I would be surprised if they did win a dismissal.
I do not share the idea that "If he had a substantive alibi, he wouldn't be sitting in jail at this very moment."
There has been an unbelievably huge amount of pretrial publicity prior to seating the GJ. Thinking back to the D's two recent witnesses on the amount of media exposure and on bias and how any exposure to media can create bias, even subconsciuously. MOO
The D is privy to much more information than is out in the public realm. I believe that AT clearly stated what the D believes in her conclusion. MOO
From the Defendants reply: Conclusion
A grand jury was empaneled at time when the small community of Moscow, Idaho had been exposed to months of intense local, national, and international media coverage. Because the State has provided extensive discovery, Mr. Kohberger knows that exculpatory evidence exists. Whether fair and impartial panel of grand jurors was assembled amidst intense media coverage is significant question the Defense must evaluate. See I.C.R.6.7 and l.C 19-1003 and State v. Roberts, 188 P. 895, 897 (1920.) Whether inadmissible or exculpatory evidence was presented to the grand jury is significant question the defense must evaluate. See l.C.R. 6.2(a), 6.6 and l.C. §19-1107. And, while there are many other legal arguments Mr. Kohberger may pursue related to the grand jury proceedings, how the grand jury was selected and what evidence was presented, illustrate good cause for the Defense’s need for all materials set forth in its motion.
Re: IF the exculpatory evidence is substantial and it was not presented to the GJ.
Dept of Justice:
9-11.233 - PRESENTATION OF EXCULPATORY EVIDENCE
In
United States v. Williams, 112 S.Ct. 1735 (1992), the Supreme Court held that the Federal courts' supervisory powers over the grand jury did not include the power to make a rule allowing the dismissal of an otherwise valid indictment where the prosecutor failed to introduce substantial exculpatory evidence to a grand jury. It is the policy of the Department of Justice, however, that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person. While a failure to follow the Department's policy should not result in dismissal of an indictment, appellate courts may refer violations of the policy to the Office of Professional Responsibility for review.
www.justice.gov
Even if there is substantial exculpatory evidence that was not presented to the GJ and that discovery fails to result in a dismissal, it will still make the public aware (eventually) of how the case against BK has been handled. MOO
TImeline of events regarding Indictment to request of GJ proceedings
From the motion to Stay:
PROCEDURAL BACKGROUND Mr. Kohberger was indicted by grand jury on May l6, 2023. He filed “Motion to Make Available the Record of all Proceedings of the Grand Jury Pursuant to l.CR. 6.2” and MOTION TO STAY PROCEEDINGS Page STATE OF IDAHO Plaintiff, V. BRYAN C. KOHBERGER, Defendant. “Motion Requesting Release of Grand Jury Materials under Qualified Protective Order” on May l9, 2023. The State then filed their “State’s Response to Defendant’s Motions Regarding Grand Jury Record and Transcript” and proposed order on May 30, 2023. The parties are not able to reach agreement regarding the release of grand jury materials. [n further opposition of Mr. Kohberger’s motion for the preparation of grand jury records, on June 6, 2023, the State filed their “State’s Supplemental Response to Defendant’s Motions Regarding Grand Jury Record and Transcript”. hearing is scheduled for June 26, 2023, to argue this contested matter. Mr. Kohberger stood silent at his initial arraignment to preserve his right to contest the indictment. He also asserted his right to speedy trial pursuant to the United States and Idaho Constitutions. Jury trial is scheduled to begin October 2, 2023. Time is of the essence.
ARGUMENT By the time this Court hears argument on the preparation of the grand jury proceedings, almost six weeks will have passed from the time of the indictment. Preparation of the grand jury record will then take additional time. Mr. Kohberger has the right and intends to contest the indictment. ldaho Code 2-213 (l) allows the defense to seek stay of proceedings: [w]ithin seven (7) days afier the moving party discovers or by the exercise of diligence could have discovered the grounds therefor, and in any event before the trial jury is sworn to try the case, party may move to stay the proceedings, and in criminal case to quash the indictment, or for other appropriate relief, on the ground of substantial failure to comply with this chapter in selecting the grand or trial jury. Mr. Kohberger seeks to stay the proceedings as appropriate relief while the matter of the grand jury record is argued and prepared. He is exercising due diligence to discover the grounds upon which to file motion to dismiss related to how the grand jury was selected.‘ He is being delayed through no fault of his own.
Wondering if the Delay in getting the GJ transcript is considered to violate the Fifth/Fourteenth and Sixth Amendments? MOO
www.law.cornell.edu
www.law.cornell.edu
The wait for the hearing on the Motion to Compel is a long time too IMO. Motion to Compel was filed 5/4 and the hearing is set for 6/27.
IMO this prosecution is not acting like they have "the goods" against BK. I believe that the Grand Jury route was chosen because the prosecution was having difficulty with the preliminary hearing hurdle. MOO
And, I don't believe the Defense is stalling.
JMO/MOO
