Idaho murders: Kohberger defense reaching out to potential jurors with 'survey' before judge banned contact

Bryan Kohberger's defense team is crying foul after a judge ordered both sides in the Idaho student murders case to stay away from potential jurors ahead of a change-of-venue hearing that could move the upcoming trial out of Latah County, where the slayings happened.

"The late Friday afternoon filing was a strategic action by the State," defense attorney Anne Taylor wrote in a motion to rescind Judge John Judge's ban.

She argued that a survey the defense was conducting on potential jurors met the legal standards warranted in a potential death penalty case.

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Taylor is arguing that because the order came before a hearing on the issue, the suspected quadruple murderer's 14th Amendment rights to due process were violated.

"Both parties are prohibited from contacting potential jurors about this case, including via third parties, until further order of this Court," Judge John Judge wrote in a short order March 22 made public Monday evening. "A hearing on this issue will be held as soon as practicable."

Read Kohberger defense team's Motion to Rescind:

David Gelman, a New Jersey-based defense attorney and former prosecutor who has been following the case, said the survey in dispute is part of the defense's effort to prepare for a change-of-venue hearing.

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"In order to gather sufficient evidence to support their application, the defense retained an expert who ‘sampled’ the potential juror pool to assess potential bias in Latah County," he told Fox News Digital. "This was done by way of a telephone survey of 400 residents."

Taylor's office hired a social psychologist named Bryan Edelman to conduct the polling. In her filing, Taylor conceded "many" of Edelman's questions about "media influence" are "NOT factually correct."

But Edelman wrote in a signed declaration that none of the questions "included any information that was not widely reported and available in the public domain." 

Memorandum in support of defense motion to rescind:

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Latah County Prosecuting Attorney Bill Thompson took issue with the questions, which have not been made public, and asked the judge to halt the survey last week in a motion filed under seal.

According to the filings, Thompson accused the defense of violating a sealed court order regarding the survey by discussing case specifics and by disclosing information that would be inadmissible at trial.

The judge agreed, but Taylor is asking him to rescind the order so that the surveys can resume ahead of a hearing on the issue.

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"The defense is not ‘disclosing’ information," Taylor wrote to the court. "The defense is asking prospective jurors in the county of Latah as to what information they are aware of that was previously ‘disclosed’ vis-a-vis the press."

"Two things seem to favor the defense," Gelman said. "First, the surveys do indeed appear to be about gathering information as opposed to disseminating information. Second, even if the motion to change venue were denied, any potential adverse impact upon the juror pool because of the survey will be not only negligible due to the small number of jurors contacted, but also addressable via voir dire."

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During jury selection, the defense would have a chance to ask potential jurors if anyone asked them to discuss the case and whether that would impact their ability to be fair and impartial, he said.

Changes of venue can be rare but can happen in high-profile cases, such as the double murder trials of Idaho's "cult mom" Lori Vallow and California's Scott Peterson.

"I highly doubt the defense did anything to run afoul of the court's order, and I think the defense is absolutely doing its due diligence," said Edwina Elcox, a Boise-based defense attorney who previously represented Vallow. "The defense made a sound legal argument with respect to what they must establish for a change of venue."

However, she said, the answer to concerns about the validity of the survey's questions is contained in the questions themselves. They have not been made public, but Edelman's declaration has.

"I think the defense’s expert backs up the reasoning behind the defense strategy," Elcox said.

Kohberger, 29, was a Ph.D. student studying criminology at Washington State University in Pullman, Washington, at the time of the murders of four undergrads at the nearby University of Idaho in Moscow, Idaho, Nov. 13, 2022.

The home invasion attack killed Madison Mogen and Kaylee Goncalves, both 21, and Xana Kernodle and Ethan Chapin, both 20. Two other housemates survived, including the only publicly known eyewitness.

Moscow is the seat of Latah County and home to about half of its population, not including students at the university. The defense survey aimed to contact about 400 county residents over the age of 18.

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Thompson has countered that the case is already receiving global attention and media coverage and that a change of venue would not be necessary.