Idaho Murders Suspect Bryan Kohberger Returns To Court For Motion To Compel Hearing

5 months ago

Idaho murders suspect Byran Kohberger returns to court for a motion to compel hearing.

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Transcript

00:00 not be sealed. Okay, Mr Thompson.

00:04 Your honor, the state's prepared to do its argument today without actually

00:10 talking about the specific request that we're trying to protect within the

00:14 discovery request. And so as long as those specifics are not discussed or

00:21 mentioned, I think we can go forward with an open hearing today. Okay, are

00:25 you? Are you comfortable with that? Miss Taylor?

00:29 Well, what I'm not going to talk about is the content of the court's

00:33 protected materials that we've asked for a sealed hearing for. What I'm

00:38 prepared to talk about is why should we seal this particular motion to compel

00:44 that's set to be heard and how much else is in the public record and there

00:48 and why there's no compelling reason to seal that and why that violates Mr

00:54 Coburn's constitutional rights. So if I talk about things that are in the

00:59 affidavit and if I talk about things that we're seeking that the state wants

01:02 to hide, I think that's fair game for the public to hear.

01:06 It's um, the challenge here is that

01:11 both sides have agreed to seal all the discovery. There's a lot of stuff out

01:20 there. And so I just want, I hope that you can both honor that at this point

01:28 because down the line, um, maybe some things do have to discuss. We need to

01:35 discuss very specifically, uh, that maybe, maybe both sides don't want that

01:43 out in the public because it is a fair, fair trial goal here. And if we start

01:51 arguing about, uh, the case itself, the trial and the evidence that we're going

01:56 to, that you're going to present both sides, it gets more complicated and may

02:03 be prejudicial to one or the other. So I guess at this point, uh, we'll keep

02:11 this open, but be careful. I mean, I, I read everything, so I know what's sort

02:20 of out there and what you're, what you're concerned about. Uh, and some of

02:25 those, some of those, uh, materials or potential evidence, uh, could, could be

02:33 prejudicial to the state or it could be prejudicial to Mr. Kober. So my job is

02:39 to try to keep, uh, on a, on a balance here, a neutral balance where, uh, when

02:46 we get to the trial, if we ever get there, uh, that, uh, that it'll be fair

02:53 and we'll have been determined in, in, uh, in advance. Okay. So, um, keep it

03:02 open today. If something comes up and we need to close it down for a period of

03:10 time to discuss a particular situation, then, uh, then we can do that. Okay. So

03:17 it really, um, I think at this point it's the state's motion to close the

03:25 hearing completely on, uh, on May 14th. I believe I'm not incorrect that you

03:34 both have stipulated to closing May 16, which is, uh, related to the IGP.

03:42 Your Honor, our position is that's the only part that should be closed and

03:46 that's because we want to talk about the content of the court's, the materials

03:51 protected by the court's order. And so that one's appropriate to close. Okay.

03:55 Okay. I think I'm on the same page, but great. Okay. Uh, Ms. Jennings.

04:02 Thank you, Judge. So Judge, the applicable authority today in determining whether or

04:11 not we should close the May 14th hearing is Idaho Administrative Court Rule 32.

04:17 And Idaho Code 74-124. Both contemplate balancing this public right to an open

04:24 hearing versus the interest such as, uh, privacy, safety, and the right to a

04:30 public trial or to a fair trial. In deciding whether or not to file the

04:35 motion to close the hearing, the state weighed those interests and ultimately

04:40 came down that the need to protect the privacy and the sensitive information,

04:45 um, and ultimately protect the state and defendant's right to a fair trial

04:50 outweighs the right to an open hearing. Um, feel confident that when the court

04:54 does the same balancing test, it'll come to the same conclusion. For the record,

04:59 since the beginning of this case, um, attachments detailing the specific discovery request

05:06 have been filed under seal. In line with this, on April 4th of 2024, just about a month ago,

05:15 the state and defendant filed a stipulated motion to file off future attachments under seal.

05:20 Today, we're specifically discussing the defendant's fourth and fifth motion to

05:27 compel discovery. Concurrent with the defendant's fourth motion to compel discovery,

05:33 the defendant motioned the court that the details be filed under seal, citing Rule 32.

05:42 Concurrent with the fifth motion to compel discovery, both parties stipulated to filing

05:47 the details under seal, citing Rule 32 as well as Idaho Code 74-024. So the state followed course,

05:57 we have filed all of our responses under seal and then filed this motion to close the hearing

06:02 to discuss those previously sealed details. Now the defense is taking a contradictory position

06:11 and asking the court to ignore all the previous filings, and this is just entirely inconsistent.

06:17 To be clear, the state has nothing to hide. However, it's crucial that we protect,

06:25 as we have been trying, the integrity of this case,

06:28 and that we protect, ultimately, the right to a fair trial.

