- An Idaho judge has expanded her gag order in the case of Bryan Kohberger, the suspect accused of fatally stabbing four University of Idaho students, forbidding attorneys representing victims, victims’ families, and witnesses from speaking publicly about the case.
- Experts argue that this undermines attorneys’ freedom of speech and shields the criminal justice system from public scrutiny.
- The order also has implications for the news media attempting to cover the Idaho murders.
On Wednesday, the Idaho judge presiding over the case of Bryan Kohberger, the suspect suspected of fatally stabbing four University of Idaho students last year, increased her gag order, prohibiting attorneys representing victims, victims’ families, and witnesses from publicly discussing the case.
Kohberger, 28, is charged with four counts of first-degree murder in the murders of Kaylee Goncalves, Madison Mogen, Xana Kernodle, and Ethan Chapin.
Attorneys representing the students’ families have been vocal on the issue, responding to media requests, issuing comments, and even commenting on important events such as Kohberger’s arrest and the publication of police papers.
However, Judge Megan Marshall’s recently modified gag order prohibits “any attorney representing a witness, victim, or victim’s family” from making any statements regarding the case that are not based on official public documents.
Previously, the injunction only extended to prosecutors and Kohberger’s defence counsel.
The attorneys are no longer able to comment publicly about the victims’ personalities.
Though the injunction does not directly prohibit a victim or a victim’s relative from publicly discussing the issue, several victims’ relatives have used their attorneys as spokesmen, allowing them to manage the media frenzy on their behalf.
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According to experts, courts throughout the country are becoming more lenient when it comes to issuing gag orders in criminal cases, a practise that some contend weakens attorneys’ freedom of expression and hides the criminal justice system from public scrutiny.
Margaret Tarkington, an Indiana University law professor who specialises in lawyers’ First Amendment rights, told Insider that the court in the Kohberger case was stepping in “murky waters” by including the victims’ counsel.
“I believe there’s a very strong argument that prohibiting victims from making remarks would be unlawful,” Tarkington said.
“That undermines the entire right to public access to criminal processes, which is fundamental to the American justice system — the concept that we will not have secret criminal hearings.”
While gag orders frequently ban prosecutors and defence counsel from discussing their cases, it’s unknown how prevalent gag orders against victims and their relatives are.
According to Ken Paulson, director of the Middle Tennessee State University Free Speech Center, while the practise was likely “not unique,” it would be difficult to explain in this circumstance.
“It’s difficult to comprehend why the attorneys representing the victims’ families should be denied their right to free expression, especially in a situation when the specifics of the crime and the name of the accused are well known,” Paulson said.
According to David Heller, deputy director of the Media Law Resource Center, the gag order has consequences for the mainstream media covering the Idaho killings.
“While this order does not outright gag the press, it does so more subtly by censoring all sources of information about the case — including, most widely, the victims’ advocates,” Heller said to Insider. “A fair trial is essential, but so is aggressive press coverage of court proceedings.”
He further stated that gag orders are rarely issued before arguments over fair trial issues arise.
According to Jon Bruschke, a professor at California State University, Fullerton who has researched pretrial publicity, research reveals that gag orders are frequently unsuccessful.
With or without the protection of a gag order, the great majority of criminal defendants who go to trial are convicted.
According to Bruschke, much of the pretrial publicity in a criminal case occurs months or even years before the trial begins.
In Kohberger’s case, the next hearing isn’t for another five months, and a trial might start even later.