ID - 4 Univ of Idaho Students Murdered - Bryan Kohberger Arrested - Moscow # 70

[MsBetsy]

This is just my opinion, but I think it is increasingly unlikely that the prosecutor will seek a death penalty in this case.

I'm thinking the same. I think death penalty cases are very costly and often end up in years of appeals.

I'm sure the prosecution will discuss this option with the families before they make a decision.

 

[steeltowngirl]

As if 1 parent of 1 victim wasn't enough of a complication -
Now we have 3 parents of 2 different victims.
This added a ball of wax inside the can of worms.

Just catching up to this part.. just wow.
I cannot imagine what all the parents are feeling after this…

Your child is murdered in the most savage of ways.
As the rest of the country is preparing for Thanksgiving, you are burying your child. The holidays come and go without your child home for break, now gone forever.
Then the madman is caught, some relief!
Now this.. your legal woes are out for the whole world to see, and maybe you even blame yourself for having had involvement with the attorney.

I hope all of the parents are finding support and courage to go on.
I would be shattered.

jmo

 

[Auntie Cipation]

IMO I'm afraid a Pandora's box of drugs has been opened. Just a guess, but I can see a possible change of venue and attorney. Bet that Judge wishes they could have put a gag order on this information. The internet has been ablaze with this info and various scenarios to go with it from early on.

Wouldn't there be a number of Washington or Montana or Utah death penalty-qualified defense attys who are also licensed to practice in Idaho? It seems like either bringing in a new defense atty or moving the case to an adjacent state might be the easiest solution? MOO

 

[Luna20]

The real conflict here is giving a suspect ANY opportunity to appeal. To me that is common sense, why even go there. Suspects look for every reason to appeal.

AT dropping CN and taking the BK case isn’t warm and fuzzy but that’s not the imminent concern, an appeal is.

 

[Cassady]

<snipped for focus>

We don't know if AT assigned herself to BK's case. It may have been a directive by the Court or state board/entity that the Public Defender's Office reports to.

And even if AT did accept the case on her own initiative, she may have had no choice, since she is the only death penalty qualified attorney in the North Idaho region, so this was her responsibility under her contract with the state.

Well, it's possible I suppose, but BK would have to raise this concern in the trial itself and not afterwards, as per State v. Severson, 147 Idaho 694, 215 P.3d 414 (Idaho 2009). And if he does raise it, then there would be a separate inquiry trial to look into COI allegations.

IMO the prosecutor is far more likely to raise this concern than BK. However, I also think there is no real conflict here, and nothing that AT could bring from representing CN in her criminal charges would impact her defense of BK that could not be also raised by any defense lawyer.

Respectfully, this to me is a hypothetical conflict that you have explained very well. But it seems to me the existence of an actual conflict that could affect BK's representation can only be determined if one knows the content of communications between CK (CN) and AT (or any other PD staffer). That's not something we're likely to know, since it's in an attorney client communication and CK would have no interest in disclosing, for example, that she wants to negotiate for leniency in exchange for turning states evidence against her dealer, Mr. ABC...

I'm not saying the hypothetical couldn't exist. Just that it is so obvious that AT and the Idaho PD must have considered the question before AT was assigned, as part of the required conflicts assessment and intake process for BK.

Thus, the term "potential" COI. However that potential becomes very real as soon as the defendant starts requesting that the previous client's involvement with drugs be investigated. The previous client's involvement with drugs is exactly what the previous representation involved and there is perhaps information gained in confidence that could be helpful to the current client. That is a real mess any way you slice it...IMO

 

[GA_Peach]

The problem for the defendant's attorney arises when the defendant wants to explore alternate theories and ask his attorney to start investigating the parent(s) of one of the victims and their involvement with drugs. The defendant may want to look at whether some drug dealers had motive to hurt the family of someone who stole/snitched/etc against said drug dealer.

Is his current attorney in a position to tell her investigators to go investigate her former clients? Does the attorney have to withhold information from the client or their investigator because she obtained that information through her former representation of the person her client wants investigated? To do so she would have to get the previous client's waiver to divulge that information to the new client. IMO....not sure the victim's parents would waive attorney confidences so the attorney could vigorously represent the person accused of killing their child.