06:32 So, let's look at the factors. Balancing a public's right to an open hearing

06:40 and the party's right to a fair trial, let's go to the factors laid out by Rule 32

06:45 and Idaho Code 74-104. And when we do that, for a defense's fourth motion to compel,

06:53 item 1, subpart A, discusses federal grand jurisdictorials. Those are exempt from disclosure

07:01 by federal law, as well as Idaho Code 74-104, subsection 2. What they specify as subparts B

07:13 through N, all of those items discuss evidence related to this investigation,

07:18 of which disclosure would, one, interfere with enforcement proceedings pursuant to 74-124,

07:26 subsection A, deprive the defendant a right to a fair trial in the state subject to 74-124,

07:35 subsection B, and Rule 32, subsection E. And it would disclose investigative techniques

07:41 or procedures which are exempt pursuant to 74-124, subsection E.

07:47 For a defense's fifth motion to compel, item 1, subparts A through J,

07:55 all deal with the investigation. All would be exempt pursuant to the same authority just cited.

08:01 Subparts K through M deal with the names of private citizens who were interviewed,

08:08 and disclosure would constitute an unwarranted invasion of personal privacy subject to 74-104,

08:17 subsection C. It could contain intimate facts or statements of which would be highly objectionable

08:23 to a reasonable person, exempt under Rule 32, I to A, or invoke traditional legal concepts in the

08:31 law with the right to a fair trial, invasion of privacy, under Rule 32, subsection 3.

08:37 Subpart N through O is exempt under interfering with enforcement proceedings, depriving the

08:47 defendant to a fair trial, as well as disclosing investigative techniques or procedures.

08:53 Item 2, subpart A, names a private business, and is exempt under the previously cited authority.

09:01 Item 2, subpart B through L, deals with the investigation. Again, exempt under 74-124A,

09:10 subsection B, and E, as well as Rule 32, subsection E.

09:18 Item 3 names multiple private businesses. It's also exempt under the same subsection, 74-124A,

09:26 B, E, C, as well as Rule 32, I to A, and 3. Subpart I deals with the investigation,

09:39 exempt under those same authorities. Subpart J involves a private citizen,

09:46 exempt under those same authorities. Subpart K through B deals with the investigation,

09:52 and is exempt under those same authorities. Item 4 deals with IGG information,

09:58 which has been sealed and is under a protective order from the court protecting its disclosure.

10:04 If the court decides to open this hearing to the public, the state defense will be discussing

10:12 evidence without any context. This will undoubtedly fuel speculation, lead to assumptions,

10:20 and false narratives. The evidence discussed may not even be offered, and most of it likely will

10:27 not be offered by either party at trial because it's either not relevant or material. The public

10:34 will not have any means or context to be able to differentiate that. It is necessary to mitigate

10:41 this by closing the hearing in order to preserve the right to a fair trial for both parties.

10:46 The defendant does have a right to a public trial, but that does not mean the right to try this case

10:54 in media. The defendant will get his day in court, and the public will have a right to see what

11:01 evidence the state has, but that should be evidence that is admissible pursuant to the

11:06 Idaho Rules of Evidence. Now is not the time for that. We ask the court to grant the state's motion

11:15 to close the hearing regarding the defendant's fourth and fifth motion to compel discovery.

11:19 Lastly, I ask you to issue a scheduling order for the parties to disclose witnesses, exhibits,

11:28 expert reports, or any other evidence they plan on relying on for those hearings.

11:33 Prior to the hearing, the state proposed May 3rd and then a response to those by May 10th.

11:39 And the state takes no issue with this being a dual deadline. Thank you.

11:44 Thank you. May 3rd might be a little far off.

11:49 Right, but our motion was filed over a week ago, so everyone's been on notice

11:59 of what the state was asking for. Okay, thank you. Thank you, Ms. Daniel. Ms. Taylor? Thank you, Judge.

12:06 Our discovery requests have been filed for months, and they've gone unanswered, too, so

12:13 if we want to talk about being on notice for something, we can talk about that.

12:18 Can I just add, because I've read through all of the fourth and fifth, and it's, I mean,

12:27 some of the information, it seems, anyway, I mean, I'm not,

12:33 it's hard to know, okay, but it seems like the state has provided and has responded

12:42 to some of those requests, and some thought they're still waiting to get that information. So,

12:51 that's the impression I had. I don't know if you disagree with that or not.

12:57 I would say the court is maybe in part right, but there's a lot of other parts to those fourth and

13:05 fifth, and the court's referring to our motions to compel not discovery requests themselves,

13:11 but they do reference a number of discovery requests that have been going out.

13:16 And we can talk specifically about each of those items. I prefer not to.

13:23 Which is fine. I'm prepared to talk about why this needs to not be a closed proceeding today,

13:30 but I don't agree that the state is completely responsive here. So, I think the court can read

13:39 and see that they say, "We'll get it when you get it." I think the court can read and see when they

13:44 say, "We're not going to offer it, so we're not going to get it." I think the court can read all

13:48 of those things, and we'll talk in depth on the 14th about what they mean, and some of the ins

13:53 and outs that go into play with those, but there's a lot more than just meets the eye.

