If I'm Judge Judge, I'm not happy with the State's motion to close the upcoming hearing about Bryan Kohberger's cell data

Once again, the First Amendment gets short shrift.

When Judge John Judge signed the order allowing the defense team to continue its surveys of potential jurors without modification, he made an observation that I wonder if he’s going to regret:

The fact that the jury questions were read aloud in a public hearing played a significant role in his decision to allow the surveys continue. Unfortunately, though, it appears the State may have taken this decision as an invitation to try to close more of the process to the public, and they don’t appear to fully understand what a significant request that is.

If you watched my last video, you know that the hearing on the defense motion to compel discovery coming up on May 14th has the potential to be extremely significant. We don’t know exactly what the withheld items are, but we know that they have to do with Bryan’s cell phone location data, and we know that the defense believes they are exculpatory and would be in the State’s possession unless they were destroyed.

When it was time to suggest the defense was engaged in some kind of wrongdoing that was poisoning the jury pool, the State had no hesitation about revealing all of the details - including the questions it had filed under seal - in a public, televised hearing. But now that the hearing appears to be honing in on exculpatory materials, the State has completely changed its tune.

THIS MOTION SHOULD BE SUMMARILY DENIED.

Let’s talk about why.

First, the sole basis for the State’s request, I.C.A.R. 32(g), doesn’t even apply here.

There is no other legal authority cited in support of this request. I.C.A.R. 32 is entitled “Records of The Judicial Department - Examination and Copying - Exemption from and Limitations on Disclosure.” The rule covers court records subject to disclosure under Idaho’s Public Records Act. It defines court records as written materials in a court file:

It’s a long rule, but there is not a single reference anywhere in it to closing court hearings. Moreover, the subsection the State has cited, subsection (g), has nothing to do with this hearing. Subsection (g) establishes specific exemptions to disclosure for certain court records, none of which are implicated by this motion:

(1) documents to which state or federal law restricts access;

(2) pre-trial risk assessments and pre-sentence investigation reports;

(3) search warrant affidavits, before the warrant is returned;

(4) unreturned search warrants;

(5) unreturned arrest warrants;

(6) applications and orders for wire intercepts;

(7) grand jury records;

(8) the names of jurors empaneled for trial;

(9) juvenile court records;

(10) records relating to involuntary hospitalizations;

(11) uniform citations (i.e. traffic tickets);

(12) adoption records;

(13) records for consent to abortion for a minor;

(14) records for involuntary sterilization;

(15) documents lodged in camera;

(16) domestic violence protective order petitions;

(17) records gathered by the court relating to an individual’s need for counseling or treatment, family court screening, custody recommendations, psychological evaluations, conservatorship accountings, and personal identifying information;

(18) unredacted filings required to be redacted to omit personal identifiers;

(19) documents in guardianship and conservatorship proceedings;

(20) child custody, support, and paternity records;

(21) judicial work product and drafts;

(22) court personnel records;

(23) application and testing records;

(24) computer programs and their user manuals;

(25) Law library patron records; (26) attorney discipline records;

(27) Idaho bar applications;

(28) judicial discipline records; and

(29) grant applications to the guardian ad litem review board.

So, in summary, the sole legal basis for the State’s request doesn’t support it - it gives the court no authority to do with the State is asking it to do. But it’s a lot worse than this, because there is actually quite a lot of law on what the State is asking Judge Judge to do that the State either doesn’t know about or is choosing not to mention, and it arises from our good old underappreciated friend, the First Amendment.

The U.S. Supreme Court, every federal circuit, and multiple states including Idaho, have recognized that there is a public right to attend pretrial hearings in criminal matters.

The First Amendment protects the public’s right to attend trials as part of the right to petition government. The business of the courts is done in our name, so we are entitled to see it, discuss it, criticize it, and, if we choose, participate in changing it. We have a right to see that the justice administered in our name is fairly administered and transparency provides confidence that corruption or failure to follow established rules will be detected and corrected. For this reason, closed proceedings must be rare; justified by specific findings leading to the conclusion that there is a critical interest at stake that can only be served by closing the courtroom; and narrowly tailored to exclude the public only to the extent necessary to protect the critical interest at stake. These requirements, and the Supreme Court cases they derive from, are described summarily by the Utah Supreme Court:

In Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986), a California Superior Court judge closed a preliminary hearing to the public in a case that had received national publicity, concluding it was necessary to protect the defendant’s right to a fair trial because “only one side may get reported in the media.” It also denied the press access to transcripts of the hearing, and the press then sued. The U.S. Supreme Court rejected the argument that the threat of publicity about the hearing justified closing the courtroom, observing that “one of the important means of assuring a fair trial is that the process be open to neutral observers.” The Court also disagreed that only the trial is required to be open to the public, holding that proceedings that have historically been open to the public and in which public access plays a positive role in the functioning of the process are presumed to be open.