Now perhaps the defendant's attorney has not thought about this potential angle, but as soon as the defendant hears that any of the victim's family was involved with drugs in anyway, they have a right to ask their attorney to investigate this for their case. If an attorney's previous representations hinder that in any way, there is a serious conflict issue that will stick to this case like gum on the bottom of a shoe...IMO.

Yes, this is one scenario that could arise. The victims' residence was a "party" house, and I would expect the defense to play up this aspect with respect to how many seemingly random people were in the home over the course of the school year. Again, we have no idea where this case will lead, but I don't see how AT can represent BK after representing CN on drug-related charges. As an attorney for the Modens and CN, AT has access to privileged information, which may directly or indirectly relate to the Idaho murders. IMO

I think that we are definitely thinking along the same lines.

 

[Twistinginthewind]

Harkening back to the days after the four murders of Ethan, Kaylee, Madison, and Xana, and the statements made by LE in MSM about the crime scene, I can't let myself lose sight of the pain and suffering of the victims' loved ones and the trauma they are experiencing due to not only losing them all so suddenly and unexpectedly, of course, but learning about the absolutely horrific brutality of the "fixed blade" attacks that killed them. Which, IMO, is why the FBI was called in by Moscow PD right away because of the heinous nature (brutal stabbings), scope (4 people), and setting (private residence in the middle of the night) that is "beyond unusual", IMO.

What has kept me on edge from the beginning about these murders is this underlying feeling of dread about the way in which they were committed. IMO, it's almost as if the killer had a goal they set for themselves to up the ante with a superlative/superceding type of vicious killing spree that "had never been seen before" in that community that they either figured would prove daunting for Moscow PD, or they did to gather some sort of experimental evidence on LE's response to extreme conditions like in some sort of clinical or laboratory setting.

The way in which the victims were killed still unnerves me to no end, regardless of the specifics that have been revealed in the affidavits regarding search warrants and BK's arrest, and the attendant drama surrounding this very tragic, complex, and high profile case. Standing strong through all the public hoopla with the loved ones of the four victims and eagerly awaiting justice for them all! JMOO

Cops shocked by scene of University of Idaho slayings: ‘Blood everywhere’​

NYPost
Yaron Steinbuch
November 16, 2022

"Authorities said Tuesday that the bloody scene where four University of Idaho students were slaughtered with a knife was the “worst they’ve ever seen” – as people on campus unnerved by the shocking crime skip town early for Thanksgiving.

Law enforcement sources told the Daily Mail that the victims bled out after being butchered in the off-campus home, and described the scene as the “worst they’ve ever seen.”

“There was blood everywhere. We have investigators who have been on the job for 20, even 30, years, and they say they have never seen anything like this,” a police source close to the probe told the outlet."

Cops shocked by scene of University of Idaho slayings: ‘Blood everywhere’

 

[Chrissymick]

Based on the facts we know, I think it's unlikely there exists an actual conflict that would require recusal. Curious if any legal ethics professionals have a different view (I am a lawyer, but that is not my field).

Idaho Rule of Professional Conduct 1.7(a) provides that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” Idaho Rule Prof’l Conduct 1.7(a). A concurrent conflict of interest exists if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.” Idaho Rule Prof’l Conduct 21.7(a)(2 Comment 8 explains that “[t]he mere possibility of subsequent harm does not itself require disclosure and consent.” Idaho Rule Prof’l Conduct 1.7 cmt. 8.

The possible conflicts cited here are quite speculative.

 

[kittythehare]

Based on the facts we know, I think it's unlikely there exists an actual conflict that would require recusal. Curious if any legal ethics professionals have a different view (I am a lawyer, but that is not my field).

Idaho Rule of Professional Conduct 1.7(a) provides that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” Idaho Rule Prof’l Conduct 1.7(a). A concurrent conflict of interest exists if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.” Idaho Rule Prof’l Conduct 21.7(a)(2 Comment 8 explains that “[t]he mere possibility of subsequent harm does not itself require disclosure and consent.” Idaho Rule Prof’l Conduct 1.7 cmt. 8.

The possible conflicts cited here are quite speculative.