13:57 With regard to the hearing on the 14th, the state directs the court to look at

14:05 Idaho Court Administrative Rule 32 and Idaho Code Title 74, and those really talk about

14:14 documents that the court can seal. And both really are in, if you look at them, they are to talk

14:22 about openness of the court and public's right to have information, and what things the court can

14:29 shield from the public, and what the public has a right to know. And when we're talking about

14:35 documents, it's been brought up that we've filed a lot of documents under seal. We have. We have.

14:41 Those are documents that end up in the public record that thousands of people can read,

14:46 and we file those under seal for expediency in saying, "This is exactly what we want from

14:52 discovery." If the court looks at the documents, and the court can, and probably has, through the

14:58 year and a half this case has been pending, there are a lot of names and specific bits of information

15:04 in there. And so for expediency, we file those under seal, and for the reasons outlined in Idaho

15:11 Court Administrative Rule 32. But what we're talking about now is a public hearing. When the

15:17 state has decided to not give us information, or to drag their feet on giving us information,

15:24 we're talking about a public hearing where we have a right to be in the public eye, a public hearing.

15:31 Brian's the one with the right. It's his Sixth Amendment right to have a public hearing.

15:35 When the state wants to close a hearing, or any party, and the other party objects, which we do,

15:42 the court is guided by case law in the state of Idaho, and the backdrop of his Sixth Amendment

15:47 right to a public trial in the United States Constitution, and Article 1, Section 13 in the

15:53 Idaho Constitution. So in the backdrop of that, the court is guided by case law. And the specific

16:00 case, there's a couple of Idaho cases, State v. Kimblee and State v. Olivine, and they refer the

16:08 court to Waller v. Georgia, and that is at 467 U.S. 39. And that puts forth the test that the

16:17 court should look at when determining whether to close a hearing or leave it open and let it be a

16:24 public hearing. And that, the court has to find that there's an overriding interest that the

16:34 hearing should be closed. In this case, in this hearing, that's not what's happening. The court

16:43 would look at Brian's rights here to a fair trial and balance that against the state's request to

16:50 close the hearing. And we would want the court to consider this, that this isn't the state trying to

16:56 protect Brian's interests at all. He has the right to the public hearing. This is the state trying to

17:02 protect what the state's doing. And the court should look back through the history of this case.

17:07 This is our fourth and fifth motion to compel. Motions to compel one, two, and three were public.

17:14 They were right out in the open with the public. The specific discovery requests were also sealed.

17:21 So this has been a pattern to do things in the public. And now this one needs to be sealed.

17:28 The court has to ask itself why. And the court should ask itself, what is the state trying to

17:33 hide here? The things that we're seeking in these motions to compel are things that are outlined in

17:40 the probable cause affidavit that has been public for a year and a half now, that has been offered

17:47 to be shared far and wide. We're looking for things like videos that the state said they collected,

17:55 so that we don't look at things in a little vacuum. The state tells you not to take it out of context.

18:00 That's what they're doing. When they want us to do this in private and not let the state know

18:06 about the full scope of the videos that are out there that they haven't given us,

18:10 that is the state keeping things in a vacuum to control the public narrative. And that violates

18:18 Mr. Koberger's rights. That's what we want to prevent. This needs to be out in the open.

18:22 Your Honor, I'll give you a couple of examples. The state filed last June its motion for protective

18:28 order of the IGG materials. That motion was filed in public. It's on the public record. People can

18:35 print that and read that and do all day long. And that had information that was negative about Mr.

18:41 Koberger in it. So that's out there in the public. But that order was to protect information,

18:47 the IGG information, that they say details how the state got to Brian in the first place.

18:53 That's been sealed. That's fine. We respect that. But you have to question why can we not talk about

19:00 the things they're not giving us? Why can we not talk about the cell phone information,

19:04 the tower information, the drive test information in a public arena? Why should Brian have to have

19:12 his case when he's asking for this information be done in a little vacuum where the state says what

19:17 the public can hear and what the public can't hear? Another example of this, Your Honor,

19:23 is with the videotape that they've relied a lot on in their probable cause affidavit that we've

19:33 received different parts of. Part of the hearing on the 14th is to talk about the different parts

19:39 of that video that we've received and how we need the whole context. This is the video that they say

19:46 places this car near the residence. We've received little tiny pieces of that. And we think Brian's

19:55 right to a fair trial means the public needs to know that they've withheld the audio from a great

20:02 portion of that and that it starts a long time before the little clip that we've received.

20:06 To do this in a vacuum, Judge, when documents are filed under seal, that's fine. Those are

20:14 documents. But this hearing needs to be in the public eye. For the court to allow the prosecutor

20:20 to say we need to keep this all private for a fair trial really ignores the public nature of this

20:27 case. It really ignores the fact that Brian has been essentially convicted in the media. You don't

20:35 have to read but a few articles to see how negative they are about him. He has a right to have this

20:41 information withheld, brought out in public so that people can see it's not this neat little

20:47 package. So people can start to wonder if Brian's innocent. Your Honor, Brian is innocent. And he

20:54 has an absolute Sixth Amendment right to have his hearings in public. We think if the court allows

21:01 the state to shield the information and how they got their information and what they don't want us

21:07 to have from the public, they're using his Sixth Amendment rights to hide behind. And that's just

21:14 not what the court should allow. We strongly object to these kinds of things being closed.

