4 Univ of Idaho Students Murdered, Bryan Kohberger Arrested, Moscow, Nov 2022 #90

[Boxer]

I wouldn't consider this a delay tactic. The defense has found something that really truly IS an issue and needs to be examined in depth. It would be completely unethical for the defense not to take this up with the State Supreme Court if they were not satisfied with the resolution in JJ's courtroom, which they were not.

All JMO.

MOO it's a delay tactic.
Finding a sleeper constitutional issue is a delay tactic as it has nothing to do with the with the accused's guilt or innocence, only when and if a trial can go forward.

 

[10ofRods]

Logsdon said it while making his arguments at the hearing, you will hear it if you watch the CourtTV video of the hearing. Sorry to refer you to that lengthy speech, I know it's tedious to listen to!

Edit: I re-watched to find a timestamp. Logsdon mentioned the GJ shortly after the 19:15 mark in the video.
Exact quote is:
"We know, from the grand jurors, that at least six of them, wanted to hear more, until they were essentially cut off and told probable cause is the standard".

Some people always want to hear more. They can even have made up their minds and still want to hear more, meaning that they are curious.

Interesting that even Logsdon doesn't say, "They needed to have more." Or "They were undecided until they got more." Or "They did not feel the evidence was enough."

Just that some of them were willing to sit longer and wished they could hear more. That could very well be me, in such a case. But it would be a separate issue, in my mind, than the issue of whether what was already presented met probable cause. I"m the type of person who always wants more.

Do I have to have more? No.

I am able to make a distinction between being willing to learn more and having to know more in order to make a decision. Heck, I even research decisions that I've already made and can't be revoked. I will never turn down the offer of more information. I would expect there are lots of people like me in Latah County.

IMO. I believe Logsdon would have worked more into his statement if the vote was actually 10-6. He's relying on innuendo to avoid breaking some other legal rules, but bumping right up against those rules, as one does when one is a defense attorney.

 

[schooling]

@girlhasnoname
Yes, I understand that, but it has nothing to do with my point.
What is concerning to me is the aspect I outlined in my previous post #124. Which I will rephrase below:
The prosecution was unopposed during the grand jury, and what is more, they could lay it all out in total secrecy. Yet six of the jurors said we want more. This tells me the prosecution didn't have anything to show them that was of slam dunk "he's guilty" quality. It tells me they don't have much more than what's in the PCA.
The grand jurors were then told the standard is probable cause not BARD, and then they agreed to indict. What this means is these six jurors felt that what they were shown would not have been enough to indict if the standard were higher. Six out of 16 is not a negligible number.
At trial, the standard will be higher, and the prosecution won't be unopposed: the defense will undermine each and every piece of evidence, cross examine witnesses, bring in their own exculpatory elements etc. So it is going to be a lot more difficult for the prosecution, and we now see they were already struggling when it was easy at the grand jury.
We have been led to believe from the beginning that although we aren't privy to it, the prosecution has a lot more than what's in the PCA, but it would appear this is a bluff. This trial is not going to be the cakewalk for the prosecution that some people seem to think it is.
MOO.

Where are they going to find 12 people who unanimously believe that the videos, cell evidence and DNA are just big misunderstandings?

From the little evidence that I’ve seen….not in this universe IMO. Maybe 1 or 2. Maybe as high as 4. But eventually they’ll find the 12 that vote to convict.

They’ll retry him as many times as it takes for them to get a conviction. and no judge in their right mind will issue him bail in between those.

BK will never see a street again. I take solace in that because I believe the guy is guilty. 110% so.

Sidenote: I firmly believe that it will only take one trial and he’ll receive the death penalty.

MOO

 

[10ofRods]

So the Defense actually reveal the GJ vote count in that hearing?

I'm really surprised. I haven't listened to the hearing - but is an actual 10-6 VOTE actually mentioned??

 

[10ofRods]

Agree, but can a Manager really know everyone who comes in/out of their restaurant daily? If he did go to check one of the girls out, he may have been on his best behavior and used cash, trying to keep a low profile. Although we do know BK isn't one to keep a low profile while out in public.

Either is possible is all I'm saying IMO.

I keep thinking of the restaurants I've worked at and how we would take our breaks behind the restaurant. There's an alley behind MG that has the back doors to several restaurants and service businesses. I can imagine college age people winding up there, to smoke or just to pal around.