Re 8.
She has not yet received full disclosure from prosecution.
Suppose one of her former clients were to testify for prosecution in relation to a call made by them to a victim or vice versa, the time of which places the suspect in the actual house, making noise or whatever and if that time is disputed and I foresee raging battles about precise timings based upon the the PCA which I do realise is a very brief flash.. she would not have been aware of that kind of 'subsequent harm' when she took the case but it could be a huge issue?

 

[Dialectic]

The real conflict here is giving a suspect ANY opportunity to appeal. To me that is common sense, why even go there. Suspects look for every reason to appeal.

AT dropping CN and taking the BK case isn’t warm and fuzzy but that’s not the imminent concern, an appeal is.

I agree. There doesn't have to be a legal or ethical conflict of interest to be a problem. All there has to be is the appearance of conflict of interest and it is a problem that could potentially lead to an appeal if BCK is convicted.

 

[CGray123]

Yes, this is one scenario that could arise. The victims' residence was a "party" house, and I would expect the defense to play up this aspect with respect to how many seemingly random people were in the home over the course of the school year. Again, we have no idea where this case will lead, but I don't see how AT can represent BK after representing CN on drug-related charges. As an attorney for the Modens and CN, AT has access to privileged information, which may directly or indirectly relate to the Idaho murders. IMO

I think that we are definitely thinking along the same lines.

If we know the King Street house was a party house where drugs were often distributed (if only by partygoers) wouldn't the police and PD investigators have known this from the beginning? Surely both agencies know of the Mogen and Kernodle drug cases, past and present. Wouldn't Wouldn't they and the King Street survivors have been asked about the possibility that a conflict over drugs was the motive for the slaughter? Quite independent of confidential communications with the PD?

Since we're speculating on hypotheticals, I'll suggest that investigators for both agencies have been looking at this from the beginning, and have independently concluded it's a dead end.

 

[hafom8840]

Is BK in solitary confinement?

 

[Cassady]

Based on the facts we know, I think it's unlikely there exists an actual conflict that would require recusal. Curious if any legal ethics professionals have a different view (I am a lawyer, but that is not my field).

Idaho Rule of Professional Conduct 1.7(a) provides that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” Idaho Rule Prof’l Conduct 1.7(a). A concurrent conflict of interest exists if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.” Idaho Rule Prof’l Conduct 21.7(a)(2 Comment 8 explains that “[t]he mere possibility of subsequent harm does not itself require disclosure and consent.” Idaho Rule Prof’l Conduct 1.7 cmt. 8.

The possible conflicts cited here are quite speculative.

As an attorney how do you fully investigate a past client for a current client when the subject of the past representation is exactly what the current client wants you to investigate?

And doing so without "materially limiting" either your ability to investigate for the current client or keep confidences of the former client?

Forwarding to trial, is the attorney able to stand up in court and argue that the former client's involvement with the illegal drug world or any past charges or convictions, including those that she represented them on, provides motives for others to commit these horrible crimes and not her current client?

IMO it is a dance most attorneys would not try to do because of the potential conflict issues...IMO.

 

[ExpectingUnicorns]

Based on the facts we know, I think it's unlikely there exists an actual conflict that would require recusal. Curious if any legal ethics professionals have a different view (I am a lawyer, but that is not my field).

Idaho Rule of Professional Conduct 1.7(a) provides that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” Idaho Rule Prof’l Conduct 1.7(a). A concurrent conflict of interest exists if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.” Idaho Rule Prof’l Conduct 21.7(a)(2 Comment 8 explains that “[t]he mere possibility of subsequent harm does not itself require disclosure and consent.” Idaho Rule Prof’l Conduct 1.7 cmt. 8.

The possible conflicts cited here are quite speculative.

Chrissymick, I respect your opinion and references. What I have little confidence is the use of the term 'significant risk' in the quoted rule. 'Significant risk' is very ambiguous and varies almost as much as multiple opinions. MOO

 

[GA_Peach]

If we know the King Street house was a party house where drugs were often distributed (if only by partygoers) wouldn't the police and PD investigators have known this from the beginning? Surely both agencies know of the Mogen and Kernodle drug cases, past and present. Wouldn't Wouldn't they and the King Street survivors have been asked about the possibility that a conflict over drugs was the motive for the slaughter? Quite independent of confidential communications with the PD?