21:19 Thank you, Ms. Taylor. I don't know where to stop, though. I mean, if we start pulling out all the

21:29 potential evidence for the trial, then does the state get to respond to that? And where does it

21:41 start? I mean, or stop? It just is a role of that. And so for either side, it seems to the public

21:55 that it is not, you don't get the context. They don't have the context. The public,

22:00 you have the context. You want more context. I get that. But it's really difficult to say,

22:10 to just open that up and talk about particular issues in the case without talking about the

22:21 entirety of the case. And that's what trials are for. I mean, I totally understand that Mr. Coburn

22:28 has a constitutional right to a public trial, but having a hearing is not a trial. That's something

22:37 different. And so that's why, you know, that's where the balancing comes to, if you want to

22:43 answer. I do judge the Waller versus Georgia cases in the context of a motion to suppress.

22:51 If the court starts closing hearings now, when the court hasn't closed the other motions to compel,

22:58 what's the court going to do when it comes time for a motion to suppress? Those are coming. Many

23:03 of them are coming. We want the hearings in public. The state has dropped bits of information

23:10 with different filings they've made all throughout the way. This can't be done in private. It just

23:18 can't. I would say both sides have said in their motions or in their briefs that they've disclosed,

23:29 you know, certain things. And it's a change, see, that because both sides have agreed to seal

23:40 a lot of these issues of evidence in the discovery. And so all of a sudden it just does feel like

23:50 it's moving in a different direction. But I understand what you said. It's like,

23:56 this isn't about the discovery. This is about the hearing.

23:59 Your Honor, those are discovery documents. And there are things in there that the state's chosen

24:08 to respond to. The state selected which things that we have to have a hearing about. And these

24:13 are about things that are in the state's possession or control that we want them to give us. And we're

24:19 asking you to order them to give us these items so that we can do our work, so we can complete

24:25 our investigation. It's not any different at all. Sealing the documents, I think that

24:33 needs to continue to happen. There are a lot of names in those documents and requests for follow-up.

24:41 We don't have to do that. I do think those are fine. And I think they're different because

24:47 they're documents that are going to sit in the public record. They're different than having

24:52 a hearing of things that the parties haven't been able to resolve on their own that the court needs

24:56 to resolve. Public has a right to see how its business is carried out. My interest is Brian's

25:02 right. But I would ask the court to remember the history. We've had motions to compel one, two,

25:09 and three from the public eye. All of a sudden, we get to four and five. And we understand the

25:13 subpart of five that has to be in a sealed proceeding. That is going to directly deal

25:17 with documents the court has ordered be protected. That's completely different than when the state

25:23 won't give us bits of information that's within their possession and control that we need to

25:28 prepare our case. Your Honor, I would ask the court to consider, too, how much pressure there

25:33 is to get to trial. We've heard the state say they'd be ready by this summer. We've heard the

25:38 state say they're going to be ready by March of 2025. We've heard them say that they've given us

25:43 95 percent of discovery. We've heard them say they've given us all of the discovery. And those

25:47 things just aren't true. They're just not true. You can see from the list of things we don't have.

25:52 There's no way we have 95 percent of it. So when there's all of that in the public eye and the

25:59 pressure of let's get to trial, I think the public has a right to see. And Brian has a right for the

26:05 public to see that we're trying the best that we can. The court offered to do what it could to

26:12 speed this up. Having hearings about things that shouldn't be closed, that we object to being

26:17 closed, takes time. There is no change in our habit or our practice filing documents under seal

26:25 for things that meet Idaho Court Administrative Rule 32, subsection I, and us asking for a public

26:33 hearing. There's nothing inconsistent about that, and that's the way we've carried out the case.

26:39 I can stay with Bruce Stines. Ms. Jennings? Yes, Your Honor. Ms. Taylor is arguing

26:48 that multiple, completely false narratives are the exact reason why this hearing should be closed.

26:58 Yes, defense has a right to a public trial, but that is not the right to having all hearings

27:08 open to the public. The court's right. There will be a day for this, and that is the trial.

27:14 But we shouldn't be discussing all the evidence that we're going to hear at trial prior to that.

27:18 There's no right to try this case in the media.

27:21 The case law that the defense relies upon has not extended this balancing task to these types

27:34 of hearings. The cases are about trial, and yes, they extended it to a suppression hearing,

27:42 which was so interrelated to the trial. Waller v. Georgia primarily stands for the proposition that

27:51 any closure gives you this balancing test. We just went through the balancing test,

27:57 and the state gave you the reasons for why this meets the test for closing the hearing.