I can imagine BK just being in Moscow, maybe just hanging around. What strikes me about that alley behind Mad Greek is that it is so close to the Moscow PD (at least I think so - maybe a local can chime in).

I've been thinking he might have tried to hang out there and that maybe occasionally some policemen were in the mix (they are a community-oriented police department, I'm pretty sure some of the walk by or say "hi" to some of the local business owners - and I can envision BK hanging out in places where he could see police and observe them, smile and say "hi.")

That's how it was in my similarly sized town. Groups of young people would just hang out in the downtown area, and the police would walk or drive by. They liked to park on Main Street and walk it, and the alleys on either side of Main Street. I think larger cities don't have the ability to do this but...Moscow PD is a 2-3 minute walk from the Mad Greek. And if I were driving to work, I'd park nearer the police station side, myself. It's possible that BK saw some of the workers at the restaurant in the later hours, as they were getting off work.

Just adding on to the list of possibilities. Speculation of course, but I know that guys hung out behind the restaurants where I worked and tried to interact with we young women as we left at 10pm - midnight. They were polite and sometimes offered rides or just wanted to talk.

 

[Boxer]

BK's lawyers are using any and everything they can to vigorously defend their client: that's their job.
Their client apparently felt slighted by the prosecution's resort to a grand jury when his team had been gearing up for a PH. So they are trying to undo that, and pave the way for a future appeal if necessary. There's nothing ridiculous about it. It's just their job to defend him zealously.

I asked earlier in the thread if it was known how many grand jurors were convened for this GJ. The reason is because I was very surprised to hear that six grand jurors felt they needed more information to make a decision. If it was only the requisite minimum 16 members, then 6 undecided is quite a high proportion. This is with the prosecution speaking unchallenged. The number of undecideds could very well be even higher at trial, when the defense team will be picking apart everything the prosecution presents, and possibly presenting exculpatory tidbits of their own.
In my opinion, the six undecideds also tends to hint against the often heard notion that the prosecution has sooo much more than what we've seen in the PCA.

How many Grand Jurors were confirmed there?
Unless I have misunderstood, the minimum 16 seems can't be the number as 12 need to concur, so at least 18, but more likely the full 23.

 

[North_Idaho_Nony]

I keep thinking of the restaurants I've worked at and how we would take our breaks behind the restaurant. There's an alley behind MG that has the back doors to several restaurants and service businesses. I can imagine college age people winding up there, to smoke or just to pal around.

I can imagine BK just being in Moscow, maybe just hanging around. What strikes me about that alley behind Mad Greek is that it is so close to the Moscow PD (at least I think so - maybe a local can chime in).

I've been thinking he might have tried to hang out there and that maybe occasionally some policemen were in the mix (they are a community-oriented police department, I'm pretty sure some of the walk by or say "hi" to some of the local business owners - and I can envision BK hanging out in places where he could see police and observe them, smile and say "hi.")

That's how it was in my similarly sized town. Groups of young people would just hang out in the downtown area, and the police would walk or drive by. They liked to park on Main Street and walk it, and the alleys on either side of Main Street. I think larger cities don't have the ability to do this but...Moscow PD is a 2-3 minute walk from the Mad Greek. And if I were driving to work, I'd park nearer the police station side, myself. It's possible that BK saw some of the workers at the restaurant in the later hours, as they were getting off work.

Just adding on to the list of possibilities. Speculation of course, but I know that guys hung out behind the restaurants where I worked and tried to interact with we young women as we left at 10pm - midnight. They were polite and sometimes offered rides or just wanted to talk.

That’s where our old police station was — the big new one folks have seen in the coverage is new & officially opened in 1/2022, IIRC.

The last I heard, the UI purchased the old PD building & planned to use it primarily as an art gallery & Vandal store:
Moscow city council approves UI’s purchase of police station

About the Gallery | Prichard Art Gallery

HTH!

 

[North_Idaho_Nony]

How many Grand Jurors were confirmed there?
Unless I have misunderstood, the minimum 16 seems can't be the number as 12 need to concur, so at least 18, but more likely the full 23.

According to the ISSC (Idaho State Supreme Court:
Rule 6. Formation of the Grand Jury | Supreme Court

“Number of Jurors. A grand jury must consist of 16 qualified jurors of the county in which the grand jury sits, but 12 or more members constitute a quorum. A grand jury can deliberate and take action if a quorum is present.”

Where is 23 coming from?