Since we're speculating on hypotheticals, I'll suggest that investigators for both agencies have been looking at this from the beginning, and have independently concluded it's a dead end.

I would think so, but law enforcement is going to be on the prosecution's side. Let's for a minute assume the defense wants to look as possible drug use or a possible drug deal gone wrong as a motive for this crime... you know because their client is innocent. The defense may start by asking, "Who do the victims know that used drugs?" Do you see any problems?

 

[Chrissymick]

Re 8.
She has not yet received full disclosure from prosecution.
Suppose one of her former clients were to testify for prosecution in relation to a call made by them to a victim or vice versa, the time of which places the suspect in the actual house, making noise or whatever and if that time is disputed and I foresee raging battles about precise timings based upon the the PCA which I do realise is a very brief flash.. she would not have been aware of that kind of 'subsequent harm' when she took the case but it could be a huge issue?but h

Honestly, I'm not sure that would be a material conflict of interest and I also don't think anything indicates that occurred. But let's say that came to light later, the PD or prosecutor could seek to recuse if and when this comes up. Ideally, the PD or any lawyer would be aware of or anticipate these conflicts early on so as not to have to recuse in the midst of a case. The prosecution also has an interest in making the PD's office aware of potential conflict earlier on.

But just a potential conflict that is unlikely to occur is not going to recuse. And you while you can appeal a conviction on many grounds including conflicts, that's not a winnable issue given the facts we currently now.

 

[Chrissymick]

As an attorney how do you fully investigate a past client for a current client when the subject of the past representation is exactly what the current client wants you to investigate?

And doing so without "materially limiting" either your ability to investigate for the current client or keep confidences of the former client?

Forwarding to trial, is the attorney able to stand up in court and argue that the former client's involvement with the illegal drug world or any past charges or convictions, including those that she represented them on, provides motives for others to commit these horrible crimes and not her current client?

IMO it is a dance most attorneys would not try to do because of the potential conflict issues...IMO.

That would only be if the PD's office had acquired information protected by privilege/ or is confidential that is material to this matter. If there is a legitimate, fact-based argument that Xana's mom associates had anything to do with this case then perhaps. But there's nothing that indicates as such. Anyway, I get it it's complicated, but I think there's a lot of hand wringing about speculative conflicts that are irrelevant.

 

[kittythehare]

Honestly, I'm not sure that would be a material conflict of interest and I also don't think anything indicates that occurred. But let's say that came to light later, the PD or prosecutor could seek to recuse if and when this comes up. Ideally, the PD or any lawyer would be aware of or anticipate these conflicts early on so as not to have to recuse in the midst of a case. The prosecution also has an interest in making the PD's office aware of potential conflict earlier on.

But just a potential conflict that is unlikely to occur is not going to recuse. And you while you can appeal a conviction on many grounds including conflicts, that's not a winnable issue given the facts we currently now.

I presented a hypothetical, not an opinion.

 

[Cassady]

Honestly, I'm not sure that would be a material conflict of interest and I also don't think anything indicates that occurred. But let's say that came to light later, the PD or prosecutor could seek to recuse if and when this comes up. Ideally, the PD or any lawyer would be aware of or anticipate these conflicts early on so as not to have to recuse in the midst of a case. The prosecution also has an interest in making the PD's office aware of potential conflict earlier on.

But just a potential conflict that is unlikely to occur is not going to recuse. And you while you can appeal a conviction on many grounds including conflicts, that's not a winnable issue given the facts we currently now.

IMO there is a difference between the ethical COI issue and the appeal of a criminal case. A defendant could lose a COI appeal in the criminal case for harmless error and the attorney could still face discipline for a COI issue. Most attorneys are not going to analyze this sort of COI by whether or not the defendant will win an appeal, but whether or not the potential COI or COI will materially limit their representation of a client...IMO

 

[ExpectingUnicorns]

It seems our judicial system is speculating that this will be a capital case. They have even, evidentially, put so much weight on this speculation that it has restricted the pool of public defenders from which they can draw.
Why then, isn't the same weight given to the speculation of conflict of interest?

As though it's good and wise to speculate on one issue but irrelevant on the other?