28:02 As far as being inconsistent, I would just note for the record, we have had

28:10 one hearing regarding motions to compel. However, at that hearing,

28:15 this is your order, at the outset of the hearing, the parties informed the court they had reached

28:26 agreements on all issues except request 160. We discussed one request, and it had to do with

28:33 training records. That is not what we're contemplating discussing at this hearing on

28:37 the 14th. I've gone through the multiple issues and subparts, as well as the reasons why we cannot

28:46 have this discussion in an open forum. >> Thank you.

28:51 Do you want to respond to any on that, Ms. Taylor? >> Well, Your Honor, we had the entire

28:59 IGG, states motion for protective order, and our objection to that in a public forum, as well.

29:07 That ends up resulting in us receiving documents that the court had a protective order on, and we

29:13 can't even share with our investigators that come to court with us. We've abided by that,

29:18 and we understand that. But the entire hearing leading up to that was done in the public eye.

29:23 In that particular hearing, they talked a lot about DNA results on a knife sheet that,

29:31 I'm sure, benefited the state to have that in the public eye.

29:34 What we're going to talk about on the 14th, Judge, I don't have to name any private citizen names.

29:41 I can talk about records that exist and why we should have them without naming private citizen

29:48 names. I can talk about the videos that they've not given us. They're not about the business.

29:54 They're about videos that were collected by the police. I can talk about those in the context

29:58 of the police reports. And by the way, those are all things that are talked about in the probable

30:05 cause affidavit. And I can talk a ton about the cell phone information, the cell tower information,

30:12 and the things that they have not given us, the drive test information, the verification

30:17 of such. >> That's the thing. I don't want to talk about those particularly. And I guess

30:28 I'm reminded, okay, in your comment about the IDG, because once again, you know, I'm in this

30:37 position where I have to make decisions blindly to some degree. And that's what the case with the

30:44 IDD, I mean, I had to go through all of that information. And then I provided

30:50 most of the information to you, okay, to the defense so that you could evaluate that.

31:03 I feel that the same way about all the, I mean, there's a lot of stuff, okay, that you're arguing

31:11 about and the state is arguing about. And I think it's complicated to just open that up. I think

31:22 that, you know, maybe we could go through a closed hearing and then open up what you feel needs to be

31:31 opened up. But I can't make that decision in the, you know, abstract. So that's my worry, because

31:41 I went through all this last night again, and I thought, how do we really fairly deal with each

31:51 one of those issues? There are a lot of issues. >> I agree with you. There are a lot of issues,

31:57 your Honor. I would ask you to look at the probable cause affidavit and read the parts

32:02 where they talk about relying on FBI agents and the cast report and different cell tower data.

32:09 Your Honor, that stuff's in the public eye. Why can't I talk about what they refuse to give me

32:15 in the public eye? >> Well, one of the things that we wanted to talk about today is I just got

32:22 motions for subpoenas due to the FBI. I mean, it's really difficult to get information from the FBI.

32:35 You know that. They know that. I know that. We have to jump through a bunch of hoops

32:42 to get particular information from the FBI. That is not the state's issue, although maybe it should

32:50 have happened six months ago. >> That's the state's issue. >> I understand that. But that is

32:56 one of the things that, I mean, we can maybe address that today, too. I don't think,

33:02 thinking that you don't have an objection for me to sign the subpoenas. >> No, your Honor,

33:09 I don't have an objection for the court to sign the subpoenas to try to get the information.

33:12 >> So I can sign that today. >> You can sign that. You can sign that. Anything you need to sign to

33:18 get us the things we want, please sign. >> I'm with you. I'm trying to do that. And, you know,

33:25 from what I've seen, I mean, I think the state is trying to do that. I know that it's not

33:32 satisfactory from your position. But there's a lot of issues in this case. >> And, your Honor,

33:41 that's really a lot of what we're going to talk about on the 14th, is the timing of these things,

33:47 not the full content of what we think these things might show. We don't know. We don't have them.

33:53 They know. >> Likewise. >> So I think the timing is important. Your Honor knows how much pressure

34:01 there is to get this case to trial. And your Honor also is aware of all the things that we have to

34:05 do. And when we make a request, and months later, you're asked to sign the order so that maybe we

34:10 can finally get that information, that timing part is important for the public to know. That's not

34:16 the content. I'm not going to talk about the content of that subpoena you just brought up.

34:19 I don't need to talk about that at all. But I can talk about the delay in this and why there's a

34:25 delay in us being ready for trial. That is fair game for the public. And that is something Brian

34:31 has an interest in having public. So I don't have to talk about that content. That's not the issue

34:37 at all. But the things that are laid out in the probable cause affidavit that has been on the

34:43 court's public website for a year and a half now, it makes no sense that I can't ask for those things

34:49 in the public when there are things that the state said they relied on. That just makes no sense. I

34:54 have one more ask when we're done on this issue. >> Okay. Thank you. I mean, are you expecting me

35:08 to make the decision right now? Maybe not. >> Well, Judge, you should just make the decision

35:14 to have the hearing open. And if I start to talk about content, then maybe you can talk about it

35:21 then. I don't agree any part of it should be closed. I don't agree any part of the hearing

35:26 should be closed. And I think you should make the decision now. We're two weeks away from this

35:30 hearing. >> Two weeks? Is that right?