ETD: also note this
“(c) Finding and Return of Indictment. An indictment may be found only by agreement of 12 or more jurors. It must be signed by the presiding juror and must be returned by the grand jury to a district judge. The indictment must be in writing and have endorsed on it the names of all witnesses examined before the grand jury about the subject matter of the indictment.”
I.C.R. 6.5. Indictment | Supreme Court

 

[girlhasnoname]

How many Grand Jurors were confirmed there?
Unless I have misunderstood, the minimum 16 seems can't be the number as 12 need to concur, so at least 18, but more likely the full 23.

I remember in one of the hearings that on CourtTV that Judge JJ said something to the effect that it wasn't the normal amount, but he also said he understood how you wouldn't always get the 23 because of conflicts, availability, etc.

The Defense (Bloviator Logsdon) said 16 in open court, even though he shouldn't have divulged that and the Judge had it cut.

MOO

 

[girlhasnoname]

So the Defense actually reveal the GJ vote count in that hearing?

I'm really surprised. I haven't listened to the hearing - but is an actual 10-6 VOTE actually mentioned??

No, Logsdon mentioned (which was totally unprofessional) the number in statement to the Judge along the lines of of "out of 16 jurors 6 wanted more information until the State reiterated that indictment was based on probable cause, not guilt BARD". It wasn't an official vote from my understanding after watching the video.

JMO

 

[North_Idaho_Nony]

I remember in one of the hearings that on CourtTV that Judge JJ said something to the effect that it wasn't the normal amount, but he also said he understood how you wouldn't always get the 23 because of conflicts, availability, etc.

The Defense (Bloviator Logsdon) said 16 in open court, even though he shouldn't have divulged that and the Judge had it cut.

MOO

IANAL, but I think maybe people are confusing federal grand jury requirements with Idaho state grand jury requirements?

BK’s grand jury was required to follow Idaho state grand jury requirements:
Idaho Criminal Rules (I.C.R.) | Supreme Court
Then scroll down to:
TITLE III – THE GRAND JURY, THE INDICTMENT AND THE INFORMATION

 

[wendy44]

Has anyone found any Idaho law that actually says BARD is required for an indictment? Everything I've read so far indicates probable cause to indict, but maybe I just haven't been able to find it.

Idaho slayings: Bryan Kohberger's attorneys ask judge to dismiss indictment

Attorneys for Kohberger, who is accused of killing four University of Idaho students, argued in a court filing that the grand jury was "misled."

www.nbcnews.com

This article from July says that the defense argues "that the grand jury was instead "erroneously instructed" with the standard of proof required for a "presentment," which they say would mean having a "reasonable ground for believing the defendant has committed" an alleged offense. "

I'm not sure I understand this distinction--are they arguing that probable cause is required to present to the grand jury but BARD is required to indict?

 

[girlhasnoname]

Has anyone found any Idaho law that actually says BARD is required for an indictment? Everything I've read so far indicates probable cause to indict, but maybe I just haven't been able to find it.

Idaho slayings: Bryan Kohberger's attorneys ask judge to dismiss indictment

Attorneys for Kohberger, who is accused of killing four University of Idaho students, argued in a court filing that the grand jury was "misled."

www.nbcnews.com

This article from July says that the defense argues "that the grand jury was instead "erroneously instructed" with the standard of proof required for a "presentment," which they say would mean having a "reasonable ground for believing the defendant has committed" an alleged offense. "

I'm not sure I understand this distinction--are they arguing that probable cause is required to present to the grand jury but BARD is required to indict?

Idaho Criminal Rule 6.5. Indictment

(a) Sufficiency of Evidence to Warrant Indictment. If the grand jury finds, after evidence has been presented to it, that an offense has been committed and that there is probable cause to believe that the accused committed it, the jury ought to find an indictment. Probable cause exists when the grand jury has before it evidence that would lead a reasonable person to believe an offense has been committed and that the accused party has probably committed the offense.

(b) Multiple Charges of Indictment. There may be two or more separate charges in a grand jury indictment, but each must be voted on separately by the grand jury.

(c) Finding and Return of Indictment. An indictment may be found only by agreement of 12 or more jurors. It must be signed by the presiding juror and must be returned by the grand jury to a district judge. The indictment must be in writing and have endorsed on it the names of all witnesses examined before the grand jury about the subject matter of the indictment.

