Well, I hope you all got a touch of Idaho history and the law and how it works,
28:39 and our Idaho and United States Constitution.
28:43 So go out and learn some more.
28:48 Okay? Thank you all.
28:50 We're adjourned.
28:52 (Gavel)