35:35 >> We're less than two weeks. We're 12 days. >> All right. Well, I kind of mentioned this

35:45 a moment ago. I just feel like we need to get into the details, okay, of all these issues before I

35:55 open it up. So I'm going to close that hearing. Now, that doesn't mean that after we sort out

36:06 all of those issues and I have more understanding of why you are getting what you want or what you

36:15 asked for or whether or not there is something that you've asked for that doesn't exist or that

36:24 some of the materials are holding with the FBI and that we need to get that. I mean, those are all

36:38 really complicated processes. And I would feel much more comfortable, again, I'm trying to protect

36:46 a fair public trial and not have maybe not intentional unfair hearing, okay, that goes out

37:00 to the public. I think that's the balance for me. I want to see what all the issues are,

37:07 the arguments from both sides so that I can make the more informed decision.

37:12 So I'm going to close the hearing. At some point in that hearing, maybe we can open up part of it.

37:19 But I need to dig in and you all need to dig in to exactly what is the problem with each one of

37:30 these issues. All right. So let's talk about the schedule, okay, the state asked for this,

37:46 some disclosures of witnesses, expert witnesses, exhibits by May 3rd. I don't think that's

37:56 particularly practical at this moment. I know that you have, I'm not looking at it right now,

38:05 you've got another idea about that, Ms. Taylor? Judge, I think I have myself. Okay.

38:19 That seems more practical. Okay. So I will put an order out, schedule order for providing,

38:32 I don't know if the state really knows what you do until you see what they have.

38:42 You're shaking your head yes. Yes, sir. And that means that maybe you don't have any

38:50 witnesses, expert reports or exhibits at this point because you don't know what to expect.

38:56 And this is related to the hearing on the 16th, right? In the 14th, I'm not sure. Okay.

39:05 And there may be witnesses on the 14th too as well? Yes, Your Honor. Okay.

39:10 All right. So let's make it May 7th for disclosing witnesses, expert reports and exhibits.

39:21 We'll see what the state has to do with that and we'll have a response maybe May 10th.

39:28 Is that sufficient? That's right. It's tight. Well, that gives us three days to respond. Three days?

39:38 Yeah, that's right. Well, May 10th is... I don't know when I'm going to read all this stuff too

39:48 because it's 14th. So if I don't have it by the 10th, then you're saying the 13th?

39:55 I guess I can do that the night of the 13th. But also, the defense needs some space there too.

40:08 And I don't think we want to push out that hearing.

40:10 Yeah, it looks like it ends. You have no idea what the defense plans on doing and that only gives us

40:22 three days to read, comprehend and respond. We'll be able to say... We'll deal with the 13th then.

40:30 Yeah, I mean we can try and then if we need more time, we'll ask for more time.

40:34 It's just then on my end, you're looking at I'm going to have really more... I'm getting more time.

40:43 No, I don't expect reports. I expect to provide a witness list.

40:48 Okay. I don't expect there to be reports.

40:51 Exhibits? There may be exhibits. I think there will be at least two or three. I know some will

41:00 be things that they've already given us in discovery, so they shouldn't be new and surprising.

41:05 Okay. I mean it's hard to have these tight time frames because we also have other things to do.

41:15 Mr. Thompson? Your Honor, it's completely unfair and unacceptable for us to get a list of witnesses

41:22 with no idea what they're going to testify about. Witnesses don't mean much of anything.

41:29 And unfortunately, we're having a pattern in this case of last-minute disclosures of witnesses and

41:35 PowerPoints and all sorts of things that frustrates your Honor's ability to assess what's going on

41:40 because it's brand new to you just like it's brand new to us. And I think that that practice

41:45 has to stop. We need substantive disclosures. If they're offering experts, the rules of discovery

41:51 specify what you have to disclose regarding an expert, and that's not just a name.

41:56 So what's being propounded by the defendant right now simply isn't within the rule. It's

42:01 not appropriate. It's not fair to the court or to the state. Okay. Well, I mean you don't have to

42:09 have witnesses or exhibits, but you can have a response to say, "Well, this isn't fair," or

42:18 whatever you want to say. Otherwise, I just need to push out this hearing. You know, I'm stuck.

42:28 I appreciate that, Judge. And I guess we've said before, it is more important to do it right than

42:42 do it quickly. We have to have a trade-off here. And that includes fairness to everybody involved,

42:48 including the court. And I would prefer that this not be kicked off, but we're realizing that we're

42:56 two weeks, essentially two weeks or less, away from these hearings, that apparently there are

43:00 going to be a number of witnesses that nobody but the defendant knows who they're going to be and

43:06 what they're going to try to say, and then we're expected to react in court. That's just simply not

43:11 the way to operate an effective, efficient, fair process.