(d) List of Jurors’ Votes. The presiding juror must prepare separate lists of all jurors voting in favor of and jurors voting against the indictment. The lists must remain sealed but may be disclosed to the prosecuting attorney, the defendant and defendant's counsel by order of the court.

(e) Return of No Bill. If the grand jury concludes that there is no probable cause and that no indictment will be returned, that fact must be placed in writing and maintained under seal by the court as part of the record of that proceeding.



(Adopted February 22, 2017, effective July 1, 2017.)

 

[girlhasnoname]

Has anyone found any Idaho law that actually says BARD is required for an indictment? Everything I've read so far indicates probable cause to indict, but maybe I just haven't been able to find it.

Idaho slayings: Bryan Kohberger's attorneys ask judge to dismiss indictment

Attorneys for Kohberger, who is accused of killing four University of Idaho students, argued in a court filing that the grand jury was "misled."

www.nbcnews.com

This article from July says that the defense argues "that the grand jury was instead "erroneously instructed" with the standard of proof required for a "presentment," which they say would mean having a "reasonable ground for believing the defendant has committed" an alleged offense. "

I'm not sure I understand this distinction--are they arguing that probable cause is required to present to the grand jury but BARD is required to indict?

They're fighting the rules of law of the State of ID and many other states from probable cause to BARD. Not going to happen until the laws are changed.

MOO

 

[Balthazar]

MOO it's a delay tactic.
Finding a sleeper constitutional issue is a delay tactic as it has nothing to do with the with the accused's guilt or innocence, only when and if a trial can go forward.

I prefer that all issues that will obviously lead to an appeal be resolved if they can be prior to trial. IMO, the more resolved everything is prior to trial, the better the trial and it will result in far less expense for taxpayers. Therefore, I don't see this as a delay tactic at all but standard good legal practice.

 

[Nila Aella]

Has anyone found any Idaho law that actually says BARD is required for an indictment? Everything I've read so far indicates probable cause to indict, but maybe I just haven't been able to find it.

Idaho slayings: Bryan Kohberger's attorneys ask judge to dismiss indictment

Attorneys for Kohberger, who is accused of killing four University of Idaho students, argued in a court filing that the grand jury was "misled."

www.nbcnews.com

This article from July says that the defense argues "that the grand jury was instead "erroneously instructed" with the standard of proof required for a "presentment," which they say would mean having a "reasonable ground for believing the defendant has committed" an alleged offense. "

I'm not sure I understand this distinction--are they arguing that probable cause is required to present to the grand jury but BARD is required to indict?

This is the Idaho Statute cited by JL

TITLE 19
CRIMINAL PROCEDURE
CHAPTER 11
POWERS AND DUTIES OF GRAND JURY
19-1107. SUFFICIENCY OF EVIDENCE TO WARRANT INDICTMENT. The grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury.
History:
[(19-1107) Cr. Prac. 1864, sec. 208, p. 238; R.S., R.C., & C.L., sec. 7636; C.S., sec. 8795; I.C.A., sec. 19-1007.]

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjVy43d-p6CAxXiEFkFHWiRAUUQFnoECA0QAw&url=https%3A%2F%2Flegislature.idaho.gov%2Fstatutesrules%2Fidstat%2Ftitle19%2Ft19ch11%2Fsect19-1107%2F%23%3A~%3Atext%3D19%252D1107.%2Cconviction%2520by%2520a%2520trial%2520jury.&usg=AOvVaw16jKUWZsAf9-45pQu_3Uxt&opi=89978449

 

[North_Idaho_Nony]

This is the Idaho Statute cited by JL

TITLE 19
CRIMINAL PROCEDURE
CHAPTER 11
POWERS AND DUTIES OF GRAND JURY
19-1107. SUFFICIENCY OF EVIDENCE TO WARRANT INDICTMENT. The grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury.
History:
[(19-1107) Cr. Prac. 1864, sec. 208, p. 238; R.S., R.C., & C.L., sec. 7636; C.S., sec. 8795; I.C.A., sec. 19-1007.]

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjVy43d-p6CAxXiEFkFHWiRAUUQFnoECA0QAw&url=https%3A%2F%2Flegislature.idaho.gov%2Fstatutesrules%2Fidstat%2Ftitle19%2Ft19ch11%2Fsect19-1107%2F%23%3A~%3Atext%3D19%252D1107.%2Cconviction%2520by%2520a%2520trial%2520jury.&usg=AOvVaw16jKUWZsAf9-45pQu_3Uxt&opi=89978449

It’s also worth noting the Idaho State Supreme Court has ruled the GJ standard of proof is probable cause, which trumps legislation from 1864, much to Logsdon’s displeasure, LOL :
“The grand jury is an accusing body and not a trial court. Its functions are investigative and charging. The purpose of both a grand jury proceeding and a preliminary hearing is to determine probable cause.”