If the historical tradition of the hearing and public oversight role favor openness, then the First Amendment limits the court’s ability to close it. Judge Judge would have to find

“an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”

Certainly, the defendant’s right to a fair trial is an important interest, and in some cases, there is a risk that the hearing will disclose evidence that would not ultimately be admissible or would serve to engender a negative public opinion of the defendant. But the Press-Enterprise Court rejected the argument that these considerations necessarily justify denying public access to sensitive hearings. First, pretrial publicity is a matter for voir dire, where jurors can be questioned about their exposure and the opinions they have formed as a result. And second, because the limitation must be narrowly tailored to preserving the interest at stake, rarely will closing an entire hearing be justified - there will almost always be alternatives available.

The Idaho Supreme Court acknowledged the requirements of Press-Enterprise in evaluating its own rules relating to closing preliminary hearings in Cowles Publishing Co. v. Magistrate Court of First Judicial District, 800 P.2d 640 (1990). So, this is not some novel or obscure legal requirement - it’s been the law for decades at both the federal and the state levels.

How does this apply to Bryan Kohberger’s motion to compel discovery that relates to his cell phone data?

There is no history and tradition of hearing motions to compel only in closed session. Certainly there is no rule requiring it, and even in this very case, we have previously observed motions to compel that were argued in open court. But further, the process concerns potentially exculpatory evidence that the office of the elected prosecutor is alleged to be withholding from a man it is seeking to put to death. This is precisely the kind of information the public needs to know to be educated participants in their local government - is the prosecutor who represents the public behaving appropriately in such a high-stakes case? Do we approve of this conduct by an elected official acting as our representative?

If the motion to compel is presumptively open to the public under the Press-Enterprise standard, which I believe it is, then it is protecting the defendant’s right to a fair trial that can potentially justify the closure. But is that even what the State is arguing here? They’re trying to say the State *and* the defense will be prejudiced if the information is public.

So the State would have us believe that in a case where the defendant has already been convicted and sentenced in the media on the fact of the charges, the evidence described in the probable cause affidavit, and the wide reporting of false information allegedly confirming his guilt, that learning the identity of the information the State is allegedly withholding would somehow prejudice him … because it might exonerate him? It looks a lot more like the State is simply trying to protect *itself* from embarrassment and to prevent the public from hearing information that might suggest doubt that Bryan Kohberger committed the crime. This is not only appallingly hypocritical, but it completely undermines the reason why the First Amendment protects public access to criminal hearings in the first place - so that we can monitor whether our elected officials are misusing the process and treating the accused unfairly.

So why am I pissed at the State if I’m Judge Judge?

The court relies heavily on the parties to insulate its rulings from challenge. Prosecutors enjoy enormous institutional preferences from judges - their legal interpretations are assumed to be correct, their witnesses are assumed to be truthful, and their requests are assumed to be well-grounded in the law and the facts. So judges trust the prosecutor to give them the legal analysis and the facts that they need to justify giving the prosecutor what he wants.

With this filing, the prosecutor has made it clear that Judge Judge cannot rely on them to protect his rulings. They not only gave him wrong law, they have ignored the applicable law. They have not proposed exactly what specific factual findings they are asking him to make to support a conclusion that hearing the information they are not handing over to the defense and their reasons for it are so damaging to Bryan’s right to a fair trial that the entire hearing must be closed off to observers. They have not considered any less restrictive alternatives to closing the courtroom for the entire hearing and suggested why those would be insufficient under the circumstances. In effect, they’ve handed the judge a live grenade, assured him it’s an apple, and invited him to take a bite.

Judges are busy, and they don’t want to have to exhaustively and independently research every legal issue that comes before them. But here, it’s going to take the court all of about five minutes to discover that the law the State is pointing to doesn’t apply, and the law that does apply is significantly more restrictive than the State has let on. How, after this, can he trust them to be thorough and reliable?

From the very beginning of this case, the parties and the judge have been all too willing to give the First Amendment short shrift. I don’t know if this desire for secrecy is cultural in Idaho - right next door in Washington, we have a vibrant open courts jurisprudence arising under our own constitution to such an extent that even imagining sealing off a hearing like this is virtually unheard-of. But it has already led to voluminous litigation that has taken their time and attention away from the merits of this case. Closing the courtroom has every likelihood of inviting more challenges from the press. If there are reasons to believe that Bryan Kohberger is not the murderer, that information needs to be shared to counter the pervasive public narrative of his guilt that has already been established so that the jury pool is not hearing only one side. It’s time for everyone in charge of this case to embrace the value of transparency - the entire world needs to see for itself whether the process unfolding in Judge Judge’s court is a fair one.