43:15 Well, let's explore this. I mean, how many witnesses are you expecting to have?

43:23 Governor, I'm expecting to have two on the 16th at this point in time. I'm not expecting either

43:28 one of them to write a report. I expect a couple of exhibits. Some will be things from the protected

43:34 materials that the court allowed us to have already. There will probably be one or two other

43:41 exhibits, maybe two, that the state hasn't seen before. I can provide those. I intend to provide

43:47 those. On the hearing on the 14th, I think there may be two witnesses on that hearing, one for

43:55 sure, possibly a second. We haven't made that determination yet. If there is going to be any

44:00 PowerPoint presentation, I will provide that to the state as well. If we have an expert who hasn't

44:09 written a report, then we won't offer expert opinions. We'll offer opinions about why we know

44:17 the discovery is available, why we know these items are available. The state knows full well

44:23 what they have and what they're withholding from us, and that's, I mean, it's not going to be about

44:27 what they're going to show. We don't know what they're going to show, but we know they exist.

44:31 Thank you.

44:34 Well, I just want to have this hearing. I don't want to push it out.

44:45 All I can say is do your best. I'll be fair about it. I'll give you more time to respond.

44:57 If you don't have that time, that's kind of where we are. I just want to keep going. I mean,

45:09 we've got to get through all this discovery stuff so that we can get ready for the trial.

45:16 Well, and Judge, I do, for the record, need to clarify. The representations of the defense that

45:22 we are intentionally withholding things that they're entitled to is just utter nonsense.

45:26 We have strived. We are continuing every week to provide additional discovery. We have more

45:31 discovery coming. We hope that much of what they felt they had to file a motion to compel on,

45:37 instead of being patient and wait because our discovery deadline is in September,

45:41 we'll have and be able to make that available between now and the hearings on the 14th,

45:48 and there may very well be little, if anything, we have to fight about. Your Honor, also noted,

45:53 there are some things that we simply do not have the power to access, and we are trying. We have

46:00 been trying consistently through cooperative efforts, as well as following the process with

46:04 the federal government. They have been good partners, but they have their own rules to work

46:09 with. The motions for the subpoenas due to Steekem isn't the first TUI process, and the court is

46:16 aware. We've been pursuing TUI process for all types of information for months. So the

46:21 characterization that we are just consciously withholding information to frustrate the defense

46:26 is utter nonsense. That is not true. We will provide everything we can that is providable

46:33 under the rules. If we disagree on something, whether it exists or not, because I can tell you

46:38 many of the things that the defense, the defendant, is trying to itemize,

46:42 when we talk to our people, they say, "That doesn't exist."

46:47 So, I don't know what we're supposed to do at that point. We'll flesh it out at the hearing,

46:52 and it may be that if they have experts, you're going to say, "Well, such and such shouldn't

46:56 exist." We might have to go find experts to say, "Well, in this case, it doesn't."

47:01 Or no. We'll see. >> Well, that's exactly why I want to

47:06 close it on the 14, because we're going to have dark, many arguments, apparently, about issue by

47:15 issue by issue, and some of that should not be out of the -- >> Thank you, Your Honor.

47:21 >> Your Honor, I want to respond to that, and I can give you particular examples of things.

47:27 And it's already been ordered to be given to us, the cast report, which was a draft that we were

47:35 promised to have by March 31st. It's May 2nd. We don't have it. So, for the prosecutor to stand up

47:43 and say that I'm misrepresenting things, he's misrepresenting things, Your Honor. That's --

47:47 >> You know what? Let's not go there. I mean, we can sort that out on the 14th. I mean, I read

47:55 everything. That's what the state was saying. I trust both of you, okay, your integrity. So,

48:04 I don't want this pointing the fingers back and forth. I don't think it's very helpful.

48:11 Doesn't really help me. And, you know, it started at the last hearing, and I really want you all to

48:21 just tone it down a little bit. I mean, you can argue all you want, but when it starts to be

48:31 personal, it's destructive. I mean, you're really, really good lawyers. So, let's just focus on

48:40 issues. >> Your Honor, we're happy to, and when we get the catch report, we'll disclose it.

48:46 We do not have it. We are not withholding. It's as simple as that.

48:49 >> I read that last night. Okay. I'm not -- I'm very prepared about what the issues are,

48:57 okay, about the discovery. And that's why I want to be able to hear from both sides, okay,

49:05 what is the problem with this? What do we need to go forward? And I'm going to try and help that,

49:13 and I expect that both of you do the same. >> Your Honor, I do have several other examples,

49:21 but in light of what the court said, I won't provide them right at the moment.

49:25 There are other issues. >> I understand, and I understand your frustration.

49:32 And it's a big deal. It's a big deal. >> I understand that, too, and I acknowledge that.