State v Edmonson 113 Idaho 230 (Idaho 1987)

ETA: BBM

 

[Nila Aella]

It’s also worth noting the Idaho State Supreme Court has ruled the GJ standard of proof is probable cause, which trumps legislation from 1864, LOL:
“The grand jury is an accusing body and not a trial court. Its functions are investigative and charging. The purpose of both a grand jury proceeding and a preliminary hearing is to determine probable cause.”

State v Edmonson 113 Idaho 230 (Idaho 1987)

As I understand his argument, the Supreme Court lowered the threshold from BARD to Probable Cause without anyone addressing the constitutionality of the change. The whole history of the Field code and the reasoning behind including that language (warranting a conviction) in the first place is interesting. IMO requiring BARD in a GJ would not change the GJ into a trial court, it would still be an accusing body. They are only hearing the prosecution side of the case. JMO

 

[wendy44]

This is the Idaho Statute cited by JL

TITLE 19
CRIMINAL PROCEDURE
CHAPTER 11
POWERS AND DUTIES OF GRAND JURY
19-1107. SUFFICIENCY OF EVIDENCE TO WARRANT INDICTMENT. The grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury.
History:
[(19-1107) Cr. Prac. 1864, sec. 208, p. 238; R.S., R.C., & C.L., sec. 7636; C.S., sec. 8795; I.C.A., sec. 19-1007.]

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjVy43d-p6CAxXiEFkFHWiRAUUQFnoECA0QAw&url=https%3A%2F%2Flegislature.idaho.gov%2Fstatutesrules%2Fidstat%2Ftitle19%2Ft19ch11%2Fsect19-1107%2F%23%3A~%3Atext%3D19%252D1107.%2Cconviction%2520by%2520a%2520trial%2520jury.&usg=AOvVaw16jKUWZsAf9-45pQu_3Uxt&opi=89978449

Okay, I understand. So it doesn't necessarily spell it out, Beyond a Reasonable Doubt, but the defense is saying that essentially it is the standard of BARD to instruct the jury to indict if the evidence would warrant a jury conviction.

I'm not sure if this would be a constitutional issue since interpretation of this statue doesn't seem to contradict anything in Idaho's constitution. And since the Idaho Supreme Court has already issued written opinions that Probable Cause is the standard for indictment, the judge here has to go with that.

 

[North_Idaho_Nony]

As I understand his argument, the Supreme Court lowered the threshold from BARD to Probable Cause without anyone addressing the constitutionality of the change. The whole history of the Field code and the reasoning behind including that language (warranting a conviction) in the first place is interesting. IMO requiring BARD in a GJ would not change the GJ into a trial court, it would still be an accusing body. They are only hearing the prosecution side of the case. JMO

Sorry for any confusion — I cited State v Edmonson out of convenience (and because that particular challenge came from right here in Latah County!). But, I do think Judge Judge made the point quite clearly that PC has long bern the GJ standard in Idaho:

“Deputy Attorney General Jeff Nye, who is assisting the prosecution, countered that the Idaho Supreme Court has ruled on the issue multiple times, repeatedly upholding the probable cause standard. That burden of proof was properly met during Kohberger's grand jury proceeding, he said.

Second District Judge John Judge agreed, noting that grand juries have used the probable cause standard to indict people for 100 years in Idaho. He said Kohberger's defense attorneys would need to bring the issue to the Idaho Supreme Court if they want to pursue it further.”

https://www.idahostatesman.com/news/nation-world/national/article281101543.html

As I understand JL’s argument, he was basically rearguing now long retired ISSC Justice Bistline’s dissenting opinion in State v Edmonson. But, IANAL so I could well be wrong!

Bistline’s dissent was wonderful & masterful, MOO, but it was still only a dissent from the majority opinion.

We differ in that I think PC is an appropriate GJ standard in Idaho, but I did find Bistline’s dissent intriguing & powerful. Would Idaho’s current Supreme Court decide differently a la Bistline’s or JL’s argument? Magic 8 Ball says: Very Doubtful.

All MOO, as always.