49:40 Sometimes, you know, we just can't quite get what we want from other people who might have it that

49:52 don't want to give it up. So, that's one of my challenges on the 14th, and probably at the 16th,

50:01 too. Okay. Moving on. We've got -- all right. Some of these pending motions, there was no

50:21 request or no response from the state. And I'm thinking that the motion to unseal parts of the

50:30 materials and motion to allow defense investigators to review the IVD

50:36 materials, that we're going to be addressing that on the 16th. Is that -- >> Yes, sir.

50:43 >> That's the state's understanding. Ms. Taylor? >> Yes, Your Honor. Well, we're happy to have a

50:50 hearing on the 16th for both of those issues, as well. >> Great. I'm just trying to make sure that

50:55 we're all on the same page, or at least the same date. But I wondered, okay, there's been a

51:09 response on the alibi issue, and I don't know if there is a request for a hearing, or if we just

51:22 kind of let that lie for now. I don't know. What was your intention there, Mr. Thompson?

51:31 >> I think at some point we're going to need a hearing on it. We're busy now for the next

51:39 couple of weeks with these other hearings, so we haven't reached out specifically on that.

51:44 >> Okay. >> If the court would like to select a date

51:48 while we're together today for a hearing, we would be happy to -- >> Well, we just wait until

51:54 the 14th or 16th. >> That's fine.

51:56 >> And there may be issues that come out of discovery that have some bearing on that issue.

52:05 I don't know. You don't have to say anything, Ms. Taylor.

52:10 >> I can recombine that sometime. Maybe not. All right. Okay. I'm going to sign those subpoena

52:19 juices taken. The FBI. I believe that's related also to the 13th supplemental.

52:29 I'm kind of losing track. >> Your Honor, it does relate to one

52:35 of our discovery requests and I'm sure one of the number of motions to compel. I'll note that when I

52:41 speak about that on the 14th. >> Okay. Great.

52:44 All right. Are there any other issues that we need to address today?

52:51 Mr. Thompson, Ms. Jennings? Ms. Taylor?

52:56 >> Yes. >> Okay. Go ahead.

53:02 >> I want to say this in a way that doesn't come off finger pointing because it's not.

53:07 This is about how busy everybody is and how much time it takes to communicate to get hearings set

53:15 because there's a lot of people going a lot of directions. I would like the court to consider

53:20 setting hearings twice a month every other week and the court could vacate those hearings if

53:26 neither party notices something up for that hearing. There would be 14 days notice for

53:31 either party if we have hearings on that basis. But that way we could notice up specific hearings

53:39 and just have those set dates so that we're not bugging the prosecutor's office for a stipulation

53:46 and bugging the clerk's office for a hearing and waiting to find that out. It would speed things up

53:51 to have two times a month that we would know if I've got 14 days before this hearing, I can notice

53:57 it up and it can be heard by the court. So that's our request is that the court just reset a couple

54:03 of hearings. These would not be like the lengthy motions to suppress that we'll probably need a

54:07 couple of full days for. These would be these shorter motions that we could deal with in one

54:13 to two hours. >> All right. Thank you. I actually

54:17 mentioned that at one of our hearings. That's what we need to do. I think it would be more helpful

54:27 to I guess have better communication. Okay. I don't know. Maybe you are having good communication

54:36 with each side. It is hard to get a hearing when the clerk has to contact you or contact Mr. Thompson

54:52 and it just goes back and forth. I mean, it takes a lot of time for your assistant, your assistant,

55:00 the clerks. At the same time, I have a lot of other cases and I have a lot of hearing trials

55:11 going from here really to the end of the year. So it's hard for me to say, okay, we're going to have

55:21 it. I think I offered Thursday, like a Thursday afternoon. So I'm willing to do that. I might just

55:29 set once a month maybe. And then if you need something more, just let us know. But I'll look

55:39 at my calendar and set that up. I mean, I know you come down on Thursdays generally. So that's a good

55:50 day for you, right? Thursdays are fine. Tuesdays are fine. Fridays are fine. Wednesdays are rough.

55:56 But whatever day works for the court, I'll make that work. I just think it's more important that

56:02 we have a place to put these hearings so that everybody's not spending a lot of time asking

56:08 each other what day is okay, what time is okay, that we just all know that this is the time.

56:13 So whatever day works best with the court schedule, Your Honor, is just fine with me.

56:17 Thursday afternoon is probably the best. That'll work. Monday is impossible.

56:21 So what do you think about that, Ms. Jennings? Yeah, I think Thursday afternoon would be fine

56:29 for the state. Do you think twice a month is probably going to ramp up? I suggested that

56:39 just because then there's 14 days to the next hearing. So everybody would always have enough

56:44 notice. That's why I suggested that. And to know that we have those to iron out issues that are

56:49 going to arise. Again, these aren't for the motions to suppress. Those will come later.

56:53 Maybe we'll start with twice a month to get through all this. I mean, I hope we can all get past that

57:09 and move forward a little faster. Okay. Anything else then? No. Thank you. Okay.

57:20 Okay. Great. Well, thank you all.

Idaho Murders Suspect Bryan Kohberger Returns To Court For Motion To Compel Hearing

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